David Barron, the author of a July 16, 2010 Office of Legal Counsel opinion on the legal basis for targeted killing of a United States citizen, has been nominated for a judgeship on the U.S. Court of Appeals for the First Circuit. Several Senators from both parties have said they will oppose Barron’s nomination unless the administration complies with the Second Circuit’s recent order to disclose the legal analysis from the July 2010 Barron memo.
In response, the administration has offered to let all members of the Senate read the memo, which was previously only made available to members of the Senate Select Committee on Intelligence and the Senate Judiciary Committee. But at least two Senators, Senator Rand Paul (R-KY) and Senator Mark Udall (D-CO), have said that is not an adequate substitute for public disclosure.
Barron himself previously signed on to a statement that said ““OLC should follow a presumption in favor of timely publication of its written legal opinions. Such disclosure helps to ensure executive branch adherence to the rule of law and guard against excessive claims of executive authority,” and “Transparency also promotes confidence in the lawfulness of governmental action.”
We agree. OpenTheGovernment.org has sent the Department of Justice a short proposal for increasing transparency and improving Congressional oversight of Office of Legal Counsel (OLC) memoranda. The proposal makes the following recommendations:
1. The Department of Justice should not appeal the Second Circuit’s order regarding disclosure of the July 16, 2010 Office of Legal Counsel opinion and other information about the legal basis for the targeted killing program.
2. Once the intelligence community conducts operations in reliance on advice in a Department of Justice Office of Legal Counsel opinion, that opinion becomes the “working law of the United States.” As such, it must be provided to the Congressional intelligence committees in order to comply with the National Security Act’s notification requirements.
3. The Office of Legal Counsel should not rule out public release of all opinions that contain classified national security information. Rather, it should:
a. redact properly-classified operational information, but publicly release its legal analysis.
b. ask the appropriate officials within the Executive Branch, including the Original Classification Authority, the Public Interest Declassification Board and/or the Interagency Security Classification Appeals Panel, to review any information that may not be properly classified.
The full OpenTheGovernment.org proposal, which takes no position on Barron’s confirmation, is available here.