The Barron Nomination and the Second Circuit Drone Case

The Obama Administration has not yet announced whether it will appeal a recent Second Circuit order to disclose an Office of Legal Counsel (OLC) on the legal justification for the killing of U.S. citizen Anwar al-Awlaki. Even so,the Senate will likely vote this week to confirm the co-author of the Awlaki memo, David Barron, for a judgeship on the First Circuit Court of Appeals. Senator Rand Paul has announced he plans to filibuster, but he will not be successful unless five Democrats either vote against cloture or against Barron’s confirmation. So far, only one Democrat has said he will vote against confirmation: Senator Mark Udall of Colorado. (Udall has not publicly stated how he will vote on cloture.)

OpenTheGovernment.org strongly supports compliance with the Second Circuit order. We have written to the Department of Justice asking them not to appeal, and to provide Congress with greater access to OLC opinions. We take no position on how senators should vote on either cloture or the Barron nomination. But there seems to be widespread misunderstanding by the press, legal experts, and possibly some members of the Senate about the current state of Congressional oversight over the targeted killing program:

1. There are approximately seven OLC opinions on targeted killing the Senate has never seen, and the Obama administration will not comment on whether Barron wrote any of them.

A number of news and opinion articles proceed on the assumption that Senators have now been given access to all the OLC memos on targeted killing that Barron wrote or signed. Harvard Law professors Laurence Tribe and Charles Fried wrote in the Boston Globe that “[s]ome have argued that the Senate should not vote to confirm Barron until its members review the OLC memos, but that point is now moot because the White House has made unredacted versions available to every senator.”

But the White House has not made all of the OLC memos on targeted killing available to Senators, and refuses to say whether it has provided all of Barron’s targeted killing memos. Senator Dianne Feinstein said last year that there were at least seven other written OLC documents evaluating the legal basis of the targeted killing program that no member of the Senate has ever been able to read. Those memos likely do not examine the constitutional issues with targeting U.S. citizens, but they might well explain the legal basis for “signature strikes,” what definitions of “civilian” and “combatant” the intelligence community uses, and what standard of evidence is required to place a suspect on a “kill list.”

Despite the controversy over the Barron nomination, the Intelligence and Judiciary committees have not received access to any previously withheld drone memos—and no one is willing or able to comment on how many of those memos were authored or signed by Barron.

According to White House spokesperson Eric Schultz, “[t]he Administration has made available unredacted copies of all written legal advice issued by Mr. Barron regarding the potential use of lethal force against U.S. citizens in counterterrorism operations.” [emphasis added]. But asked directly whether Barron was the author of any of the withheld OLC targeted killing memos, Schultz chose not to answer. Senators’ statements are also deliberately ambiguous on this point, and staffers have declined to elaborate further.

Laura Murphy, head of the ACLU’s Washington office, has said that “the White House has continued to play hide the ball by not providing all of the opinions written or signed by Mr. Barron on targeted killing, regardless of citizenship.” If the administration could honestly say that this is untrue, and they had provided Senators with all of Barron’s writings on targeted killing at OLC, presumably they would do so.

2. Many commentators are underestimating the importance of the Second Circuit’s recent ruling on public disclosure of the drone program, and the likelihood that the Obama administration will appeal that ruling absent political pressure.

Supporters of Barron’s nomination have argued that it is unfair or misguided for senators to tie their vote on Barron’s nomination to the administration’s decision on whether to appeal the Second Circuit decision. According to Professors Tribe and Fried:

it is likely that the memos will be released in short order: Either the administration will not appeal the court’s ruling, or the ruling will be upheld on appeal. Without doubt, holding up Barron’s nomination will not expedite the release of any memo.

Georgetown Law Professor David Cole wrote that the Second Circuit ordered disclosure of Barron’s al-Awlaki memo in part “because much of its reasoning had already been made public in the White Paper, and so the public “has a good sense of what it says.” In any case, Cole argued, “Barron has no control over that decision, and should not be held hostage to it.”

Professors Cole, Tribe and Fried are correct that Barron has no direct control over the administration’s decision on whether to contest or comply with the Second Circuit order. But Senators have some reason to link the issues. The Obama administration has generally only made concessions to Senators on access to OLC targeted killing memos when Senators threatened to filibuster a nomination. It was during John Brennan’s confirmation process for CIA director that Senators were first provided with access to any OLC drone memos. It was during Barron’s that all Senators were given the opportunity to read the memos previously shown only to the Intelligence and Judiciary Committees.

Cole, Tribe, and Fried also understate both what is at stake in the Second Circuit case and the likelihood that the Obama administration will appeal. The Second Circuit specifically ordered that the government not redact from the public version of the Barron memo “the identity of the agency, in addition to [the Department of Defense], that had an operational role in the drone strike that killed al-Awlaki.”

It is common knowledge that the agency in question is the CIA—but according to the Obama administration, it is also a state secret. The refusal to admit the CIA’s role in targeted killing is one of the most crucial barriers to meaningful investigation or oversight of the drone program.

Concealing the CIA’s role is one of the primary reasons that the administration refuses to provide details about specific lethal strikes, even where independent reporters and human rights groups have documented civilian casualties. Many of these strikes have occurred in Yemen, whose government openly acknowledges its support for U.S. targeted killing operations. These include the October 14, 2011 strike that killed 16-year-old U.S. citizen Abdulrahman al-Awlaki; a cruise missile attack in December 2009 that killed up to 41 villagers in al-Majala, Yemen; and, most recently, a December 12, 2013 strike that hit a wedding convoy in Bayda province in Yemen and killed a dozen people.  The Obama administration refuses to provide any details about Abdulrahman al-Awlaki’s death other than to say he was not “specifically targeted.” It will not acknowledge the other strikes at all.

According to press reports, the December 2013 wedding convoy strike, like the al-Majala strike before it, was carried out by Joint Special Operations Command rather than the CIA. The CIA may have even warned JSOC that its intelligence was not strong enough. Three anonymous intelligence officials told the Associated Press the United States had investigated the deaths and found that, contrary to numerous eyewitness reports and admissions from the Yemeni government, no civilians had been killed. But the officials said they couldn’t release details

because both the U.S. military and the CIA fly drones over Yemen. By statute, the military strikes can be acknowledged, but the CIA operations cannot. The officials said that if they explain one strike but not another, they are revealing by default which ones are being carried out by the CIA.          

Whatever one’s views of Barron’s nomination, and whatever the outcome of his confirmation vote, this needs to end. Democratic Senators who vote for Barron’s confirmation should not pretend that the Obama administration has given them the information they need for meaningful oversight over targeted killing, or fulfilled its promises about transparency. Republican Senators who vote against Barron should continue to oppose excessive secrecy about the drone program even though it may no longer be a useful argument against a Democratic judicial nominee.

Members of Congress from both parties should look for other opportunities to force greater disclosure about targeted killing. They could start by restoring the deleted section of the Intelligence Authorization Act that required annual reports of the number of militants and civilians killed in lethal strikes; strengthening the section of the bill on reporting of OLC opinions; or launching investigations into specific strikes and holding public oversight hearings.

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