Question: What Do David Barron and Jay Bybee Have in Common?

Answer: They were both nominated for a lifetime appellate court seat even as the Executive continued hiding their controversial OLC opinions.

Several hours ago, Barack Obama nominated David Barron, author of the notorious OLC memos authorizing the assassination of an American citizen with the kind of “due process” the Executive Branch gives, by itself, in secret, to serve on the First Circuit.

Yet even while Obama moved to make Barron a lifetime appointed judge, the FOIA suits to liberate the troubling opinion Barron authored continues at a snail’s pace. CIA filed an intransigent opinion back in August in the more general suit (that would, however, probably return Barron’s opinions). In a response a few weeks ago, the ACLU suggested that such frivolous claims could only serve to forestall the time when it will have to release the assassination-related documents.

The CIA’s blanket “no number no list” response is utterly deficient—indeed, it is so plainly inadequate that it verges on the frivolous. To justify a “no number no list” response, the agency must establish that not even one responsive document can be described, in any way,without revealing information that falls within FOIA’s exemptions. The CIA cannot carry this burden, and its brief barely makes the attempt. The agency’s “no number no list” response is so obviously deficient that one can only assume that the CIA’s goal is not to prevail on this motion but simply to delay as long as possible the day on which the agency will finally be required to explain what documents it is withholding and why.

While, when Bybee was confirmed to the Ninth Circuit, we had no idea about the Yoo-authored torture memos he rubber-stamped, we do know what one (of two) of Barron’s OLC opinions look like from the White Paper leaked to hasten John Brennan’s confirmation in February.

And at least from what we see, the authors of such an opinion have no business on a court. For starters, that’s because it suggested the Courts have no role in adjudicating the assassination of an American citizen.

Similarly, paragraph 23 (section IIC) refuses any review from Article III courts by invoking military (AUMF) operations to apply to some very spooky language.

Were a court to intervene here, it might be required  inappropriately to issue an ex ante command to the President and officials responsible for operations with respect to their specific tactical judgement to mount a potential lethal operation against a senior operational leader of al Qa’ida or its associated forces. And judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.

I get that Courts shouldn’t be making battlefield decisions. But in spite of the fact this passage invokes the AUMF twice, the invocation of “officials responsible for operations” falls far short of limiting the assertions to just the military.

In other words, it’s another instance where the white paper asserts a claim that is uncontroversial for the military to apply to the CIA as well.

Perhaps more troubling, it suggests if the President orders the CIA to assassinate an American citizen, it is legal.

[T]he white paper effectively argues (though it doesn’t say so) that the President may, under Article II power alone, authorize the CIA to kill a U.S. citizen.

Similarly, under the Constitution and the inherent right to national self-defense recognized in international law, the President may authorize the use of force against a U.S. citizen who is a member [note, they’ve dropped the senior operational leader modifier here!] of al-Qa’ida or its associated forces who poses an imminent threat of violent attack against the United States.

And just to be sure, the following paragraph again adopts the dual structure, and ends by says killing an American under such circumstances isn’t assassination because the President authorized it.

In fact, several of the claims Martha Lutz, the CIA person designated to lay out why CIA cannot reveal more details, point to covert actions that would be authorized by Presidential authorization.

Similarly, references to “legal memoranda” from either the CIA’s Office of General Counsel or the Department of Justice would reveal the extent to which the CIA’s involvement required formal legal analysis, which would raise the same concerns discussed above.


Theoretically, such involvement could be based on not only the CIA’s foreign intelligence gathering functions, but also its ability to conduct covert action and other activities as directed by the President.


Hypothetically, if it was officially confirmed that the CIA possesses this extraordinary authority, it would reveal that the CIA had been granted authorities against terrorists that go beyond traditional intelligence-gathering activities.

Which is all consistent with what then CIA and currently DOD General Counsel Stephen Preston said last year.

That is, there’s reason to wonder whether Barron gave legal rubber stamp to the kind of unilateral authority that has no place in a democracy.

And yet, if the Obama Administration has its way, that won’t become public before Barron’s nomination gets considered.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

14 replies
  1. Phil Perspective says:

    And yet, if the Obama Administration has its way, that won’t become public before Barron’s nomination gets considered.

    If Senate Democrats had any guts they’d shit-can Barron’s nomination.

  2. masaccio says:

    He sounds like a great judge candidate. He should be on the FISA court. He’s a natural for our Security Theater; maybe someone could send his head shot to the Producer, Obama, and the Director, Roberts.

  3. P J Evans says:

    What do they have in common?
    Being dishonest lawyers who do whatever the client says, even if it’s illegal and unconstitutional.

  4. bevin says:

    “If Senate Democrats had any guts they’d shit-can Barron’s nomination”

    Only authoritarians or Obama cultists (yes I realise there is an overlap there) can be counted on to support a nominee with this kind of record.
    A coalition of neither of the above could stop him. Rand Paul, has already filibustered on this very matter, has he not?
    One thing is certain: the stars are aligned very differently than they were when Bybee’s nomination came up and all republicans were neo-cons and the few democrats who weren’t were scared of being found out.

  5. C says:

    I believe that this appointment would go first to the Senate Judiciary committee. The membership of the committee can be found here:

    Fortunately the committee is headed by Patrick Leahy who has objected in principled terms to this kind of thing in the past. Unfortunately it also includes those principled Civil libertarians Diane Feinstein, Lindsey Grahm, and Chuck Grassley so the deck is definitely stacked against any serious effort to block him in committee. The lone wild card may be Ted Cruz who is the junior republican member.

    @bevin: Rand Paul also said after the filibuster that he had no problem using drones to kill someone coming out a liquor store with a gun. He later claimed that wasn’t what he meant but his record is a little mixed. See:

  6. bmaz says:

    @C: No, Leahy will carry the water for Barron in Committee and the nomination will pass out of there with only moderate questioning at best.

  7. emptywheel says:

    @bevin: I actually think Barron (like Marty Lederman) was a decent or even good lawyer before his stint in OLC.

    But the problem is every lawyer who goes in there, just about, believes they must serve their customer and in this case that means writing shitty opinions that no one will ever be able to challenge to justify unlimited exec power.

  8. Peterr says:

    While, when Bybee was confirmed to the Ninth Circuit, we had no idea about the Yoo-authored torture memos he rubber-stamped, we do know what one (of two) of Barron’s OLC opinions look like from the White Paper leaked to hasten John Brennan’s confirmation in February.

    And at least from what we see, the authors of such an opinion have no business on a court.


    They might, however, have business *in* a court, sitting at the table reserved for the defense.

  9. Peterr says:

    @emptywheel: If that’s what he believed when he got to DOJ, then he was hardly a decent, let alone good lawyer. A good lawyer does not put the client ahead of the law, but defends/represents them within the law.

    He’s more of a conspirator to obstruct justice.

    “Serving the client” does not mean enabling them to practice illegal activities.

  10. What Constitution? says:

    I find the most existentially tragic fact about this appointment to be this: President Obama did not have to appoint a man willing to whitewash a practice of presidential assassination — he is doing this because he wants to do this. This provides insight into a great many things about Barack Obama.

  11. C says:

    @Peterr: I have to agree with you on this one Peterr. In most state bars knowingly covering violations of the law or going against your own understanding of it is grounds for revoking your license. Noone ever ever enforces it however.

  12. C says:

    @bmaz: You don’t think that a thurough public discussion or tough noises from other quarters could force him to act?

    By way of comparison the House Judiciary committee has some dedicated individuals like Jason Chaffetz and Judy Chu and some dedicated opponents of the administration such as Peter King, Louis Gohmert, and Daryl Issa. While the house doesn’t govern appointsments it is in their power to raise the issue of his fitness. I wonder if any of them might.

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