Why Should Someone Who Authorized Due Process Free Executions Be A Judge Anyway?

Yesterday, Rand Paul announced he would filibuster the nomination of First Circuit nominee David Baron until the Administration released the OLC memo authorizing the killing of Anwar al-Awlaki, as ordered by the Second Circuit last month.

As I wrote in a piece at The Week, I think this move is far more serious a political move than Paul’s earlier filibuster of John Brennan (and since you all know how I fell about Brennan, that’s saying something).

Four years ago, David Barron opened a Pandora’s box, giving presidents an inadequately limited authority to kill Americans outside all normal judicial process. As Paul notes in his letter, it would simply be “irresponsible” for the Senate to confirm his nomination without discovering what the memo could reveal about his views on due process, civil liberties, and international law. In a letter to all 100 senators, the ACLU echoed this language, recalling the precedent of Jay Bybee. “No senator can meaningfully carry out his or her constitutional obligation to provide ‘advice and consent’ on this nomination to a lifetime position as a federal appellate judge without being able to read Mr. Barron’s most important and consequential legal writing.”

The Senate took such an irresponsible step in 2003 with Jay Bybee. It can avoid that mistake here.

Apparently, I’m not alone. Senators Udall and Wyden have both said they would not vote to advance Barron’s nomination without more transparency on that memo  (and remember — they’ve seen it).

Given that makes almost enough people (the GOP plus potentially 6 Democrats under the new filibuster rules) to hold up Barron’s nomination, Obama is making yet another limited hangout, permitting Senators to go read the drone-killing memo in a SCIF.

On Tuesday, the White House offered the senators a concession. It offered all senators to a chance to look at the legal opinion. However, Obama has still not acceded to the Paul and Udall’s call for public disclosure of the memo.

“I can confirm that the administration is working to ensure that any remaining questions member of the Senate have about Mr. Barron’s legal work at the Department of Justice are addressed, including making available in a classified setting a copy of the Al-Awlaki opinion to any senator who wishes to review it, prior to Mr. Barron’s confirmation,” White House Press Seceretary Jay Carney said at a daily briefing for reporters.

“It should be noted that last year members of the Senate Judiciary Committee had access to the memo and in his committee vote Mr. Barron received unanimous Democratic support,” Carney said, referring to a January panel vote in which all Republicans opposed the nominee. “We are confident that David Barron wil be confirmed to the 1st Circuit Court of Appeals and that he will serve with distinction.”

So Senators will get to see it. But not the public (even though a court has ordered its release!).

The President of the United States, of the purported most Transparent Administration Evah™, thinks it appropriate to have the Senate vote on a lifetime appointed Circuit Court judge without the public seeing one of that nominees’ most momentous legal arguments ever.

The President thinks it appropriate to control access to information about a nominee who vastly expanded Executive Power.

And ultimately, it’s time this discussion moved to whether the opinion is itself disqualifying.

In a comment to NYT, Wyden put it this way.

Mr. Wyden added that he was also not committed to voting yes.

“Certainly the opinion would not be something I would have written. The question is: Is it disqualifying,” he said, adding that the administration should start the process of releasing the memos. “It needs to be addressed before a vote.”

Frankly, I don’t care how nice or how liberal Barron is. I feel about him like I feel about Jay Bybee. Someone who gets nominated after having rubber stamped such awful executive authorities should not be rewarded with a lifetime seat interpreting the law, because he has already been compromised.

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.

16 replies
  1. earlofhuntingdon says:

    If Mr. Barron caved on his principles in order to stay at the OLC, or in exchange for an appointment such as this one (relevant actors would deny any such explicit tie-ins, just as they would not be actors if they failed arrange them), he will cave again on the federal bench.

    • emptywheel says:

      Interestingly, the memo was written after Barron announced his departure.

      I bet there some interesting issues of timing,akin to things we saw from Goldsmith. NOt that it excuses it, but it does suggest there’s a back story.

  2. ArizonaBumblebee says:

    Mr. David Baron is the Democrats’ version of Professor John Yoo. Both of them have been compromised by their legal views on what is permissible in the conduct of the GWOT, and neither should ever be a federal judge dispensing justice. It is increasingly obvious to me that there isn’t a dime’s worth of difference between the administrations of George W. Bush and Barack Obama on matters relating to individual civil liberties or national security. President Obama doesn’t want to release the legal memo discussed above because it would cause a public outcry and would eviscerate any remaining credibility to his pledge to conduct his administration in a transparent manner that is consistent with our values and the Constitution- a key promise from his campaign for president in 2008.

  3. GKJames says:

    You highlight an idea that one would think is so obvious that it needn’t be stated: due process–not least when it comes to the state’s use of deadly force–is at the core of this grand experiment in democracy and, therefore, a non-partisan issue. And if that’s really not the case, one would think that the Senate would be unanimous in compelling the president to abide by his obligation to uphold the Constitution. Like Bush before him, of all the competent lawyers and jurists in the country, Obama wants to give a lifetime sinecure to a morally, ethically, and intellectually challenged one. Woeful.

  4. Denis says:

    Where is Julian when we really need him?? And, sadly for an open democracy . . . we really need him.

  5. orionATL says:

    some other reasons, though not the main, barron should not be confirmed are:

    – to demonstrate that not all senators of a president’s party will vote lockstep for a president’s nominee no matter the nominee’s professional conduct

    – to set a precedent that a government lawyer who does a president’s bidding is not entitled to a presidentially bestowed judgeship, i.e., the president is to nominate a candidate in consultation, not ex cathedra.

    • earlofhuntingdon says:

      Sadly, Mr. Obama has intentionally made hundreds too few judicial nominations. This is purportedly so as not to “detract from his agenda”. It’s really to avoid admitting how conservative and opportunistic he is. It makes it harder, but not impossible, to refuse him when he deigns to make an appointment, which is the whole idea.

      As for the purported rationale of not detracting from his agenda, Mr. Obama willingly confuses his discretionary agenda with a constitutionally-mandated part of his job. It’s a sleight of hand he also uses to get around other seemingly mandatory constitutional rules.

  6. bloopie2 says:

    So the Prez has “compromised”, authorizing the Senators to review the opinion “in camera”. Well, Prez, that’s no good. Likely the opinion is persuasive on its face, like most appellate briefs, for example, which only seem poor when read in contrast to the opposing side’s brief. You don’t want to give the Senators a chance to see a rebuttal, do you, Prez? Asshole.

  7. earlofhuntingdon says:

    The executive, and, it seems, Congress’s, idea of “due process” is close to the Roman Catholic Church’s idea of due process in the context of forced baptism (see, The Kidnapping of Edgardo Mortara), or the Mormon church’s forced baptism of already-deceased WWII-era Jews.

    The disregard or abandonment of due process is put down to saving someone from an existential or eternal threat, whether a specific alien “other” or just eternal damnation. It’s really about unfettered power over people and the ideas in their heads, and not being accountable for wanting it and using it.

  8. john francis lee says:

    ‘ Certainly the opinion would not be something I would have written. The question is: Is it disqualifying ‘
    .
    This is all a sick show. They’ll all vote for him and we won’t even see the memo.
    .
    This is what we have instead of government of, by, and for … and we like it, apparently.
    .
    The disgrace is that – like the weather – everybody talks about it, none of us does a thing about it.
    .
    Even if we are ‘resigned’ to live as corporate slaves we have no right to consign the rest of the world to terror and assassination, and their governments to oblivion.

  9. chronicle says:

    quote”On Tuesday, the White House offered the senators a concession. It offered all senators to a chance to look at the legal opinion. However, Obama has still not acceded to the Paul and Udall’s call for public disclosure of the memo.

    “I can confirm that the administration is working to ensure that any remaining questions member of the Senate have about Mr. Barron’s legal work at the Department of Justice are addressed, including making available in a classified setting a copy of the Al-Awlaki opinion to any senator who wishes to review it, prior to Mr. Barron’s confirmation,” unquote

    I’m absolutely positive now the grandfather of Al-Awlaki is praying to HIS god that these scumbag pretend to be sub human cockroaches will burn in hell for eternity.

    I know as a father…if this exhibit of USG murder of MY son happened the way this whole absurd and history making usurpation of the Constitution, notwithstanding the murder of my son…I would …. fill in the blank.

  10. Oyez my infamous redeye says:

    CIA puts murderers on the bench for the same reason they put torturers on the bench. Only criminals are sufficiently committed to impunity. Brennan will go to the mat for Barron to make it clear he is above the law.

  11. bloopie2 says:

    Speaking of drones, I have this question. USA says that we are at war with Al Qaeda, and therefore if we identify some of them who are, we have good reason to believe, going to (imminently) attack us, then we have a right to kill them. Right? By that logic, does Al Qaeda, which clearly has good reason to believe we are going to (imminently) attack them, then have a right to kill us?

    • P J Evans says:

      By that logic, yes.
      I don’t know what it would take to get the idjits in government who think that’s a good way to handle things (along with the ones who decided it was okay for us to torture ‘strenuously interrogate’ prisoners) to recognize the same reasoning can be used by other countries.
      Teh stoopid, it burns.

  12. C says:

    The more this goes on the more clear it should be to Obama what the costs of “moving forward” really are. Legal limits only work when punitive results are in place. Clearly he is trying to reward Barron. The fact that he has too is reason enough to assume that the memo is crap.

    But now would be a good time to push these particular senators to stand firm. Paul certainly has nothing to lose by this and we have everything to gain by keeping Barron off the bench.

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