How David Barron Played Judge and Jury for Anwar al-Awlaki

Rand Paul has gone and united drone apologists and opponents with an op-ed explaining his opposition to David Barron’s confirmation without full transparency on the drone memos Barron wrote. It’s a good op-ed, though the only new addition from what he has said before is that any other drone memos Barron has written ought to be on the table as well.

It’s Ben Wittes’ and David Cole’s responses that I’m reluctantly interested in.

In addition to a lot of “trust me I know the man” defenses from Cole that I find utterly inappropriate for a lifetime appointment, both Cole and Wittes argue we’ve already seen the “Administration’s” logic on drone killing, so we have no need to see the memo itself. Cole cautiously doesn’t characterize what that standard is in his defense.

Second, the administration has in fact made available to all Senators any and all memos Barron wrote concerning the targeting of al-Awlaki – the core of the issue Sen. Paul is concerned about.  So if Sen. Paul and any other Senator want to review Barron’s reasoning in full, they are free to do so.  Moreover, the administration also made available to the Senate, and ultimately to the public, a “White Paper” said to be drawn from the Barron memo (though written long after he left office).  Thus, no Senator need be in the dark about the Administration’s reasoning, and the public also has a pretty good idea as well.

Wittes, less wisely, does.

This idea of a trial in absentia followed by drone strike as a means of effectuating a death sentence is novel—and very eccentric. Paul never seeks to explain why wartime authorities are inappropriate for dealing with a senior operational leader of an enemy force who is actively plotting attacks on the United States. 

[snip]

The legal standard for targeting a U.S. citizen the administration has embraced is limited to U.S. citizens (1) who are operational leaders of AUMF-covered groups, (2) who pose an imminent threat, (3) whose capture is not feasible, and (4) whose targeting is consistent with the law of armed conflict. Suspects in Germany or Canada or any other governed space would almost surely be feasible to capture and if not, because in a hostage-like situation, would be dealt with by law enforcement, including using law enforcement’s powers at times to use lethal force. The definition of the group of citizens covered is so narrow, in reality, that it has so far described a universe of exactly one person—Al Awlaki—whom the administration has claimed the authority to target.

Wittes, you see, is certain that not only did the Administration have evidence Anwar al-Awlaki was a “senior operational leader” of AQAP by the time they executed him, but they had that evidence by July 2010 when Barron signed a memo saying that the specific circumstances at hand justified killing Awlaki. But even if he’s seen it via some magic leak, the public has not.

As I’ve noted repeatedly — and as Lawfare has been sloppy about in the past — at the time Barron signed off on Awlaki’s execution, one of the chief pieces of evidence against Awlaki — a confession Umar Farouk Abdulmutallab had given as a proffer in a plea deal that never got consummated — was undermined by Abdulmutallab’s previous confession and other evidence (and would be undermined further, just days after Awlaki’s execution, when Abdulmutallab pled guilty without endorsing the claims about Awlaki included in that confession).

Now, I suspect the government didn’t present that nuance to Barron when he wrote his memo (just as the government lied to John Yoo and a series of other OLC lawyers as they wrote torture memos). I imagine the memo starts with a caveat that says, “Assuming the facts are as you present them and no other facts exist,” absolving Barron in case the government presented only partial evidence or worse, as it appears to often do in the case of OLC memos.

But it is possible that the government gave Barron really nuanced information, and he nevertheless rubber stamped this execution, in spite of the possibility that the case Awlaki was a senior operational official of AQAP by that point was overstated. It’s possible too that there’s a great deal of evidence to counterweigh the very contradictory information on the chief claim in the public record and absent any contrary evidence Barron thought it was a conservative legal decision.

One way or another, Barron participated in a tautological exercise in which the government presented unchallenged evidence showing that Awlaki was a senior operational leader that then served as justification for setting aside due process and instead having OLC — Barron — weigh whether or not Awlaki was a senior operational leader who could be executed with no due process.

This is why (egads) Paul is right and Wittes is wrong. Because the idea of a trial before you execute an American citizen is in fact the rule, and the idea of having an OLC lawyer judge all this in secret is in fact the novelty. It doesn’t matter whether the case laid out against Awlaki applies to him and him alone (though I doubt it does; I doubt it applies as well as supporters say, and complaints about the lack of specificity of it makes it clear it could too easily be applied for others).

But the big underlying point — and the reason why Cole and Wittes’ claim that Barron can’t be held to account here, only the Administration whose policy he reviewed can be, is wrong — is that tautology. What the memo shows and the white paper does not is that Barron was provided evidence against Awlaki and he willingly played the role of both saying that the underlying legal logic (what we see in the white paper) was sound but that the evidence in this case (what we haven’t seen in the memo) made this departure from due process sound. Barron signed off on both the logic and the evidence justifying that logic itself.

And for me, that’s enough. That’s enough to disqualify him — no matter how liberal or brilliant he is, both qualities I’d like to see on a bench — as a judge.

That’s enough for me. But those who want to push Barron through anyway ought to consider what they would need to show to prove that Barron’s decision was reasonable: the evidence Barron saw that he believed sufficient (and unquestionable, given the absence of rebuttal) to authorize a due-process free execution. It’s unlikely we’ll ever get that evidence, because the government won’t declassify it.

That’s the problem with this nomination, one way or another. No matter how sound the underlying logic, Barron played another role in Awlaki’s execution, certifying that the evidence merited getting to the underlying logic of denying a US citizen due process. Barron both approved an entirely parallel system to replace due process, and played the judge in that system.

Update: Katherine Hawkins reminds me that when David Cole wrote about the white paper shortly after it got released, he had trouble with precisely the thing he has no trouble now.

The white paper addresses the legality of killing a US citizen “who is a senior operational leader of al-Qaeda or an associated force.” Such a person may be killed, the document concludes, if an “informed, high-level official” finds (1) that he poses “an imminent threat of violent attack against the United States;” (2) that his capture is not feasible; and (3) the operation is conducted consistent with law-of-war principles, such as the need to minimize collateral damage.  However, the paper offers no guidance as to what level of proof is necessary: does the official have to be satisfied beyond a reasonable doubt, by a preponderance of the evidence, or is reasonable suspicion sufficient? We are not told.

Nor does the paper describe what procedural safeguards are to be employed. It only tells us what is not required: having a court determine whether the criteria are in fact met.

What determines whether that standard has been met is the same OLC lawyer who determined that such a standard would be appropriate.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

12 replies
  1. bevin says:

    ” It’s unlikely we’ll ever get that evidence, because the government won’t declassify it.”
    And, that being the case it will be impossible for a proper judgement to be made on the merits of this candidate.
    We all have to make sacrifices in the GWOT and Barron’s will have to be to give up any hope of confirmation, in order to protect this information from becoming known.
    Can there be any alternative? Could the Senate be asked to take it on trust that the nomination really doesn’t require their advice and consent, just their assent.

  2. john francis lee says:

    I BELIEVE that killing anyone without a trial is murder and needs no serious debate. I can’t imagine appointing someone who advocates murder to the federal bench.
    .
    But this is 21st Century Amerika … and that’s exactly what’s going to happen.
    .
    I’ll write to Blake Farenthold, John Cornyn, and Ted Cruz … but I anticipate that having zero effect on the totalitarian collapse of our country.
    .
    We need to be able to recall anyone we’ve elected, or anyone appointed by anyone we’ve elected.
    .
    We cannot trust the executive, the legislative, or the judicial branches of ‘our’ government to abide by our Constitution.

    • emptywheel says:

      Farenthold doesn’t have a vote. The other two do.

      Cruz went to school with Barron at Harvard, btw, but was pretty aggressive against him at SJC and voted against there.

      The big issue is whether there are 6 Dems who will oppose him. Some conservative Dems up for election (like Begich) are lukewarm. And Wyden and Udall have said they don’t know if they’ll vote for him.

  3. Snoopdido says:

    One of the things that I believe is deliberately being hidden is just who the “client” was that David Barron wrote the Awlaki execution memo(s) for.
    .
    Both the CIA and the Department of Defense are obvious candidates since they performed the actual deed, but I wonder if the actual client was someone else.
    .
    Such as some at the White House.
    .
    If so, there are a number of possible candidates there for the client:
    .
    Was it James Jones, then National Security Advisor in July 2010?
    .
    Was it John Brennan, then chief counterterrorism advisor to President Obama?
    .
    Was it Robert Bauer, then White House Counsel, or even his immediate predecessor Greg Craig?
    .
    Or was the client President Obama himself?
    .
    The name of the actual client may be one of the major reasons behind keeping this secret.

  4. Pyongyang on the Potomac says:

    What’s going on here is that the Geneva Convention common articles (GC I, art. 49; GC 2, art. 50; GC III, art. 129; GC IV, art. 146) define certain “grave breaches” as universal jurisdiction offenses. One of those grave breaches is denial of the right to trial. The US is required to enact penal sanctions in domestic legislation, and it did. But the 2006 MCA (Act Oct. 17, 2006, P.L. 109-366, §6(b)(2), 120 Stat. 2635) undid that. It decriminalized a couple of the grave breaches including denial of the right to trial.

    So Barron is on rock-solid legal ground until he steps outside US borders. Then he’s a war criminal who directed a grave breach of the common articles. In international forums US officials handle the blatant illegality by robotically parroting certain talking points: courts or counsel are not required to kill you but purely out of the goodness of our hearts, we provide a process meeting Geneva Convention process standards. Standard Big Lie but unambiguously wrongful under the law of state responsibility, which makes domestic law irrelevant to internationally wrongful acts. In case of such serious breaches states parties to the Geneva Convention are required to seek and punish individual offenders, and the entire international community has a legal responsibility to ensure that the offending state is held to account.

    Accordingly the Human Rights Committee recommended that the US should, “Interpret the Covenant in good faith.” and “ensure that all cases of unlawful killing, torture or other ill-treatment, unlawful detention, or enforced disappearance are effectively, independently and impartially investigated, that perpetrators, including, in particular, persons in command positions, are prosecuted and sanctioned, and that victims are provided with effective remedies. The responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established. The State party should also consider the full incorporation of the doctrine of ‘command responsibility’ in its criminal law…”

    This is what is meant by isolation, which well-born dimbulb John Kerry loves to say because he heard it somewhere and it sounds intense.

  5. GKJames says:

    Agreed. It’s easy to speculate why the Administration fears disclosure of the facts more than anything else. While the “White Paper,” analytically execrable as it is, can be seen as an abstract hypothetical exercise that provides SOME evidence of the Administration’s thinking, it’s the facts that give the issue meaning. The only reasonable inference to be drawn, then, is that the facts on which the Administration relied are far from a slam dunk (to borrow a phrase), else they’d be crowing them from the rooftops. The specific fear is that disclosure of the lame basis on which they assassinated al-Awlaki — they killed him for his persuasive rhetoric — negates the happy White Paper horse-shit about the laws of war and imminent threats to Americans, etc. As for David Cole’s surrender on this important issue, it’s an understatement to say that it’s disappointing.

  6. orionATL says:

    there are lot’s of issues/reasons to rule barron unqualified. being a graduate of harvard law school is clearly one of those. as obama has demonstrated, harvard law grads can be born with good minds, but without a heart and without courage.

    the main reason i would disqualify barron, however, is his credulity.

    as a starting point, the presidential execution of al-a was highly questionable from a “damage he has done or may do” standpoint. al-a has not been directly tied to ordering any killing, including that done by nidal hassan

    a would-be judge must be highly sceptical of government/prosecution claims, and not just on natsec issues.

    we now have dozens, hundreds actually, of federal judges who are anything and everything but skeptical of federal government lawyers’ facts, claims, pleadings, and motives.

    a judge can fail the “proper level of skepticism” test in two ways:

    1. by being accepting without adequate challenge, arguments presented by gov to the court in pleadings or in argument.

    2. by accepting without challege and with strong judicial protection, what clearly are government arguments based on ideological reasonings and on evident falsehoods of fact and law.

  7. Peterr says:

    I think you omitted your reference to Charlie Pierce’s “Five Minute Rule” when discussing the Paul family when you wrote this:

    This is why (egads) Paul is right and Wittes is wrong. Because the idea of a trial before you execute an American citizen is in fact the rule, and the idea of having an OLC lawyer judge all this in secret is in fact the novelty.

    Sentencing after a trial and not before a trial is not just a nice idea.
    It’s not just a polite suggestion.
    It’s not just an intriguing proposal.
    It’s not just the right thing to do.
    It’s the law.

    And if Barron doesn’t get that, he not only should not be confirmed but should not have been in OLC to begin with.

    I imagine the memo starts with a caveat that says, “Assuming the facts are as you present them and no other facts exist,” absolving Barron in case the government presented only partial evidence or worse, as it appears to often do in the case of OLC memos.

    That’s not a caveat — that’s a hole you can drive a truck through.

  8. chronicle says:

    emptywheel said:

    quote”But it is possible that the government gave Barron really nuanced information, and he nevertheless rubber stamped this execution, in spite of the possibility that the case Awlaki was a senior operational official of AQAP by that point was overstated. It’s possible too that there’s a great deal of evidence to counterweigh the very contradictory information on the chief claim in the public record and absent any contrary evidence Barron thought it was a conservative legal decision.”quote

    Which brings us to this….

    From emptywheels link on twitter….

    http://www.bostonglobe.com/opinion/2014/05/12/david-barron-should-confirmed-court-appeals/5WHjPFvMfHqulSMWxO81CK/story.html

    Whereby Fried /Tribe use the very claim the USG have CLASSIFIED, to justify the confirmation of this flaming asshole.

    quote:”…some civil libertarians worry about the secrecy of memoranda he signed as head of the Justice Department’s Office of Legal Counsel regarding the legality of using lethal force against a specific US citizen who was an operational leader of an enemy force, neither of these concerns justifies delaying a vote, or denying Barron a seat on the First Circuit.”unquote

    A specific US citizen who was an operational leader of an enemy force. Right. Well, perhaps these halfwits will provide a copy of the memo then. Otherwise, Fried /Tribe are just another pair of USG sychophantic stenographers. whudda thunk.

    Meanwhile…Peterr said:”Sentencing after a trial and not before a trial is not just a nice idea.
    It’s not just a polite suggestion.
    It’s not just an intriguing proposal.
    It’s not just the right thing to do.
    It’s the law.

    And if Barron doesn’t get that, he not only should not be confirmed but should not have been in OLC to begin with. “unquote

    ummmm, but that’s EXACTLY the point. OFFICE OF LEGAL COUNCIL members don nee no stinkin “get it”. They only need the ability to write a fucking memo based on what ever the USG tells them. PERIOD.

    The fact is, in MY universe, this scumbag is responsible for the murder of not one, but FOUR US citizens. Instead of being confirmed to the bench, he should be facing prosecution for conspiracy to commit murder.

  9. chronicle says:

    ps..from the comment section of Fried /Tribe’s bullshit article…

    quote:”
    Perhaps Fried and Tribe can take a little time from their politickin’ for Barron and start to educate people about the separation of powers doctrine in our constitution. Barron’s defense of Obama’s unconstitutional conduct is shocking. Fried and Tribe’s defense of Barron is equally shocking. Barron in 2008 is on record, with a co-author, as saying he knows that the President can defy the Congress and get away with it:
    “Congress’s capacity to effectively check such defiance will be comparatively weak. After all, the President can veto any effort to legislatively respond to defiant actions, and impeachment is neither an easy nor an attractive remedy… Moreover, executive branch actors, particularly those attorneys helping to assure that the President takes care the law is faithfully executed, should not abandon two hundred years of historical practice too hastily.” See http://cdn.harvardlawreview.org/wp-content/uploads/pdfs/barron_lederman2.pdf, p. 1111.
    So, Barron in 2008 was critical of President George W. Bush supposedly defying Congress; and then, after Democrats take the White House, Barron disregards what he used to stand for, and takes the dive to support virtual dictatorial powers for President Obama. Fried and Tribe should be ashamed to support an ethical chameleon like Barron. “unquote

    Ethical chameleon….. priceless. god I love the internet.

    • lysias says:

      So, Barron in 2008 was critical of President George W. Bush supposedly defying Congress; and then, after Democrats take the White House, Barron disregards what he used to stand for, and takes the dive to support virtual dictatorial powers for President Obama.

      Harold Koh did the same thing. A grave disappointment for a graduate of Yale Law School like me.

  10. Synoia says:

    Barron must be appointed. To not appoint home would send absolutely the wrong message about the reward system for loyal government employees.

    It’s ridiculous to consider otherwise.

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