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The New York Times on David Barron

Benjamin Wittes
Thursday, May 8, 2014, 8:36 AM
This was bound to happen eventually, I suppose: the New York Times editorial page has gotten behind the effort to hold up David Barron's judicial nomination. Sort of. Calling Barron, whom Obama has nominated to serve on the U.S.

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This was bound to happen eventually, I suppose: the New York Times editorial page has gotten behind the effort to hold up David Barron's judicial nomination. Sort of. Calling Barron, whom Obama has nominated to serve on the U.S. Court of Appeals for the First Circuit, "The Lawyer Behind the Drone Policy," the Times notes that:
The administration has never explained in detail the legal justification for [the] killing [of Anwar Al-Awlaki] and has resisted all requests to make public Mr. Barron’s memos. That didn’t sit well with several Senate Democrats who have been critical of the drone policy and the excessive secrecy surrounding it, and they demanded that the White House release the memos. Senators have a right to see the quality of a nominee’s legal analysis, particularly when he is trying to make a case for a morally questionable activity, before they confirm him to a lifetime post.
The editorial goes on to say that making the memos available to senators is not enough and that the memos need to be released publicly. It doesn't oppose Barron's nomination or suggest that a vote should not happen. It does, however, apparently regard holding it up to force the release of memos as an appropriate tactic---if one that has satisfied the Senate's needs but left the public's unmet. The willingness to play games with Barron's nomination is making for a pretty odd political grouping. As Carrie Severino, writing in National Review, put it approvingly,
Barron’s nomination is especially notable because of the strange-bedfellows coalition opposing it, at least for now. Code Pink, Republican Senator Rand Paul, the ACLU, and Democratic Senators Ron Wyden and Mark Udall have joined together to prevent a confirmation vote. Democratic Senators Mark Begich and Mary Landrieu are “unsure” whether they will vote for Mr. Barron’s nomination. The bipartisan opposition is refusing to proceed until they receive memos drafted or approved by Barron during his time at OLC that relate to OLC’s approval of an overseas drone strike against American citizen and terrorist Anwar al-Awlaki.
The trouble for the Times and other liberals who are playing this game is that conservatives have a different set of reasons for opposing Barron. They don't like what they take to be his judicial philosophy: "In short, Barron is a judicial supremacist who wants to use the federal judiciary as a weapon to advance his hard-left political vision," writes Severino. The combined message from the right and the left on Barron, in other words, is that he's a dangerous judicial supremacist liberal who can't be confirmed until the President gives up his memos allowing the executive to kill people without judicial review. Got that? We all yearn for more bipartisanship, but when it rears its head, it's not always a pretty sight. Senators use nominations to extort concessions from the President. That's part of life, and it's part of a separation of powers system in which questions like the secrecy of OLC memos are ultimately governed not according to principle but by the push and pull of power politics. There is, however, one big, if subtle, thing wrong with the Times's editorial, and it's the headline. It is quite misleading to describe Barron as the "lawyer behind the drone policy." The drone policy---or policies, more precisely---came from the White House, from the CIA, and from the Pentagon in a complex interagency stew ultimately overseen, and pretty directly, by a man named Barack Obama. OLC's job in that process is to field questions, when posed by others, about whether proposed executive activity would be lawful. The memos Barron wrote---at least to the extent we can judge them from summaries of them in the press and in the administration's white paper---are not permissive with respect to targeted killing. As I explained in detail in this congressional testimony, they are actually quite narrow. One can argue about whether they are too narrow or whether they are appropriately cautious, but it's actually difficult to imagine the administration's having adopted a more limiting set of legal rules than it did.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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