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Senate Confirms Drone-Memo Author David Barron To Appeals Court

Senate Confirms Drone-Memo Author David Barron To Appeals Court

By Michael A. Memoli, Tribune Washington Bureau

WASHINGTON — Former Justice Department lawyer David Barron won confirmation to the 1st U.S. Circuit Court of Appeals on Thursday, despite concerns raised about his role in justifying the killing of American citizens abroad suspected of terrorist activities.

The Senate voted, 53-45, to give final approval to Barron. A day earlier, the chamber voted to end debate on his nomination despite a last-ditch effort by Sen. Rand Paul, R-Ky., to block him.

Barron wrote at least one memo that provided the legal justification for the targeted killing of Anwar al-Awlaki, a U.S. citizen who was slain by a drone strike in Yemen in 2011. Senators from both parties had pressed for access to the document as a precondition for even considering Barron’s confirmation.

On the eve of Wednesday’s vote, the Justice Department announced that it would release the long-sought secret document. Previously the Obama administration had offered only to show un-redacted copies privately to senators.

The 1st Circuit Court of Appeals, based on Boston, hears cases from the New England area. Barron’s confirmation continues a clearing of a backlog in pending judicial nominations after Democrats lowered the voting threshold to advance the president’s choices.

According to the Senate Judiciary Committee, 32 judicial nominees had been confirmed as of May 8, more than twice as many as had been confirmed the previous year up to that point. But 74 vacancies remained as of that date, compared with 50 unfilled judicial posts at the same point in George W. Bush’s administration.

AFP Photo/Saul Loeb

Secret Justice Department Memo Justifies Assassination of Anwar al-Awlaki

A secret memo, written by Justice Department lawyers David Barron and Martin Lederman, provides a legal rationale for the assassination of Al-Qaeda propagandist Anwar al-Awlaki, according to the New York Times.

Al-Awlaki was killed in Yemen last month in an attack carried out by an unmanned CIA drone. His death was controversial, since unlike other suspected terrorists killed in Afghanistan, Pakistan, and Yemen, al-Awlaki was an American citizen born in New Mexico. Republican presidential candidate Ron Paul seemed particularly upset that the government was, in his words, “assassinating American citizens without charges.”

In fact, there are many laws and regulations that suggest al-Awlaki’s assassination would be illegal if he were not considered an Al-Qaeda operative fighting a war against the United States. These include Executive Order 12333 (which bans assassinations), 18 U.S.C. 1119 (which prohibits Americans from killing other Americans abroad), international rules of war, and the Fourth and Fifth Amendments to the Constitution. According to the Times, the memo considers all of these legal constraints, and finds that the assassination of al-Awlaki does not violate any of them.

That [executive] order, the lawyers found, blocked unlawful killings of political leaders outside of war, but not the killing of a lawful target in an armed conflict.

A federal statute that prohibits Americans from murdering other Americans abroad, the lawyers wrote, did not apply either, because it is not “murder” to kill a wartime enemy in compliance with the laws of war.

But that raised another pressing question: would it comply with the laws of war if the drone operator who fired the missile was a Central Intelligence Agency official, who, unlike a soldier, wore no uniform? The memorandum concluded that such a case would not be a war crime, although the operator might be in theoretical jeopardy of being prosecuted in a Yemeni court for violating Yemen’s domestic laws against murder, a highly unlikely possibility.

Then there was the Bill of Rights: the Fourth Amendment’s guarantee that a “person” cannot be seized by the government unreasonably, and the Fifth Amendment’s guarantee that the government may not deprive a person of life “without due process of law.”

The memo concluded that what was reasonable, and the process that was due, was different for Mr. Awlaki than for an ordinary criminal.