The Obama administration claims that it has the legal right to kill American citizens, without trial, under certain highly unusual circumstances. And the president has done so: Obama authorized the 2011 CIA drone strike that killed Anwar al-Awlaki, an American citizen who had become a top Al Qaeda leader. Awlaki posed an urgent threat to the United States, and the administration had legitimate reasons to resort to such extreme measures. Still, the killing represented a dramatic enough departure from centuries of practice that the government should explain why it was lawful. The administration’s legal memos examining the legal underpinnings of the Awlaki case should be released to the public.
That need for a public accounting ought to be obvious, regardless of the author. But some of these memos were written by David Barron, now a Harvard Law School professor, who was recently nominated for a federal judgeship in New England. Barron’s nomination has rekindled the controversy over his so-called drone memos. Several senators, led by Rand Paul of Kentucky, have threatened to block Barron’s confirmation for the seat unless the White House releases the memos. It’s time for the administration to support its own nominee by declassifying the documents.
To some extent, it’s unfair that Paul and other senators are holding Barron’s nomination hostage, since he has no control over whether the White House complies with their demands. It’s also true that, when he authored the memos, Barron was a lawyer offering an opinion, not a policy-maker; while Barron may have provided legal sanction for the strikes, he didn’t order them.
Nonetheless, it’s entirely reasonable for senators to consider the memos as they decide whether to support Barron’s nomination. In approving drone strikes against a US citizen, Barron was offering his own interpretation of the law. While it’s always been clear that the military could kill American citizens fighting for enemy forces on the battlefield, the memos expanded the scope of that authority. Seeing the documents themselves would clearly shed light on how he handled an important question of legal interpretation — a key quality in a judge.
In his defense, Barron’s supporters have suggested that Paul and other senators are acting in bad faith, since the White House recently allowed them to read the full memos in a classified setting. But sharing the memos in private is not a subsitute for public disclosure, and the administration has offered no good reason why the files should remain secret. Any sensitive intelligence information the documents may contain is now at least three years old. Keeping Barron’s memos secret only creates the impression that the White House lacks confidence in them — and in Barron.