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Washington —The Senate confirmed David Jeremiah Barron to the 1st U.S. Circuit Court of Appeals on Thursday, but only after Barack Obama's administration agreed to make public a controversial secret memo about the U.S. targeted killing program it has long sought to keep secret.
The administration's decision is a revealing look at how nomination hearings have become an effective new weapon in the fight for more transparency in the government's covert counterterrorism policies.
Forcing Obama’s hand
Though the president nominated the Harvard Law professor in September, several influential senators from both sides of the aisle — including Mark Udall of Colorado and Ron Wyden of Oregon — threatened to block the nomination unless key memos written by Barron while he was acting head of the Office of Legal Counsel in 2009 and 2010 were disclosed.
At the Justice Department branch that advises the president and other executive agencies on some of the most contentious legal questions, Barron had co-authored at least one memo outlining a legal rationale for using military force, without judicial process, to kill Americans abroad who aren't on battlefields. That memo was used as the justification for the September 2011 U.S. drone strike in Yemen that killed U.S. citizen Anwar al-Awlaki, a radical cleric affiliated with Al-Qaeda in the Arabian Peninsula.
For three years now, journalists, media and transparency advocates — including the American Civil Liberties Union and The New York Times — have been in court fighting for the release of that memo and other documents pertaining to the government's policy of targeted killing. Last month a federal appeals court ordered the Justice Department to turn over portions of the so-called Awlaki memo.
But it wasn't until Barron's nomination hung in the balance that the government gave in to some of those demands.
Last week the administration allowed lawmakers, from a secure room in the Senate, to view copies of two memos written by Barron. This week it agreed not to challenge the appeals court ruling and to make the memo public in some form — although officials said they needed time for redactions before the memo would be released.
For Jameel Jaffer, the ACLU deputy legal director who has spent the last three years litigating against the CIA, the Defense Department and the Justice Department in pursuit of documents related to the targeted killing program, the Senate action "has been a boon."
"It forced this issue more quickly than it would have through the courts," he explained. "The administration has every argument at its disposal to delay the process in court."
Jaffer said it was crucial to make the information in the memo available to the American public at a moment when drone strikes had escalated significantly.
"We've had this [legal rationale] in place three years now, and we should have had this debate in the beginning," he said. "At this point, the infrastructure of this program is entrenched. We've had several thousand people killed as a result, many of them civilians."
But Jaffer cautions that the memo — one of an unspecified number — is only one glimpse into the administration's policies. "There's a lot of crucial information about who the government has killed and for what reasons, information about civilian casualties that we're not getting," he said.
Under Obama, the CIA has launched six times the number of drone strikes in Pakistan than it had during the presidency of George W. Bush. In 2009, Obama established and quickly expanded the United States' air war in Yemen. He also presided over the advent of the signature strike, in which groups of men believed to be fighters associated with enemy organizations are targeted, even if their identities aren't always confirmed. Last month after Director of National Intelligence James Clapper expressed reservations, senators dropped a demand that the number of civilian casualties from drone strikes be publicly disclosed.
A year ago, Obama delivered a speech intended to signal a shift toward a more transparent and narrow counterterrorism program, but little has changed beyond a struggling effort to gradually move the drone program from the purview of the CIA to the military.
Despite the president’s promise of greater transparency, the most significant recent disclosures about the drone program have come from instances in which Congress has forced the administration’s hand by holding up confirmation of nominees.
Their letter also included a thinly veiled threat: “The executive branch’s cooperation on this matter will help avoid an unnecessary confrontation that could affect the Senate’s consideration of nominees for national security positions.”
On the eve of Brennan's hearing, the White House directed the Department of Justice to provide members of the Senate and House Intelligence committees with those documents.
"The two times the government has been the most responsive is when they have a nomination threatened, but that's not the way it should be," ACLU legislative counsel Christopher Anders said.
Still, he's heartened that congressional access to those documents can contribute to more oversight of a program that has been shrouded in secrecy.
"What we heard from a number of staffers was that there were senators going in for the first time to read these two memos and a lot of them came out concerned about what they were reading," Anders said. "They want to engage more and push back more about the program. I think that's a good step in Congress reasserting itself in this system of checks and balances."
A narrow vote
Kentucky Republican Sen. Rand Paul, who looked at the documents last week and has been perhaps the most vocal critic of Barron's confirmation, passionately argued that the releases aren't enough.
"It isn't just about seeing the memos. I believe it's about what the memos themselves say," he said during Wednesday's hearing. "I believe the memos, at their very core, disrespect the American Bill of Rights."
Paul warned that “David Barron has written a defense of executions of American citizens not involved in combat. Make no mistake, these memos do not limit drone executions to one man. These memos become historic precedent for killing Americans abroad."
Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., responded Thursday with a passionate defense of the administration’s targeting.
"We're dealing with reality here, not Alice in Wonderland," Leahy said. "The attorney general had confirmed Anwar al-Awlaki was the only American targeted and killed."
Hoping to circumvent what they said was the unfair obstruction of Obama's judicial nominees and executive appointments, Senate Democrats in November changed parliamentary rules so that only a simple majority of senators, rather than a 60-vote supermajority, would be necessary for confirmation.
The final vote on Barron was split primarily along party lines, with 53 supporting the nomination and 45 voting against it, paving the way for Barron's lifetime appointment to a court just one rung below the nation's highest.
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