Editorial: Don’t hold David Barron’s judicial nomination hostage

An unlikely coalition of liberal Democrats and libertarian Republicans has raised legitimate questions about the Obama administration’s view that U.S. citizens abroad can be targeted for killing without trial. But now those concerns are threatening to derail the appointment of David J. Barron, President Obama’s choice to serve as a judge on the U.S. 1st Circuit Court of Appeals in Boston. Barron, a Harvard law professor who has received strong support from legal luminaries on both the left and the right, has become ensnared in a dispute over the release of internal Justice Department opinions justifying the targeted killing of Anwar Awlaki. The U.S.-born Al Qaeda figure was assassinated in a drone attack in Yemen in 2011.

Barron is believed to have written at least one memo on that subject as acting assistant attorney general in the Office of Legal Counsel early in the Obama administration. This week, Sen. Rand Paul (R-Ky.) said he would continue to oppose Barron’s nomination until “the American people are able to participate in one of the most consequential debates in our history.” Sen. Mark Udall (D-Colo.) said he wouldn’t support the nomination until the White House agrees not to appeal a court decision requiring it to make public the Office of Legal Counsel’s rationale for targeting Awlaki.

This page long has called for the administration to release to the public any memos setting forth the legal arguments for targeted killings of U.S. citizens. But that isn’t something over which Barron exercises any control, and it’s not a justification for holding his nomination hostage. An entirely separate (and legitimate) question is what his legal advice about targeted killings says about his legal scholarship and his qualifications to be a judge. The Senate can answer that without full public disclosure of the memo.

Much of that legal rationale already has come to light in speeches by administration officials and the release by the Justice Department of a 16-page “white paper” apparently drawn from the memo written by Barron. That document argues that it is legal to kill a U.S. citizen abroad if he is a “senior operational leader of Al Qaeda or an associated force” who can’t easily be captured and who poses “an imminent threat of violent attack” against the U.S. (That sounds restrictive, but questions persist about what the administration means by “imminent.”)

If senators want to read Barron’s actual legal analysis, the administration has said they may peruse his writings privately before voting on the nomination. Instead of blocking Barron’s nomination, they should take the administration up on its offer and move to a vote.