Before David Barron was confirmed this year to a lifetime seat on the United States Court of Appeals for the First Circuit, his critics objected that the cover he gave President Obama to carry out extrajudicial killings of American citizens ought to disqualify him from the bench. "I rise today to oppose the nomination of anyone who would argue that the president has the power to kill an American citizen not involved in combat and without a trial," Senator Rand Paul declared in remarks opposing the nomination. "I rise to say that there is no legal precedent for killing citizens not involved in combat and that any nominee who rubber stamps and grants such power to a president is not worthy of being one step away from the Supreme Court."
Barron, who wrote his controversial memo while at the Office of Legal Counsel, was confirmed anyway, before the public was permitted to see the legal reasoning he used to weaken the Fifth Amendment as well as an executive order banning assassinations and a statute prohibiting the murder of American citizens abroad. Now that analysis is available for review.
One memo was released with significant redactions on June 23. Charlie Savage of The New York Times, who has fought alongside the ACLU for the release of all such memos, set forth what it revealed about Team Obama's legal reasoning. Then on Friday, the administration released an even earlier Office of Legal Counsel memo. Also heavily redacted, it nevertheless gives us insight into Barron's initial attitude toward one of the most fraught questions in American constitutional law. The memo, co-written with Marty Lederman, is here. And it coveys disturbing information about an Obama-appointed federal judge.
Though the targeted killing of an American citizen implicates the Fifth Amendment, an executive order that forbids assassinations, and a federal statute that prohibits murdering American citizens abroad, the initial memo giving Obama legal cover to carry out extrajudicial killings spanned just seven pages.
As that length suggests, the memo, which could have resulted in a human's death at any moment, was woefully incomplete as a legal analysis. The Times reported as much before its reporters had even seen the document based on interviews. "As months passed, Mr. Barron and Mr. Lederman grew uneasy," the newspaper reported. "They told colleagues there were issues they had not adequately addressed, particularly after reading a legal blog that focused on a statute that bars Americans from killing other Americans overseas. In light of the gravity of the question and with more time, they began drafting a second, more comprehensive memo, expanding and refining their legal analysis and, in an unusual step, researching and citing dense thickets of intelligence reports supporting the premise that Mr. Awlaki was plotting attacks."
Note what this means. For months, the Obama administration was poised to kill an American at any moment, based on legal advice even its authors believed was inadequate and incomplete. And those authors, Barron and Lederman, signed off on an American's death before delving into intelligence reports and doing other due diligence they completed for the later memo, which would be more than four times as long as their earlier effort.
That all reflects rather poorly on Barron, Lederman, and Obama's Office of Legal Counsel, but it doesn't even get to what may be the most alarming part of that earlier memo. "[Redacted] has asked for your views on the legality of the Central Intelligence Agency's proposed use of lethal force in Yemen against Shaykh Anwar Aulaqi, a U.S. citizen who the CIA assesses is a senior leader of Al Qaida in the Arabian Peninsula," it begins. Additional redactions follow. The memo then continues: "Under the conditions and predicates as represented by the CIA and in the materials provided to us by the Intelligence Community, we believe that a decision maker, on the basis of such information, could reasonably conclude that the use of lethal force agains Aulaqi would not violate the Assassination Ban in Executive Order 12333 or any applicable constitutional limitations."
What this appears to say is that, as far as the Obama administration and David Barron are concerned, the CIA, a civilian intelligence organization with a long record of getting analysis wrong, can carry out the extrajudicial assassination of an American citizen whose guilt has been established solely through CIA intelligence. That's quite a contrast to the Constitution's instructions setting forth what to do if an American citizen is "levying war" against the United States government:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
It's hard to believe that the Framers put forth these exacting standards for convicting someone levying war against America if they also believed that a person so accused could also be put on an enemies list and killed without charges or trial. Note too that even the official narrative of the Awlaki killing suggests the evidence against him was provided by a terrorist already in CIA custody. Are we comfortable giving the executive branch the power to kill citizens in secret so long as the citizen in question is first denounced by a terrorist with every incentive to tell the federal government whatever it wants to hear?
The fact that Barron and Lederman returned to the subject of their first memo, remedying some but by no means all of its shortcomings, speaks more highly of them than if they'd never looked back at all. But as uneasy as I already felt with a man who gave legal cover for extrajudicial assassinations serving a lifetime appointment as an appeals-court judge, I feel even worse knowing he also first signed what amounted to a death sentence and a hugely consequential precedent so heedlessly. Why he deserves our trust as a steward of the Constitution is unclear.