Senators decide federal bench has room for both Barron and Bybee, authors of controversial memos

Last week, David Barron won Senate confirmation to a lifetime appointment as a judge for the First Circuit Court of Appeals. The 53 senators who voted along party lines to confirm Barron ratified his controversial work on behalf of the Obama administration while side-stepping their own outrage that Democrats have expressed toward Bush administration practices involving non-citizen detainees.

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Barron, in his prior role in the Justice Department's Office of Legal Counsel, authored an unsigned white paper supporting the Obama administration's use of airborne drone strikes on targets that have included at least four U.S. citizens, including a father and son with al Qaeda affiliations. Anwar Al-Awlaki, an Islamic militant born in New Mexico, died in a 2011 drone strike in Yemen, outside of the war zones of Iraq and Afghanistan. His 16-year-old son, also a U.S. citizen, met a similar fate two weeks later.

None of this prevented Senate Democrats from approving Barron's nomination, despite strong objections expressed toward Judge Jay Bybee of the Ninth Circuit Court of Appeals. Before his confirmation, Bybee served as assistant attorney general and head of the Office of Legal Counsel in the George W. Bush administration.

As lawyer to the executive branch, Bybee signed three memoranda in 2002 drafted by Deputy Assistant Attorney John Yoo, evaluating the use of enhanced interrogation techniques against non-citizen terrorists in response to the attacks of Sept. 11, 2011. The enhanced interrogation techniques analyzed in the Bybee memos included waterboarding, sleep deprivation, "insult" slapping, cramped confinement with an insect, and wall standing.

The Senate confirmed Bybee in March 2003 by a 74-19 vote, but a subsequent leak of the Bybee memos and their later declassification prompted public outrage from some of those who would later support Barron. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) remarked that Bybee "never would have been confirmed" if he and the Bush administration had "told the truth." Leahy demanded Bybee's resignation and other high-profile Democrats called for his impeachment. House Judiciary Committee Chairman John Conyers (D-Mich.) and Rep. Jerry Nadler (D-N.Y.) asked Attorney General Eric Holder to investigate possible criminal violations.

Republicans on Capitol Hill have remarked that Senate Democrats' support of Barron's nomination contrasts with their vocal opposition to Bybee's continued service on the bench. Given the vigorous debates over both enhanced interrogation and drone-based targeted killings, they question how those who oppose enhanced interrogation of non-citizens could nonetheless support targeted killing of U.S. citizens without judicial process, even if both circumstances involve subjects with well-documented connections to al Qaeda.

Both issues have inspired a vigorous national debate. First, Americans have differed stridently over the legality and morality of waterboarding terrorists. Although the Bybee memo concluded that waterboarding does not cause severe pain, serious physical injury, or lasting impairment of bodily function, critics objected that his analysis construed far too narrowly the statutory definition of "torture." Second, Americans have similarly differed over whether our government should use drone strikes without judicial process to kill U.S. citizens affiliated with terrorist groups.

Some have vocally opposed both of these approaches. The American Civil Liberties Union (ACLU) responded to Barron's nomination by urging senators to read his memos before casting their votes. The ACLU cautioned that "the Barron nomination has some echoes of the nomination of Jay Bybee," and other critics expressed more pointed objections. Based on this view, neither Bybee nor Barron properly belong on the federal bench.

Others oppose targeted killings but not enhanced interrogation. Without objecting to harsh treatment of non-citizen terrorists, they conclude that the Constitution prohibits killing U.S. citizens without judicial process. While non-citizens do not have the same constitutional rights as citizens, the Fifth Amendment provides that no citizen may be deprived of life without due process of law. On this view, Bybee's appointment was unobjectionable but Barron's nomination should not have proceeded.

Then there is the view of those who would oppose waterboarding non-citizens but have no objection to the extrajudicial killing of U.S. citizens. Exemplifying this perspective, in addition to Leahy, is Sen. Edward Markey (D-Mass.), who sponsored a bill entitled the Torture Outsourcing Prevention Act. Despite Markey's concern that "torture is morally repugnant whether we do it or we ask another country to do it," he argued that senators should overlook Barron's legal support of drone-based targeted killings because Barron was "simply doing his job by providing his legal analysis of the policy."

The same could be said of Bybee who, like Barron, was simply doing his job by providing his legal analysis of another policy. Even so, the Senate Democrats who approved Barron's nomination had earlier called for Bybee's resignation after the Bybee memos became public.

In the politically charged atmosphere of Capitol Hill, a majority of senators holds that the extrajudicial killing of U.S. citizens is permissible while enhanced interrogation of non-citizens is reprehensible. But, looking past the opposing rhetoric of both Democrats and Republicans, the reality is that the leading authors of two highly controversial policies enjoy life tenure on the federal bench.

Trotter is an attorney in Washington and a senior fellow at the Independent Women's Forum. Her views are her own.