By Alexander Bolton - 05/05/14 06:00 AM EDT
Sen. Rand Paul has warned Senate Majority Leader Harry Reid (D-Nev.) that he will place a hold on one of President Obama’s appellate court nominees because of his role in crafting the legal basis for Obama’s drone policy.
Paul, the junior Republican senator from Kentucky, has informed Reid he will object to David Barron’s nomination to the 1st Circuit Court of Appeals, unless the Justice Department makes public the memos he authored justifying the killing of an American citizen in Yemen.
Barron, formerly a lawyer in the Justice Department’s Office of Legal Counsel, penned at least one secret legal memo approving the September 2011 drone strike that killed Anwar al-Awlaki, a radical Muslim cleric whom intelligence officials accused of planning terrorist attacks against the United States.
The attack also killed another American citizen, Samir Khan, the creator of an online magazine catering to jihadists.
Paul says the DOJ must show Barron’s memo before he will consider lifting the hold.
“The constitutionality of this policy has been the subject of intense debate in our country since its implementation,” Paul wrote in an April 30 letter obtained by The Hill.
“The disclosure of this document will not only clarify that debate, it will also allow the Senate to gain critical insight into David Barron’s judicial philosophy,” he added.
Paul waged a 13-hour filibuster in March 2013, delaying the nomination of John Brennan to serve as director of the Central Intelligence Agency to protest the Obama administration’s drone policy.
During his filibuster, Paul demanded that Attorney General Eric Holder clarify whether U.S. citizens on American soil could be the targets of drone attacks. Holder ruled out the possibility in a letter dated March 7, 2013.
The ACLU has sided with Paul, who has a handful of Democratic allies.
“No senator should be voting on this nomination until they have an opportunity to read all of the OLC opinions he has written on targeted killing,” said Christopher Anders, senior legislative counsel at the ACLU.
Sen. Ron Wyden (D-Ore.) joined Paul’s filibuster of Brennan’s nomination last year.
“The issue of American security and American freedom really doesn’t get enough discussion here in the United States Senate, and it’s my view that the senator from Kentucky has made a number of important points this day,” Wyden said on the floor of Paul’s late-night talk-a-thon.
Sen. Patrick Leahy (D-Vt.) and Sen. Jeff Merkley (D-Ore.) last year voted against Brennan, who defended the administration’s drone program during his confirmation hearing.
Paul’s objection puts Leahy, the chairman of the Judiciary Committee, in a tricky position. He voted in January to send Barron’s nomination to the floor, but he has also teamed with Sen. Chuck Grassley (Iowa), the ranking Republican on the committee, in pushing the Justice Department to share its legal rationale for drone strikes on American citizens.
A Senate Democratic aide said Leahy had an opportunity to review “all materials relevant to the nomination” before voting "yes." Barron passed out of committee on a 10-8 party-line vote.
Leahy said in prepared remarks at a hearing on drones on April 23, 2013, that he had, for more than a year, sought access to the complete legal justification prepared by the Office of Legal Counsel supporting the targeted killing of Americans.
Leahy said that members of his committee had been provided access to “some OLC documents” and vowed to seek additional information.
“I will continue to advocate for public disclosure of this legal analysis, consistent with the protection of national security,” he said.
The 2nd Circuit Court of Appeals ruled last month that the Justice Department must make public portions of its memos justifying the extra-judicial killing of American citizens with drones.
The decision came in response to a lawsuit filed by The New York Times and reporters Charlie Savage and Scott Shane. While the Times won the legal battle, the DOJ may not turn over the documents until after Barron is confirmed to the 1st Circuit.
A spokeswoman for Grassley said Barron’s nomination should not advance until the Justice Department complies with the 2nd Circuit’s ruling.
“Republicans are concerned about a host of aspects of his record, which is why Senator Grassley opposed in committee. But, you’d think that any member who truly cares about the Obama administration’s drone policy should want to wait until the administration complies with the court order before they are asked to cast a vote,” Beth Levine, Grassley’s aide, wrote in an email.
Public critics of the administration’s drone program know from the Times’s lawsuit that Barron signed a 50-page memo justifying the strike on al-Awlaki but suspect he might have authored and signed several others.
“There truly are very few legal opinions put out by the Justice Department that have been as significant or consequential as these OLC opinions authored by David Barron,” said the ACLU’s Anders.
Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) said in February of last year that her staff was aware of nine OLC memos laying out the legal argument for killing al-Awlaki without a trial but had only seen four of those documents.
Feinstein said in a statement that her panel had made a request “for all nine OLC opinions — and any other relevant documents — in order to fully evaluate the executive branch’s legal reasoning, and to broaden access to the opinions to appropriate members of committee staff.”
Paul announced in his letter that he will object to waiving any rules to speed Barron’s time on floor. Democrats can quash his filibuster with a simple majority vote, but he can drag out consideration of the nomination for several days, time that Reid may not be willing to spare in the schedule.