Senator Rand Paul (R-Ky.), with the backing of the American Civil Liberties Union, has notified Senate Majority Leader Harry Reid (Nev.) that he plans to hold the nomination of David Barron to the 1st U.S. Circuit Court of Appeals because of the former Justice Department official’s involvement in U.S. drone policy.
President Barack Obama nominated Barron for the position last year. And Paul’s objection to the appointment comes as no surprise, given the Senator’s history of rallying against U.S. drone strikes — especially those which have resulted in the deaths of American citizens abroad.
While working as a lawyer in the DOJ’s Office of Legal Counsel (OLC), Barron wrote at least one secret memo justifying the September 2011 attack that killed two American citizens, Anwar al-Awlaki and Samir Khan, who were accused to working with Islamic terrorists.
Paul said that he will continue to block Barron’s nomination until the DOJ releases memos related to the drone strikes that were written by the nominee.
In a letter obtained by The Hill, Paul wrote, “The constitutionality of this policy has been the subject of intense debate in our country since its implementation.
“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.
With the ACLU on his side, Paul may muster support from Senate Democrats, giving him the leverage to block the nomination even after rule changes in the Senate that render useless the filibuster tactic he used to delay John Brennen’s nomination to head the CIA in March 2013.
Senator Ron Wyden, an Oregon Democrat who has backed Paul’s anti-drone rhetoric, joined the Kentucky Republican at the time, saying that “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.”
Democratic Senators Patrick Leahy of Vermont and Jeff Merkley of Oregon ended up voting against the Brennan nomination. Furthermore, Leahy has used his position on the Judiciary Committee to press the DOJ to release more information about its drone strike justifications.
Even Senator Dianne Feinstein (D-Calif.) would appear to be in Paul’s corner on the issue of the Barron nomination, having last February 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’s objection to the appellate nomination puts power brokers on both sides of the aisles in a tricky position. Republican hawks who downplay the drone angle are at risk of appearing to support a liberal appointment to a key court. At the same time, Democrats who fight for the liberal judgeship may lose support of constituents on the left who oppose Obama’s drone policy.
“There is no other president in modern American history who has ordered the killing of an American citizen away from a battlefield without a judicial order, and by extension, there is no other federal government lawyer in modern American history who authorized the killing of an American citizen away from a battlefield,” said Christopher Anders, an ACLU attorney, in a letter sent to the Senate.