Transparency Needed from White House on Barron Nomination

Prepared Floor Statement of Senator Chuck Grassley
Ranking Member, Senate Judiciary Committee
On the Nomination of
David Jeremiah Barron, to be United States Circuit Judge for the
United States Court of Appeals for the First Circuit
 

Mr. President,
I come to the floor to speak today on the nomination of Harvard Law School Professor David Barron to a seat on the First Circuit.  

This nomination is exceptionally controversial and was voted out of our Committee on a 10 to 8 vote.  Even a cursory look at Professor Barron’s record reveals views on the Constitution and federalism that are well outside the mainstream.  But let’s put those views aside for the moment.  

Today, I’d like to discuss Professor Barron’s service as Acting Assistant Attorney General for the Office of Legal Counsel in 2009 and 2010.  

According to multiple media sources, while heading up the Office of Legal Counsel, Professor Barron was instrumental in formulating the legal arguments that this administration used to justify the targeted killing of American citizens by drone strike.  

According to press reports, Professor Barron wrote at least two legal opinions laying out those arguments.

And we know that the Department of Justice relied on the legal arguments Professor Barron formulated to justify the targeted killing of an American citizen in a tribal region of Yemen in September 2011.  

In a May 2013 letter to the Chairman of our Judiciary Committee, the Attorney General wrote that “since 2009, the United States, in the conduct of U.S. counterterrorism operations against Al-Qaeda and its associated forces outside of areas of active hostilities, has specifically targeted and killed one U.S. citizen.”

According to press reports, that individual was the first American citizen placed on the CIA’s Disposition Matrix, better known as the “Kill List.”

However, the Attorney General conceded that three additional Americans located outside the United States have been killed by drone strikes since 2011.  According to the Attorney General’s letter, these Americans were killed even though they “were not specifically targeted by the United States” as part of a counterterrorism operation.

But today I’m not debating Professor Barron’s legal arguments related to the drone strikes.  

The fact of the matter is that senators aren’t in a position to make an informed judgment about the nominee because of the way this administration has handled the issue.  

So, I want to address our constitutional duty with respect to this nomination.  Article 2, Section 2, instructs us to give advice and consent on the President’s judicial nominees.  

That’s not a procedural technicality.  It’s a constitutional imperative.  These are lifetime appointments.  And the men and women we confirm to the federal bench play a vital role in the life of our Republic.     

It’s my view that this body cannot, as things stand today, fully and appropriately discharge its constitutional duty to advise and consent with respect to this nominee.  

Let me briefly address some recent developments in the courts that lead me to that conclusion.  

On April 21st of this year, the Second Circuit issued an opinion in a Freedom of Information Act Lawsuit brought by two New York Times Reporters and the American Civil Liberties Union against the Department of Justice, the Department of Defense, and the CIA.  

That lawsuit began in December 2011, after the administration denied a Freedom of Information Act request from the New York Times for documents on the administration’s targeted killing of American citizens abroad.  

Specifically, the Times requested “a copy of all Office of Legal Counsel memorandums analyzing the circumstances under which it would be lawful for United States armed forces or intelligence community assets to target for killing a United States citizen who is deemed to be a terrorist.”  

The administration refused to provide anything in response to that request.  

In fact, initially, the administration wouldn’t even acknowledge that any responsive documents even existed.  But, as the litigation developed, the Department of Justice identified a single document but claimed that it was exempt from disclosure.  

That document is the so-called “OLC-DOD Memo.”    

Essentially, according to the Second Circuit, that’s Professor Barron’s memo providing the legal justification for targeted killing of Americans abroad with drones.   

Basically, the court reasoned that because the administration had leaked and then officially released the so-called Department of Justice “White Paper” on the drone program, they waived any basis for withholding the Barron Drone Memo under the Freedom of Information Act.

Therefore, the Second Circuit ordered the administration to produce a redacted copy of this Barron Drone Memo to the New York Times.

Mr. President, the Second Circuit’s opinion confirms that Professor Barron wrote this Drone Memo.  However, according to press reports going as far back as September 2010, Professor Barron has written at least one other drone memo on the targeting killing of Americans while he was at the Office of Legal Counsel.  

That second memo wasn’t addressed by the Second Circuit’s opinion and hasn’t been disclosed publicly.  

We also don’t know whether Professor Barron wrote or was involved in producing other materials related to the drone program that have yet to be provided to the full Senate.  

For example, the Second Circuit has identified two additional memos from the Office of Legal Counsel that it ruled were not subject to disclosure under the Freedom of Information Act.

Moreover, according to some media reports, there are quite a few additional memos on the drone program.  In fact, the Second Circuit opinion repeats the ACLU’s contention that there may be as many as eleven total memos related to the drone program.

This fact didn’t escape the Second Circuit.  In sending the case back to the district court for further litigation, the Circuit left open the possibility that there might be other documents subject to disclosure down the road.  

The court said after giving the government another chance to submit additional reasons for withholding the documents, “the District Court may, as appropriate, order the release of any documents that are not properly withheld.”

So, to be clear, my colleagues should be on notice that more of these documents very well may be made public down the road.  In my view, that is all the more reason for the full Senate to receive all materials on the drone program from the Office of Legal Counsel written by, or related to, Professor Barron, now before members decide and are held accountable for their vote.

Mr. President, it’s impossible to overstate the importance of these materials to our consideration of Professor Barron’s nomination.  

The memos and whatever other materials Professor Barron drafted as the acting head of the Office of Legal Counsel provide the legal framework for the administration’s policies related to drone strikes.

We know this because the administration itself has said so.  

In testimony before the Senate Select Committee on Intelligence, CIA Director Brennan testified that advice from the Office of Legal Counsel on the drone program “establishes the legal boundaries within which we can operate.”  

So let me be clear.  The Senate cannot properly discharge its duty to advise and consent on this nomination without having a full picture of this nominee’s legal philosophy.  

How can the Senate predict what kind of a judge he will be if we don’t know what kind of a lawyer he has been?  

The Senate simply cannot evaluate whether this nominee is fit for lifetime appointment to one of the nation’s most important courts without complete access to his writings.  It’s even more important now that we know that some of those writings concern perhaps the most controversial constitutional issue that the Office of Legal Counsel has addressed in recent years.

Time and again, this President and this Attorney General have promised transparency.  

They’ve made these promises to us.  

They’ve made promises to the American People.   

And time and again they haven’t delivered on those promises.  

In that letter from the Department of Justice to Chairman Leahy that I mentioned a few minutes ago, the Attorney General claimed that this administration “has provided an unprecedented level of transparency into how sensitive counterterrorism operations are conducted.”
 
The Attorney General also wrote that the administration was taking all steps to ensure that congressional committees “are fully informed of the legal basis” for targeted killings of American citizens.  

Well, Mr. President, those assertions aren’t accurate when it comes to this nominee’s track record at the Department of Justice.  If press reports are accurate, this administration hasn’t made all the relevant materials available to all of the members of this body yet.    

And I’m not the first member of this body to point this out.  I give several of my Democrat colleagues credit for publicly drawing attention to the administration’s shortcomings in this respect.  

I agree with them that this nomination cannot go forward unless this body – every member of this body – is given access to any and all secret legal opinions this nominee wrote on this critical issue.  

Every legal opinion this nominee wrote related to this issue.  

I wholeheartedly concur in their sentiment.

Again, I think all senators should bear in mind that these documents may very well become public in the future.

Mr. President, are senators who are up for reelection in a few short months ready to vote on this nominee without knowing the full extent of his writings on a topic as serious as the killing of an American citizen by a drone?

Are those senators ready to go home to face their constituents and explain that they cast a vote on that nominee without knowing all the facts?

On Tuesday, the administration announced that it will provide the Senate access to the Barron Drone Memo it was ordered to make public by the Second Circuit.  

Is this what the most transparent administration in history looks like?  Disclosing a memo that a court has already ordered it to disclose?  

And keep in mind that the administration agreed to the disclosure only after the Second Circuit’s order and a threat from the American Civil Liberties Union.  

This is transparency?

In fact, I’m having a bit of a flashback to a statement I made before this body last week about another judicial nominee.  That nominee led the administration’s effort to stonewall congressional oversight into the murder of four Americans at our diplomatic mission in Benghazi.  

That nominee refused to comply with congressional subpoenas and assisted the administration’s unlawful withholding of documents from Congress.  

The Benghazi documents that should’ve been turned over years ago weren’t released until a judge forced the administration to turn them over by issuing a court order in a Freedom of Information Act lawsuit.  

So, just like the memos I’ve been talking about today I’m starting to see a pattern here.  And I’m starting to understand what this administration means by the word “transparency.”  

It means “show me a court order first.”  

Incidentally, I’ve been for more transparency at the Office of Legal Counsel for years, and even more so since January, when President Obama threatened to aggressively use executive orders to circumvent Congress.  It’s the job of the Office of Legal Counsel to ensure that executive orders are constitutional.  

On January 31, I wrote the Attorney General to ask him to disclose the Office of Legal Counsel’s work related to executive orders issued by the president.  I still haven’t received a response.     

I’ll also note that Professor Barron himself has gone on the record publicly and urged increased transparency at his former workplace, the Office of Legal Counsel.  
In fact, the nominee said: “OLC should follow a presumption in favor of timely publication of its written legal opinions.  Such disclosure helps to ensure executive branch adherence to the rule of law and guard against excessive claims of executive authority.”  

He added that “transparency also promotes confidence in the lawfulness of government action.”  

That’s an admirable standard.  I’d call it “The Barron Standard.”  

And I hope the administration follows The Barron Standard with respect to informing the full Senate about this nominee’s work at the Office of Legal Counsel.   

Mr. President, the administration’s offer to disclose the memo it was already ordered to make public isn’t good enough.  That is already their legal obligation.  

This administration must turn over not only the memo addressed by the Second Circuit, but every legal opinion from the Office of Legal Counsel written by, or related to, Professor Barron on this issue.

Given the lack of clarity thus far, I am calling on the White House today to provide every senator with access to all Barron materials related to the administration’s drone program.

I’m also calling on the White House to comply with the Second Circuit’s order and release to the public a redacted copy of the Barron Drone Memo it addressed in its opinion.  

That is the administration’s legal obligation.  

Our obligation, as senators, is to ensure that our constituents have full access to information that a federal court has ordered to be made public, before we vote on this nomination.  Without full disclosure, to the full Senate, of all materials on the nominee’s involvement in the legal case for the administration’s drone program, this nomination cannot proceed.  

I yield the floor and suggest the absence of a quorum.