WASHINGTON A former Justice Department official who helped craft the Obama administration’s legal rationale for using drones to kill suspected American terrorists abroad won preliminary Senate approval Wednesday to become a federal appeals court judge.
The largely party-line 52-43 vote cleared the way for a final confirmation vote Thursday for David Barron, a Harvard Law School professor and husband of Democratic gubernatorial candidate Juliette Kayyem. Obama nominated him last September to join the 1st U.S. Circuit Court of Appeals, based in Boston.
Many Republicans considered Barron too liberal. But the fight over his nomination centered on his authorship of secret memos providing the constitutional basis for the U.S. targeting of Americans with drones early in the Obama administration.
U.S. officials have acknowledged that four Americans have been killed with drones overseas, though they say only one was targeted purposely.
Also angering lawmakers was the White House’s refusal to release Barron’s documents. Members of both parties said the public was entitled to see the government’s legal reasoning for the use of deadly force against its own citizens.
In a crucial turnabout, the administration said Tuesday it no longer would fight a federal appeals court order to release a censored version of one Barron memo.
The actual release of that document will take time while the administration and the courts work out details of what will be blacked out. Still, the decision to disclose them won over some Democratic senators who had insisted on transparency.
“I believe that every American has a right to know when their government believes it has the right to kill them,” said Sen. Ron Wyden, D-Ore., who backed Barron and had demanded the release of documents.
Sen. Rand Paul, R-Ky., had threatened to try delaying the nomination over the legal documents. He said Wednesday that Barron should be rejected anyway because no one who supports the killing of Americans without a trial should become a high-level federal judge.
“It’s not about seeing the memos, it’s about what they say and how they disrespect the Bill of Rights,” said Paul, a potential 2016 presidential contender.
Last year, Paul spoke in the Senate for nearly 13 hours against the nomination of John Brennan to CIA director because of Paul’s opposition to the administration’s drone program.
Democratic Sens. Mary Landrieu of Louisiana, who faces a tough re-election race this year, and Joe Manchin of West Virginia were the only senators to cross party lines in Wednesday’s vote.
A U.S. drone strike in Yemen in 2011 killed Anwar al-Awlaki, an American who administration officials say became an al-Qaida leader.
Attorney General Eric Holder has said that the government has the right to kill Americans overseas who pose an imminent threat to the U.S. and whose capture alive was not feasible.
Paul noted that Obama said during his 2008 presidential campaign that he opposed Bush administration claims that presidents have the power to detain American citizens on charges of being enemy combatants.
“Now we are condoning killing Americans without a trial,” said Paul. “Where, oh where, has candidate Obama gone?”
Barron, 46, was acting head of the Justice Department’s Office of Legal Counsel in 2009 and 2010. He also served in that agency under President Bill Clinton.
It is unclear how many documents Barron wrote justifying the targeting of Americans. Several lawmakers said they still want the administration to release more of them.
“Our military and intelligence agencies often need to conduct secret operations,” Wyden said. “But they never should be placed in the position of relying on secret law.”
Under pressure as the Barron vote approached, the White House this month let senators see one of those documents. Wyden said that was the same memo that the administration, under court order, will release publicly.
Wednesday’s vote was the latest example of an Obama nomination that would not have survived under Senate rules on filibusters, or procedural delays, that existed until last November.
It used to take 60 votes to end filibusters. The new rules Democrats forced through the Senate in the face of what they say is relentless GOP obstruction require just a simple majority.