Finally, after intense negotiation between the Obama administration and senators including drone-strike stalwart Rand Paul, the government released the much discussed memo justifying the killing of Anwar al-Awlaki, which was written by David Barron when he was the acting head of the Office of Legal Counsel. And the revelation is … nothing, or near enough to it.
The reason isn’t that the memo is benign. It’s that it’s crucially incomplete. The administration redacted the important passages of the memo referring to Awlaki’s due process rights as a U.S. citizen. And it referred to another memo, also by Barron, that dealt with the constitutional issues. That memo is — you guessed it — still secret. As for Barron, once my colleague at Harvard Law School, he’s now my former colleague because the Senate confirmed him to the U.S. Court of Appeals for the First Circuit after the administration agreed to release the memo.
This astounding result can only be described as the administration sticking its tongue out at the Senate, not to mention showing its contempt for those in the public who still care about making public constitutional justifications for extraordinary executive power.
Barron is a highly intelligent and politically skilled lawyer who made his public reputation as a critic of the George W. Bush administration’s overreaching invocations of executive power through a pair of articles co-written with Georgetown Law School scholar Martin Lederman. (Disclosure: I know and like both.) Once in Washington, at the Office of Legal Counsel, the pair collaborated on the development of a legal strategy that preserved much of the Bush administration’s programs and policies under better-reasoned legal justifications.
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The secret memos that justified the Awlaki killing arguably extended beyond the Bush administration’s memos with respect to the due process of law. According to a leaked “white paper” that purports to summarize the still-secret Barron memo, the OLC took the position that Awlaki was entitled to due process of law. But it went on to reason, supposedly, that due process could be satisfied by a secret process within the executive branch – even though the accused would not have the opportunity to be heard by a neutral decision maker. The nature of the internal executive branch procedure remains secret. In practice, as far as we know, the president is judge, jury and executioner.
This is not due process as it has existed since the Magna Carta in 1215. It is a travesty of due process. At a bare minimum, the accused must be able to defend himself and have his case decided by someone who isn’t actively interested in the case as a party to it. Put another way, due process demands that no one may be a judge in his own case — which the president would be if adjudicating whether to kill an American abroad.
Some senators, including Paul, cared. When Barron was nominated to the Court of Appeals, they called on the administration to release the memos. They wanted to avoid what happened to former OLC chief Jay Bybee, who signed the famous torture memos written by John Yoo. The memos were later made public and also retracted in part by the OLC under the leadership of Jack Goldsmith. But by the time the memos became public, Bybee had been confirmed to the U.S. Court of Appeals for the Ninth Circuit. Bybee has life tenure during good behavior, same as Barron — and no one can impugn his good behavior while on the bench.
It wasn’t certain that enough senators would care enough to demand the drone memos’ release. But once the demand had been made and agreed to by the administration, it certainly seemed logical that the deal would be kept. This was, or appeared to be, a victory for the principle that the law must not be kept secret. Secret government programs are fine when truly necessary for security. But secret legal justifications are fundamentally antidemocratic.
The administration now appears to have reneged on the deal. I hope this interpretation is wrong, and that the administration will still release the other Barron memo. Unfortunately, the redactions in the memo that has been released seem to suggest otherwise.
It is, I suppose, possible that in secret, the senators never actually demanded that the relevant memo become public. If this is so, then the cynicism isn’t just the president’s but the Senate’s, too. So much the worse.
The parts of the memo that have been disclosed reward careful attention, and I expect to teach their contents in my courses, as I teach the torture memos. There is some fancy footwork in them, such as the too-clever-by-half claim that the civilian Central Intelligence Agency may conduct drone strikes without violating the laws of war.
Yet if the due process reasoning is going to remain secret, this will be a serious loss to the rule of law as a democratic institution. And it should be a reminder to senators that they shouldn’t trust administration promises before they vote life tenure to judges.
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books.
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