Soon, once the Obama administration has redacted what it sees fit to redact for national security reasons, we will finally get to see the Department of Justice's legal justification for killing American citizens overseas with drones without the benefit of any sort of trial. All it took was a court order and the possibility that the Senate wouldn't approve an appellate court nominee due to his role in crafting this memo to make it happen. Easy!
David Barron, the nominee for the U.S. Court of Appeals for the 1st Circuit, faced a possible filibuster or hold this week from senators wanting to bring about an end to some of the administration's secret justifications for drone use. Sen. Rand Paul (R-Ky.) warned he would put a hold on the nomination, but Senate Majority Leader Harry Reid (D-Nev.) says he thinks he has the votes now to get Barron his judgeship. We will see today. Paul took to the Senate floor this morning showing he has no interest in supporting Barron. Bring on "StandwithRand 2: Still About the Drones." Actually, no. Though Rand spoke at length this morning, changes to the filibuster rules (which he also criticized during his speech) ensured that we didn't get a repeat of Paul's 2013 attempt to delay voting on John Brennan's nomination as director of the CIA.
Paul nevertheless did speak at length this morning about his concerns that Barron and the Obama Administration's extrajudicial drone strikes challenge years of jurisprudence that places such a strong emphasis on the rights of the accused to have a trial. That Anwar al-Awlaki, an American-born al Qaeda leader, was in all likelihood guilty of plotting harm against his own country, was not the point: "We're talking about not even having the protection of a trial. Are we comfortable killing them based on accusations that no jury has reviewed?" He pointed to the history of American leaders treated with honor for defending the accused, such as John Adams defending the British soldiers accused of the Boston massacre. He called the use of drones to kill targets "sophisticated vigilantism." If you missed his speech (what, you have something better to do than watch C-Span?), his Twitter account excerpted choice quotes.
The American Civil Liberties Union (ACLU) had sued, along with The New York Times, to get access to the drone strike memo. The ACLU is hoping the report will open folks' eyes:
"We hope this report signals a broader shift in the administration's approach to the official secrecy surrounding its targeted killing program," said ACLU Deputy Legal Director Jameel Jaffer, who argued the FOIA lawsuit before the Second Circuit Court of Appeals.
"The release of this memo will allow the public to better understand the scope of the authority that the government is claiming. We will continue to argue in court for the public release of the other targeted killing memos and related documents."
Given it took both of the other branches of the government to force the administration to accept some more transparency in revealing its guidelines for assassinating its own citizens, I am not expecting a broader shift in the administration's approach to secrecy. And even so, if Reid is correct, the Senate stands poised to approve Barron anyway. Though it is a problem that the memo was kept classified, the justifications were pretty poorly kept secrets. We actually know why the administration thinks it can execute citizens overseas (it did not believe they would be able to get to al-Awlaki to arrest him and put him on trial). The concealing of the memo doesn't resolve the problem that our president believes he has the power to do this. That's what really makes Paul's comments this morning so important. Revealing the actual memo is only the first step towards trying to put an end to this behavior.
UPDATE: The Senate vote to move Barron along to a final roll call vote today passed 52-43.