[Congressional Record Volume 160, Number 78 (Thursday, May 22, 2014)]
[Senate]
[Pages S3246-S3247]
JUDICIAL NOMINATIONS
Mr. LEAHY. Mr. President, later today we are going to vote on the
confirmation of David Barron, who has been nominated for a vacancy on
the U.S. Court of Appeals for the First Circuit.
Yesterday, we were able to overcome the unjustified Republican
filibuster of this extraordinary nominee. Now, I have had the privilege
of serving longer in this body than any other Senator here. I have
never seen so many filibusters of judicial nominees by any President,
Republican or Democratic. In fact, Republicans filibustered the very
first judge President Obama sent to this body, a judge who was strongly
supported by the Senators from his State, one of whom was the most
senior Republican in this body, the other a moderate Democrat.
Fortunately, enough Senators joined together to overcome that
filibuster.
David Barron is currently a professor at Harvard Law School. He is a
nationally recognized expert in constitutional law and the separation
of powers, administrative law, and federalism. He clerked on the U.S.
Supreme Court for Justice John Paul Stevens. In fact, I recall that
Justice Stevens had so much regard for him that he attended Mr.
Barron's nomination hearing.
I am in full support of Mr. Barron's nomination. It is almost as if
he was sent to central casting for who should be a court of appeals
judge. I have not seen any judicial nominee with better qualifications
by either a Republican or Democratic President.
Let me respond to some of the criticisms levied against him with
respect to the so-called drone memos as well as allegations that he
would not be an independent judge who adheres to the rule of law. I
reject both of those criticisms.
Over the last few weeks, I have spoken extensively about the issue of
the drone materials and would refer specifically to my statement of May
14 of this year. While Senators may disagree with the administration's
policies regarding the use of drones for lethal counterterrorism
operations--and I have raised concerns about some of those operations--
it is important not to conflate the confirmation of David Barron with
the disclosure of Justice Department memoranda over which he had no
control. He wrote an analysis of the law. Others make the decision of
what they will do.
Yesterday the Justice Department made the right decision by agreeing
to publicly release the redacted version of the legal justification for
the government's potential use of lethal force against U.S. citizens in
counterterrorism operations. I welcome the administration's additional
step toward greater transparency.
Incidentally, these materials have been available to all Senators in
recent weeks. We have had them in the unredacted form in a secure room
here in the Capitol. We did that so that nobody could claim: Well, if
only I knew what was in those memos, I could make up my mind. Every
single Senator has had an opportunity to read them before today's vote.
We have heard some Senators argue that the Justice Department legal
analysis provides the government with a blank check to use lethal force
against Americans in places such as Germany or Canada. Oh my God, talk
about grasping at straws. We are dealing with reality here, not Alice
in Wonderland. Such a claim is simply inaccurate, inconsistent with the
understanding anybody would have reading these materials.
In any event, the Attorney General has confirmed that Anwar al-Awlaki
is the only American who was specifically targeted and killed since
2009. Awlaki was a senior operational leader of all of Al Qaeda in the
Arab Peninsula, located in Yemen. He directed the failed attempt to
blow up an airliner over Detroit on Christmas Day 2009. He was
continuing to plot attacks against the United States when he was
killed, according to the Attorney General.
I am glad a number of Senators share my deep regard for the
constitutional rights of Americans and have spoken about that on the
floor. I hope that after Mr. Barron is confirmed, they will show they
really believe what they have been saying by joining me and 21 other
Senators in cosponsoring the USA FREEDOM Act to help restore America's
constitutional and privacy rights.
Finally, both Mr. Barron and a long list of bipartisan supporters
have forcefully refuted any indication that he views the role of a
judge as that of a policymaker. In a response to a question from
Senator Grassley, Mr. Barron stated the following under oath:
The judicial obligation is to set aside whatever personal
views one may have and to decide the particular case at
issue. A judge must base the decision in any case solely on
the facts and the law, while respectfully considering the
arguments of the litigants. I would take that obligation to
be an inexorable one, just as I felt obliged to set aside any
personal views I may have had in providing legal advice
within the executive branch while serving as the Acting
Assistant Attorney General for the Office of Legal Counsel
and as a career lawyer in that Office. I believe the best way
to ensure one honors that obligation is to immerse oneself
fully in the particular facts of the case and the law
relevant to it and then to apply the law faithfully to those
facts.
Mr. Barron's respect for the rule of law was recently reaffirmed by
Stanford Law Professor Michael McConnell, a well-respected conservative
scholar and former George W. Bush appointee to the Tenth Circuit. In a
letter dated May 7, 2014 in support of Mr. Barron's nomination,
Professor McConnell stated:
I suspect that on particular controversial issues, Barron
and I disagree more often than not. But I have read much of
his academic work, and followed his performance as acting
head of the Office of Legal Counsel. In my opinion, his
writings and opinions have demonstrated not only intelligence
(even where we disagree) but respect for the rule of law. In
the Office of Legal Counsel, whose functions closely resemble
those of a judge, Barron's publicly released opinions
indicated that he was consistently a force for legal
regularity and respect for the constitution and laws of the
United States. That is an important and precious thing.
I ask unanimous consent that Professor McConnell's letter be printed
in the Record at the conclusion of my remarks.
It should be clear from Mr. Barron's testimony and Professor
McConnell's letter that David Barron would faithfully discharge his
duty as a judge in a manner consistent with the Constitution. Senator
Grassley cited yesterday to some statements made by Mr. Barron in his
academic writings, but as Professor McConnell noted in his letter:
It is important to bear in mind that academic legal writing
in constitutional law is often exploratory and provocative.
No one should assume that an academic would take the same
approach toward deciding cases that he does in writing about
cases.
Professor McConnell should know, as he is a prolific academic who was
similarly able to discharge his duty as a judge faithfully and
consistently with the Constitution when he served on the bench. As a
reminder to Republicans who are currently opposing Mr. Barron's
nomination on these grounds, I will note that the Senate unanimously
confirmed Professor McConnell's nomination to the Tenth Circuit by
voice vote in 2002 during the George W. Bush administration.
Mr. Barron is truly an outstanding nominee. So outstanding, in fact,
that Professor McConnell called him ``one of President Obama's two or
three best nominations to the appellate courts.'' I would urge all
Senators to vote to confirm Mr. Barron to the First Circuit.
[[Page S3247]]
There being no objection, the material was ordered to be printed in
the Record, as follows:
Stanford Law School,
May 7, 2014.
Hon. Senator Harry Reid,
Majority Leader, U.S. Senate,
Washington, DC.
Hon. Senator Mitch McConnell,
Republican Leader, U.S. Senate, Washington, DC.
Hon. Senator Patrick J. Leahy,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Hon. Senator Charles Grassley,
Ranking Member, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Re Letter of support for David Barron.
Dear Senators Reid, McConnell, Leahy, and Grassley: I do
not often interject myself into the politics of judicial
confirmations, but in the case of David Barron I make an
exception. In my opinion, David Barron is one of President
Obama's two or three best nominations to the appellate
courts. Based on his scholarship and record of public
service, he has the potential to be one of this nation's
outstanding jurists.
It should be obvious that my assessment does not stem from
political agreement. Barron has described himself as an
advocate of ``progressive constitutionalism''; I believe the
Constitution should be interpreted without a partisan lens,
in terms of the principles reflected in its text and history.
I suspect that on particular controversial issues, Barron and
I disagree more often than not. But I have read much of his
academic work, and followed his performance as acting head of
the Office of Legal Counsel. In my opinion, his writings and
opinions have demonstrated not only intelligence (even where
we disagree) but respect for the rule of law. In the Office
of Legal Counsel, whose functions closely resemble those of a
judge, Barron's publicly released opinions indicated that he
was consistently a force for legal regularity and respect for
the constitution and laws of the United States. That is an
important and precious thing.
Some groups have been described Barron as ``an unabashed
proponent of judicial activism.'' That characterization,
frankly, demonstrates a lack of familiarity with the tone of
much academic debate over constitutional issues. Within that
framework, Barron stands out as an advocate of lawyerly
restraint. It is important to bear in mind that academic
legal writing in constitutional law is often exploratory and
provocative. No one should assume that an academic would take
the same approach toward deciding cases that he does in
writing about cases.
In ordinary times, Barron's legal ability and professional
integrity would suffice to ensure his confirmation. But
unfortunately, in recent decades, and especially during
President George W. Bush's presidency, the opposition party
has taken a more ideological and adversarial posture toward
judicial nominations than the framers of our Constitution
intended. It is understandable that Republicans today would
apply the same adversarial standards to President Obama's
nominations as the Democrats applied to exemplary nominees of
his predecessor. It is my hope that eventually, this process
of mutually assured destruction will pass, for nominees of
both parties. That cannot be expected to occur without mutual
accommodation and confidence that the same standards apply to
nominees from both sides.
Nonetheless, David Barron's nomination should be supported
by Senators of both parties. Perhaps the most significant
constitutional questions of our time arise from the
unilateral use of executive power in both the domestic and
international arenas. David Barron has written powerfully on
this subject, demonstrating a balance between the need for an
energetic executive and the centrality of law and the
legislative branch. He has supported efforts to adopt laws to
enable judicial review of executive actions that might
otherwise escape judicial review because of lack of standing,
and has written powerfully about the need for constitutional
limits on executive excesses.
Some may wonder whether Barron's defense of separation of
powers against executive unilateralism, which he articulated
in the context of the Bush presidency, will survive intact in
a presidency he supports. That is a legitimate question. No
one knows the answer. But speaking as a fellow legal academic
and sometime nominee, I believe that David Barron is a
straight shooter and will not trim the sails of his deep-felt
constitutional convictions on account of the different
direction of political winds. One of this nation's proudest
claims is that the limitations of constitutionalism hold firm
without regard to which party is in power. I believe David
Barron will carry on that tradition.
Beyond generalizations about judicial philosophy, this
nomination has encountered resistance because of Barron's
authorship of opinions in the Office of Legal Counsel
justifying drone attacks by American forces on specified
individuals abroad. The Administration's public legal defense
of these strikes, especially by Attorney General Eric Holder,
have been less than convincing as a legal matter. It is
important for Congress to consider the legality of these
strikes, but I strongly urge that Barron's nomination to the
First Circuit not be collateral damage to this debate.
The pertinent question for this nomination cannot be
whether any Senator agrees or disagrees with the practice of
drone strikes. Barron was not Commander in Chief and he did
not order the strikes. He has not been nominated to a
position with authority over drone strikes, so his view of
those strikes is relevant only to the more general question
of his suitability to be an appellate judge on a court of
broad jurisdiction. His job as acting head of the Office of
Legal Counsel was to advise the President based on the
traditional legal authorities of text, history, and
precedent. He must be evaluated in light of that role.
Of course, neither I nor anyone else can evaluate the legal
arguments made in Barron's OLC opinions until they are
released. But whatever their content, it is difficult to
imagine that they would place Barron outside the mainstream
of professional legal judgment. The question of drone strikes
is novel and much debated, and the authoritative legal
sources are scant. It is far from clear that the Due Process
Clause even applies to military attacks on targets in places
abroad where American law does not run. If it does, it is
equally unclear what kind of process is required when split-
second decisions are made that could save countless innocent
lives. These are discussions that should occur in the proper
place, but a judicial nomination is not the forum for their
resolution.
Ultimately, this confirmation requires a judgment about
judicial character. The most important characteristic of a
great judge is not brainpower or empathy, but the willingness
to apply rules of law dispassionately and unflinchingly to
all cases, regardless of the political context. My sense from
long conversations with David Barron, and review of his
writings and legal opinions, is that he is such a person. I
urge members of the Senate to give their advice and consent.
Best regards,
Michael W. McConnell.
Mr. LEAHY. I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
____________________
[Congressional Record Volume 160, Number 78 (Thursday, May 22, 2014)]
[Senate]
[Pages S3259-S3260]
BARRON NOMINATION
Mr. MARKEY. Madam President, I rise today to speak in favor of the
confirmation of David Barron to the First Circuit Court of Appeals.
As a Harvard Law professor, he has broad bipartisan support from
those who know him best--his colleagues. Larry Tribe and Charles
Fried--two professors at Harvard who could not be further apart
politically--both agree--and this is the joint quote--``Barron is a
brilliant lawyer who will make an excellent judge. What is clear to us
is that Barron will decide cases based solely on the relevant sources
of legal authority, including binding precedent, and that his political
views would in no way distort his legal judgment.''
This is the kind of unequivocal support we want for a judicial
nominee, and David Barron is just the kind of judge we should confirm.
I stand alongside those of my colleagues who believe transparency is
paramount and that we need a public debate on drone policy. Indeed, I
support a robust debate on our entire drone policy, not simply the use
of a drone to kill an American citizen who was plotting the
annihilation of his fellow Americans.
Importantly, the White House just announced that it will release to
the general public the key memo Professor Barron wrote, so all
Americans will be able to take part in this debate.
But let us be clear: David Barron is not responsible for the
administration's delay in releasing the memos he
[[Page S3260]]
and others in the Office of Legal Counsel were directed to produce. He
is certainly not responsible for the administration's drone policy or
the decision to authorize an attack. He is a lawyer who was asked to do
legal analysis for his client, the President of the United States.
Entangling David Barron's nomination with the policy of drone
deployment is unfair to him and unfair to the people of Massachusetts,
Maine, New Hampshire, Rhode Island, and Puerto Rico who need the
vacancy on the First Circuit filled by someone as qualified as David
Barron.
I believe David Barron will be an excellent judge, and that is why he
has my support.
____________________
[Congressional Record Volume 160, Number 78 (Thursday, May 22, 2014)]
[Senate]
[Page S3262]
BARRON NOMINATION
Mr. WHITEHOUSE. There has been considerable discussion on the floor
about the nominee to the First Circuit, David Barron, that has hinged
around his tenure in the Office of Legal Counsel and an opinion he
wrote specifying the outer bounds of Presidential authority in the area
of defending our national security against Americans who have signed up
with organizations that do us harm. I wish briefly to bring to the
attention of this Chamber that it is not the only issue with respect to
David Barron and the Office of Legal Counsel.
The Office of Legal Counsel has indeed had a scandal, and it is
indeed related to David Barron, but it is related to David Barron in
the best possible way, in that he is the one who cleaned up the
scandal. The scandal in question--the Presiding Officer is a former
attorney general of her State and she will understand this very
clearly--the scandal in question related to the shabby opinions that
were written by the Office of Legal Counsel to justify the torture
program that was run by the Bush administration. When I say shabby,
these were awful opinions. They were hidden from most peer scrutiny
because they would not have stood up to peer scrutiny. They made errors
as basic as failing to cite Fifth Circuit Court of Appeals decisions
right on point.
There actually had been an incident in which the Department of
Justice, where the Office of Legal Counsel is located, prosecuted a
Texas sheriff for waterboarding victims in order to get confessions out
of them. He was prosecuted as a criminal. He was convicted. The case
went to the Fifth Circuit on appeal and in the course of their written
decision on appeal, the Fifth Circuit Court of Appeals of the United
States--one row below the U.S. Supreme Court--described the technique
of water torture that was used, the waterboarding, and on a dozen
separate occasions used the word ``torture'' to describe what was being
done.
Look for that case in the Office of Legal Counsel. Look for that case
in the opinion of Office of Legal Counsel about whether torture is
accomplished by waterboarding, whether waterboarding is torture. It is
not there. They didn't even cite the case. It was a case they could
have found in their own files because the Department of Justice was the
organization that had prosecuted this sheriff as a criminal for that
act.
If you wanted to bring it up as a case and try to find a way to
distinguish it, I could accept that. I probably would disagree with
that analysis, but the failure to even cite the case, knowing how
difficult it would be for the torture program to go forward, I think is
a sign of either the worst kind of incompetence or a deliberate fix
being put into the opinion of the Office of Legal Counsel.
Having served as a U.S. attorney as well, I think the Department of
Justice should have the best lawyers in the country, and within the
Department of Justice the OLC prides itself on being the best of the
best. It was a disgraceful departure of that standard when the torture
opinions were allowed to pass. They simply don't meet any reasonable
test of adequacy. So on April 15, 2009, the Department of Justice
withdrew the Office of Legal Counsel's CIA interrogation opinions. The
memorandum for the Attorney General effecting that withdrawal was
signed by none other than David Barron. This was the instance of a man
who absolutely did the right thing. He helped clean up a terrible mess
that had been left at the Department of Justice. We should be proud of
the conduct of David Barron at the Office of Legal Counsel.
I ask unanimous consent that the 1-page memorandum for the Attorney
General signed by David Barron be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Withdrawal of Office of Legal Counsel CIA Interrogation Opinions
Four previous opinions of the Office of Legal Counsel
concerning interrogations by the Central Intelligence Agency
are withdrawn and no longer represent the views of the
Office.
April 15, 2009.
MEMORANDUM FOR THE ATTORNEY GENERAL
Sections 3(a) and 3(b) of Executive Order 13491 (2009) set
forth restrictions on the use of interrogation methods. In
section 3(c) of that Order, the President further directed
that ``unless the Attorney General with appropriate
consultation provides further guidance, officers, employees,
and other agents of the United States Government may not, in
conducting interrogations, rely upon any interpretation of
the law governing interrogation . . . issued by the
Department of Justice between September 11, 2001, and January
20, 2009.'' That direction encompasses, among other things,
four opinions of the Office of Legal Counsel: Memorandum for
John Rizzo, Acting General Counsel of the Central
Intelligence Agency, from Jay S. Bybee, Assistant Attorney
General, Office of Legal Counsel, Re: Interrogation of al
Qaeda Operative (Aug. 1, 2002); Memorandum for John A. Rizzo,
Senior Deputy General Counsel, Central Intelligence Agency,
from Steven G. Bradbury, Principal Deputy Assistant Attorney
General, Office of Legal Counsel, Re: Application of 18
U.S.C. Sec. Sec. 2340-2340A to Certain Techniques That May Be
Used in the Interrogation of a High Value al Qaeda Detainee
(May 10, 2005); Memorandum for John A. Rizzo, Senior Deputy
General Counsel, Central Intelligence Agency, from Steven G.
Bradbury, Principal Deputy Assistant Attorney General, Office
of Legal Counsel, Re: Application of 18 U.S.C. Sec. Sec. 234-
2340A to the Combined Use of Certain Techniques in the
Interrogation of High Value al Qaeda Detainees (May 10,
2005); and Memorandum for John A. Rizzo, Senior Deputy
General Counsel, Central Intelligence Agency, from Steven G.
Bradbury, Principal Deputy Assistant Attorney General, Office
of Legal Counsel, Re: Application of United States
Obligations Under Article 16 of the Convention Against
Torture to Certain Techniques that May be Used in the
Interrogation of High Value al Qaeda Detainees (May 30,
2005).
In connection with the consideration of these opinions for
possible public release, the Office has reviewed them and has
decided to withdraw them. They no longer represent the views
of the Office of Legal Counsel.
David J. Barron,
Acting Assistant Attorney General.
Mr. WHITEHOUSE. I yield the floor and note the absence of a quorum.
The PRESIDING OFFICER (Ms. Heitkamp). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. RUBIO. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________
[Congressional Record Volume 160, Number 78 (Thursday, May 22, 2014)]
[Senate]
[Pages S3262-S3267]
[...]
Mrs. FEINSTEIN. Madam President, I support the nomination of David
Barron to serve on the U.S. Court of Appeals for the First Circuit.
There is no question that David Barron has the background and
qualifications for this position.
Consider his credentials: over a decade as a Harvard law professor; 3
years at the Office of Legal Counsel, OLC, in the Clinton
administration, and another 2 years at OLC under President Obama as the
Acting Assistant Attorney General in charge of that office--during
which time he was awarded the Office of the Secretary of Defense Medal
for Exceptional Public Service and the National Intelligence
Exceptional Achievement Medal from the Office of the Director of
National Intelligence; he clerked for Justice John Paul Stevens and
Ninth Circuit Judge Stephen Reinhardt; he earned his bachelor's and law
degrees from Harvard; and a substantial majority of the ABA Committee
found him to be ``well qualified,'' their highest rating.
In sum, David Barron's record shows that he will be a jurist of the
highest caliber.
He also has a strong record of standing up for what is right on many
issues, whether it is campaign finance or gay rights.
Many distinguished individuals in both parties have written to the
Judiciary Committee to support Professor Barron. Among them are: Jack
Goldsmith, a Harvard Law professor and former head of OLC under
President George W. Bush, Michael McConnell, conservative law professor
and former Tenth Circuit judge, who described Barron as ``one of
President Obama's two or three best nominations to the appellate
courts;'' Charles Fried, law professor and former Solicitor General
under President Reagan; 15 former career attorneys at OLC who served in
administrations of both parties; and Ron George, former chief justice
of California and someone I deeply respect.
Chief Justice George wrote:
As a person who served for 38 years in a state court
system, the last 14 years as chief justice of California, I
have been particularly impressed by Mr. Barron's
understanding and respect for the critical role played by the
states and their courts in our federal system.
I respected the strong desire of some of my colleagues to have access
to the two OLC memos related to the targeted killing of an American
named Anwar al-Awlaki. Those memos were authored while Barron was
Acting Assistant Attorney General at OLC.
However, I regret that even though the administration made those two
opinions available to all Senators and even though the administration
has recently decided to make the OLC analysis public, some still insist
on delaying a vote on Professor Barron's nomination.
Let's contrast David Barron's nomination with that of another former
head of the Office of Legal Counsel, Jay Bybee, who led the office from
2001 to 2003.
He was in charge of OLC when it produced an opinion saying
waterboarding and nine other so-called enhanced interrogation
techniques were not torture. On August 1, 2002, Mr. Bybee signed an
opinion that set an unconscionably high bar for torture by saying that
``physical pain amounting to torture must be equivalent in intensity to
the pain accompanying serious physical injury, such as organ failure,
impairment of bodily function, or even death.'' That opinion was
withdrawn during the Bush administration by Bybee's successor, Harvard
Law Professor Jack Goldsmith.
Under Bybee, OLC also produced opinions about President Bush's
Terrorist Surveillance Program that contain very troubling legal
analysis. Because those opinions remain classified, I will not describe
them here other than to note that they authorized a secret surveillance
program that involved the collection of the content of communications
without a court order and was in clear violation of the Foreign
Intelligence Surveillance Act. Those OLC opinions also were withdrawn
by Bybee's successor, Professor Goldsmith.
Despite the fact that those opinions were produced when he was head
of OLC, Jay Bybee was nominated by the Bush administration to a Nevada
seat on the Ninth Circuit. He was confirmed 74 to 19 in March 2003. I
was one of 19 voting no.
Why would we confirm the man who approved the so-called ``torture
memos'' and led OLC when it approved President Bush's surveillance
program but delay David Barron, who produced superior legal work as
head of OLC? The only reason I have heard is that Senators may believe
that the two OLC opinions on Anwar al-Awlaki should be made public. Let
me address that.
First, this week the Department of Justice took steps to ensure that
the OLC analysis will be made public. The Justice Department has
decided not to appeal a court order from the Second Circuit Court of
Appeals requiring the OLC analysis to be made public. So this will
happen in the near future.
Second, Professor Barron left OLC in 2010--well before the strike
killed Awlaki in Yemen in September 2011. Since 2010, Professor Barron
has been in academia.
It wasn't Barron's decision to withhold the OLC memos from Congress
or from the public.
Let me quote from Professors Laurence Tribe and Charles Fried, both
legal experts often on opposite sides of issues. They wrote an op-ed
together about Barron in the Boston Globe. It reads, in part:
[Barron] has not advocated, much less ordered, the
withholding of any documents. His job as acting head of the
Office of Legal Counsel was to provide thorough, accurate,
and unvarnished legal opinions to the president and other
executive officials, based on the traditional legal
authorities of text, history, and precedent. We have every
reason to believe that is precisely what he did, and there is
absolutely no evidence to the contrary.
In fact, Professor Barron implemented policies that have made OLC
more rigorous, professional, and transparent.
First, when he was acting head of OLC, Barron ordered the withdrawal
of several opinions related to coercive interrogation that had been
issued during the Bush administration.
Second, on July 16, 2010, Professor Barron wrote a memo entitled
``Re: Best Practices for OLC Legal Advice and Written Opinions'' that
updated previous OLC guidance. It said that OLC ``operates from the
presumption that it should make its significant
[[Page S3267]]
opinions fully and promptly available to the public. This presumption
furthers the interests of Executive Branch transparency, thereby
contributing to accountability and effective government, and promoting
public confidence in the legality of government action.'' This
presumption did not exist in the Bush administration; David Barron was
responsible for establishing it as OLC policy. Given Barron's
impressive record and his shift of OLC toward more transparency, it
simply is wrong to oppose his nomination because a classified OLC
opinion on drone strikes has not been made public yet, a decision that
was not even his to make.
Since the OLC opinions on Anwar al-Awlaki that Professor Barron wrote
seem to have become the issue holding up this nomination, let me close
with a reminder of the specific plotting Awlaki was involved in before
he was killed in 2011.
True, Awlaki was a dual U.S.-Yemeni citizen, but he served as chief
of external operations for Al Qaeda in the Arabian Peninsula, AQAP. In
that position, he planned and directed attacks against the United
States, making him an imminent and continuing threat.
Awlaki played a significant operational role in AQAP. In 2010, the
United States designated Awlaki a ``Specially Designated Global
Terrorist'' for ``supporting acts of terrorism and for acting for or on
behalf of AQAP.''
Awlaki publicly urged attacks against U.S. persons and interests
worldwide. He worked with another American named Samir Khan to publish
AQAP's Inspire Magazine to encourage terrorist attacks against innocent
men, women, and children in the United States and elsewhere. As a
reminder, Inspire Magazine provided the Tsarnaev brothers in Boston
with the instructions for making the bomb they used at the Boston
Marathon last year.
Let me offer just a few examples of Awlaki's direct involvement in
terrorist operations:
Christmas Day Attack--In December 2009, Awlaki directed operative
Umar Faruk Abdulmutallab, who attempted to detonate an explosive device
aboard a Northwest Airlines flight to Detroit on Christmas Day. Awlaki
instructed Abdulmutallab to detonate the device while over U.S.
airspace to maximize casualties.
Fort Hood Attack--Fort Hood shooter Nidal Hasan attended al-Awlaki's
sermons in Virginia and corresponded at least 18 times with him through
email. After the attack, Awlaki posted on his blog praising Hasan's
actions and calling him his ``student and brother.''
Times Square Bombing Attempt--Faisal Shahzad, who pleaded guilty to
the 2010 Times Square car bombing attempt, told interrogators in early
2010 that he was ``inspired by'' Awlaki and communicated with him.
Package Bomb Plot--in October 2010, Awlaki had a direct role in
supervising and directing AQAP's failed attempt to bring down two U.S.
cargo aircraft by detonating explosives concealed inside two packages
mailed to Chicago-area synagogues.
In sum, there is no doubt that Awlaki was chief of external
operations for Al Qaeda in the Arabian Peninsula, AQAP, and a
continuing and imminent threat to the United States.
David Barron's legal analysis of whether the United States can target
Awlaki is cogent, careful legal analysis and reflects the kind of
consideration of due process that we should applaud, not punish.
Barron certainly should not be disqualified because he was the head
of OLC when that targeting decision--a targeting decision Barron did
not advocate for--was being contemplated and analyzed by the Obama
administration.
Let me conclude by saying this: David Barron is an impressive lawyer
and scholar with a strong record. Nobody doubts that. Distinguished
lawyers on both sides of the aisle have endorsed him wholeheartedly.
The reason for this is simple: His qualifications are first rate, and
he has under his belt many years of commendable scholarship and service
to this nation.
Simply put, he will be an outstanding jurist for the people of the
First Circuit, and I very much hope my colleagues will support him.
____________________
[Congressional Record Volume 160, Number 78 (Thursday, May 22, 2014)]
[Senate]
[Pages S3272-S3273]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF DAVID JEREMIAH BARRON TO BE UNITED STATES CIRCUIT JUDGE
FOR THE FIRST CIRCUIT
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to executive session to consider the following nomination,
which the clerk will report.
The assistant legislative clerk read the nomination of David Jeremiah
Barron, of Massachusetts, to be United States Circuit Judge for the
First Circuit.
The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the nomination of David Jeremiah Barron, of Massachusetts,
to be United States Circuit Judge for the First Circuit?
Mr. ISAKSON. Madam President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from Arkansas (Mr. Boozman) and the Senator from Indiana (Mr.
Coats).
Further, if present and voting, the Senator from Arkansas (Mr.
Boozman) would have voted ``nay.''
The PRESIDING OFFICER (Ms. Hirono). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 53, nays 45, as follows:
[Rollcall Vote No. 162 Ex.]
YEAS--53
Baldwin
Begich
Bennet
Blumenthal
Booker
Boxer
Brown
Cantwell
Cardin
Carper
Casey
Coons
Donnelly
Durbin
Feinstein
Franken
Gillibrand
Hagan
Harkin
Heinrich
Heitkamp
Hirono
Johnson (SD)
Kaine
King
Klobuchar
Leahy
Levin
Markey
McCaskill
Menendez
Merkley
Mikulski
Murphy
Murray
Nelson
Pryor
Reed
Reid
Rockefeller
Sanders
Schatz
Schumer
Shaheen
Stabenow
Tester
Udall (CO)
Udall (NM)
Walsh
Warner
Warren
Whitehouse
Wyden
NAYS--45
Alexander
Ayotte
Barrasso
Blunt
Burr
Chambliss
Coburn
Cochran
Collins
Corker
Cornyn
Crapo
Cruz
Enzi
Fischer
Flake
Graham
Grassley
Hatch
Heller
Hoeven
Inhofe
Isakson
Johanns
Johnson (WI)
Kirk
Landrieu
Lee
Manchin
McCain
McConnell
Moran
Murkowski
Paul
Portman
Risch
[[Page S3273]]
Roberts
Rubio
Scott
Sessions
Shelby
Thune
Toomey
Vitter
Wicker
NOT VOTING--2
Boozman
Coats
The nomination was confirmed.
The PRESIDING OFFICER. Under the previous order, the motion to
reconsider is considered made and laid upon the table. The President
shall be immediately notified of the Senate's action.
____________________
