When the White House nominated David Barron to be a judge on the United States Court of Appeals for the First Circuit, based in Boston, it expected the usual Republican opposition. Mr. Barron, a Harvard law professor, is known as a liberal who was pointedly critical of President George W. Bush’s national security policy. What it didn’t expect — but should have — was that Democrats would have some problems with the nominee, too.
Mr. Barron served as a top official in the Justice Department’s Office of Legal Counsel under President Obama, and he wrote several memos justifying the use of drones to kill an American citizen affiliated with Al Qaeda. The citizen, Anwar al-Awlaki, died in a C.I.A. drone strike in Yemen in 2011.
The administration has never explained in detail the legal justification for this killing and has resisted all requests to make public Mr. Barron’s memos. That didn’t sit well with several Senate Democrats who have been critical of the drone policy and the excessive secrecy surrounding it, and they demanded that the White House release the memos. Senators have a right to see the quality of a nominee’s legal analysis, particularly when he is trying to make a case for a morally questionable activity, before they confirm him to a lifetime post.
On Tuesday, the administration agreed to allow any senator to see the classified memos behind closed doors, an expansion of its need-to-know policy that restricted the information to those on relevant committees. That will probably be enough to ensure Mr. Barron’s confirmation on a majority vote now that the Senate has eliminated the three-fifths requirement for nominations.
But it is not enough for the public, which also has the right to evaluate one of the Obama administration’s most important national security decisions, and the qualities of the people it is nominating to the bench. ...
This is one of those weird days when I agree with Rand Paul, Reason magazine, AND the NY Times editorial board.