Fate of Barron appeals court nomination unclear as White House offers drone memos

David Barron testifies before the Senate Judiciary Committee in November during a hearing on his nomination to serve on a federal appeals court. (Chip Somodevilla/Getty Images)

The fate of a federal appeals court nominee who helped establish the legal foundation for killing American citizens in drone strikes remains unclear even as the Obama administration granted access Thursday to memos he authored in hopes of salvaging his nomination.

Administration officials made available to senators memos written by David J. Barron, who has been nominated to serve on the U.S. Court of Appeals for the 1st Circuit. Barron worked in the Office of Legal Counsel at the Justice Department and helped write the legal justification for President Obama’s decision to order a 2011 drone strike that killed Anwar al-Awlaki, a U.S. citizen who had become a senior al-Qaeda operative in Yemen.

The memos were made available Thursday after senators in both parties had complained this week that the administration continues to cloak counterterrorism operations in secrecy despite vows by Obama to provide greater transparency.

"I hope and expect that all senators will review these materials," said Sen. Patrick J. Leahy (D-Vt.), who chairs the Judiciary Committee and supports Barron's nomination.

Under new rules established by Democrats controlling the Senate last year, federal judge nominees and executive-office appointments can be confirmed by a simple majority of senators, rather than the 60-vote super majority that had been required for more than two centuries. The change does not apply to Supreme Court nominations.

But with so many Democrats concerned about the administration's drone policy, sufficient support for Barron is uncertain. Senate leaders have yet to set a vote on his nomination to join the appeals court with jurisdiction over federal cases in Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico. He faces opposition from a mix of liberal Democrats and conservative Republicans concerned with his involvement in establishing the administration's drone policy.

Sen. Ron Wyden (D-Ore.), a member of the Intelligence Committee and a frequent critic of Obama's counterterrorism policies, said Thursday that "the public has a right to know" the administration's justification for drone strikes on American citizens.

"To me, the central question has always been on intelligence matters," Wyden told reporters. "There is a difference between secret operations. They have to be kept secret, because otherwise Americans can die and be hurt. But the rules and the underlying policies -- those ought to be public."

Other Democrats, including Sens. Jeff Merkley (Ore.) and Mark Udall (Colo.), have also expressed concern about Barron's work and this week called for the public release of Barron's memos.

Republicans including Sen. Ted Cruz (R-Tex.), a frequent Obama critic, agreed. "It would be a grave mistake to confirm Mr. Barron without meaningful access to the documents he authored. Any Democrat concerned about civil liberties should have profound concerns here."

Sen. Charles E. Grassley (R-Iowa), the ranking Republican on the Judiciary panel, said Thursday that senators wouldn't be able to completely consider Barron's nomination "without complete access to his writings. It’s even more important now that we know that some of those writings concern perhaps the most controversial constitutional issue that the Office of Legal Counsel has addressed in recent years."

The Barron controversy comes as other judicial and executive nominees have been confirmed at a notable clip in recent days. Three more district court nominees were confirmed Thursday, in addition to a new undersecretary of education and Pamela Hamamoto, a grade school friend of Obama's from Hawaii who will be U.S. ambassador to the United Nations in Geneva. Another district court nominee is expected to be confirmed Monday evening.