David Barron is Confirmed, but Questions Surrounding His “Drone Memo” Remain Unanswered

Harvard law professor, former Acting Assistant Attorney General for the Justice Department’s Office of Legal Counsel, recipient of the Office of Secretary of Defense Medal for Exceptional Public Service and the National Intelligence Achievement Medal. This partial list of impressive credentials makes David J. Barron an ideal candidate for a federal judgeship nominee. But this list does not include the credential for which Barron is most famous—the credential that makes his nomination controversial.  David Barron is the co-author of a legal document used by the Obama administration to justify the extrajudicial killing of American citizens overseas.

Senators across party lines demanded the release of the so-called “Drone Memo”, in order to proceed with Barron’s nomination for a seat on the U.S. Court of Appeals for the First Circuit. The White House acquiesced, agreeing to release the memo, and on Thursday, May 22nd, Barron’s nomination was confirmed by the Senate.

The “Drone Memo” is the colloquial name for the DOJ white paper that gives a legal justification for the presidential power to execute an American citizen without charge, trial, or a jury. The promise of its release as a bargaining chip in the nomination process is curious given that a similar DOJ white paper on the extrajudicial killing of an American overseas was leaked to NBC News in early 2013. Barron’s “Drone Memo” cannot be remarkably different than this one, and the purpose of the document is already understood by all—it grants the President the power to kill American terrorists without the due process of law enumerated in the Constitution.

There are several problems with this situation. Firstly, Barack Obama is the 2009 Nobel Peace Prize winner “for his extraordinary efforts to strengthen international diplomacy and cooperation between peoples” according to the official Nobel Prize website. Hindsight renders this statement astoundingly ironic. He is a Peace Prize winner who has the power—a power introduced during his presidency and outside of traditional legislative process—to kill a citizen of his own country. And he has not hesitated to wield that power: Anwar al-Awlaki and his 16 year old son were killed by separate drone attacks in 2011. Abdulrahman al-Awlaki (Anwar’s son) was killed over dinner with friends and according to former White House Press Secretary Robert Gibbs, he was killed due to his lack of a “responsible” father. Gibbs said, “I would suggest that you should have a far more responsible father if they are truly concerned about the well-being of their children. I don’t think becoming an al Qaeda jihadist terrorist is the best way to go about doing your business.” Indeed, 16 year-old Abdulrahman might still be living today had he just chosen a “far more responsible” father, and if it were remotely possible to choose one’s own father, then perhaps Abdulrahman could be at fault, but unfortunately one does not choose one’s own father, and a reasonable person could recognize this basic fact. If that was the motivation for the drone strike, then it would be highly illegal.

The previously leaked DOJ document outlining the legal apparatus for justifying the killing of an American terrorist stipulates three conditions: “(1) an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United State; (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and (3) the operation would be conducted in a manner consistent with applicable law of war principles.” In addition, an American target of a drone strike would have to be a “senior operational leader of al-Qa’ida or an associated force of al-Qa’ida” and there is no evidence to suggest that Abdulrahman held any such position. There is debate over whether the teenager was the sole target of the attack or just ‘collateral damage’ of a strike intended for someone else. Even John Brennan, formerly the senior adviser on counterterrorism to President Obama and now the Director of the CIA, expressed concern that the drone, which killed Abdulrahman, was indeed meant for Abdulrahman. Alas, the true nature of the operation is wrapped in secrecy by an administration that is “committed to creating an unprecedented level of openness in Government”.

An “unprecedented level of openness” could be achieved by admitting to wrongdoing or releasing the documentation of specific orders for drone strikes to prove that an innocent teenager was not deliberately killed. But President Obama has never given a public acknowledgement or response to the death of Abdulrahman and has never definitively confirmed that the drone was meant for another target while the son of a terrorist killed by a drone just two weeks earlier was simply in the wrong place at the wrong time. Instead, President Obama appointed one of the men who made killing American citizens possible to a higher position within the United States government.

Executing an individual is legal under international law when the killer and the killed are combatants engaged in war. If the United States government claims that the killing of American citizens overseas is a legal act of war, then the entire globe is a theater of a war that never ends. This is not only a severe stretch of legal interpretation but it is also bad foreign policy. By making the entire globe a potential battleground then people who never even knew they were living on said battleground will inevitably be killed. The United States may gain a new swath of enemies through its policy of executing individuals whenever it feels compelled to do so. According to a report on drones in Pakistan by Amnesty International, the Pakistani government claims 400-600 Pakistani civilians have been killed by American drone strikes.  Organizations such as the Long War Journal, New America Foundation, and the Bureau of Investigative Journalism claim 153-926 civilians have been killed, and the U.S. government’s numbers are unsurprisingly classified. And this is only Pakistan.

While the exact number of civilians killed remains in a shroud of secrecy, the U.S. government and President Obama claim that the number is much lower than reported by non-governmental agencies around the world, Amnesty International surmises that it is very possible that the low number of civilians killed by drone strikes claimed by the U.S. government could be the result of the U.S. government failing to count unidentified individuals as civilians. But according to international humanitarian law, if the U.S. government fails to count unidentified individuals as civilians and instead counts unidentified individuals as combatants, the U.S. government would be committing a war crime. If the U.S. targets persons merely belonging to a group and not directly involved in militant activities of said group, the U.S. government would be committing a war crime. If a drone strike leads to an inordinate number of civilians killed or injured proportional to the military purpose of the drone strike, the U.S. government would be committing a war crime. A drone strike is supposed to be the last possible option for dealing with an enemy combatant. And yet, hundreds of non-combatant individuals have potentially been killed as a result of U.S. drone strikes, let alone the number of enemy combatants themselves. The use of drones hinges on this idea that the U.S. is engaged in a “global war”, but claiming that a drone strike on an al-Qaeda cleric belonging to a dispersed, stateless organization whose involvement in al-Qaeda attacks was informed speculation at best would not be supported by international humanitarian law.

Amnesty International is an organization with a purpose and a goal and that purpose is to protect human rights and humanitarian law no matter the potential cost, so the objective of their report on drones is very clear. They are not fans of drones to say the least. Whatever their ‘agenda’ may be, however, the report is based on the principles of humanitarian law that govern worldwide conflict and to which the United States, as a member-state of the United Nations, has agreed.

The DOJ white paper leaked in 2013 and presumably the “Drone Memo” are documents that are supposed to make drone strikes on American citizens very specific—only “senior operational leaders” of al-Qaeda that meet the three aforementioned conditions can be targeted. But in doing so, the government has opened a Pandora’s Box of horrendous implications—what happens when al-Qaeda is no longer the chief threat national security and some other group rises? What happens when there is a new group after that? What if there are multiple groups threatening the country at the same time? Will there be individual Presidential orders written by DOJ officials for each group or will there come a time when one order is written to justify the killing of any operator of any group that threatens national security? Because there is no legal precedent for the extrajudicial killing of American citizens, the “Drone Memo” is the precedent. The sixth amendment is pretty clear: American citizens have a right to a trial, a lawyer, a jury, knowledge of the accusers and the evidence presented against them. Neither Anwar al-Awlaki nor his son were granted any of these guarantees before their executions.

The release of “Drone Memo” is politics at its worst: released only to assure the votes of congressmen and women for a political nomination. The content of the memo will not shock because the fact that it exists in the first place is shocking enough. With so many questions surrounding the “Drone Memo” and how it has been used by the Obama administration, Barron’s nomination and confirmation comes as somewhat of a shock as well. It would have been nice to have these questions answered before Barron was nominated and confirmed. Obviously, that did not happen, but it does not mean the nature of the “Drone Memo” and its role in the deaths of the al-Awlakis should remain unclear. It would be nice to have clarity. It would be nice to see the specific drone order that killed Abdulrahman, whether by accident or on purpose, released. It would be nice to see the Obama administration release the true number of innocent civilians killed by drones. And it would be nice to see the end of broadened Presidential powers based on shaky legal foundations. It would be nice for President Obama to back up his words and work to make his administration truly the most transparent administration in American history. But unfortunately, in the current political climate, it turns out that it’s not secret drone strikes or legal justifications for killing Americans but rather transparency and openness that would be the most shocking occurrences of all.