[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.

                          ____________________