Judicial Nominee On Hold Over Drone Strike Justification

Harvard law professor David Barron is under fire for signing memos that allowed the U.S. to kill a U.S. citizen overseas in a drone strike. Those blocking his nomination want the documents released.

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One of President Obama's top judicial nominees is on the ropes. In his bid to become a federal appeals court judge, Harvard Law Professor David Barron has cleared nearly every hurdle in the legal establishment. But final approval is on hold as senators demand more information about the advice he gave to the White House on the use of drones to kill Americans overseas. NPR's Carrie Johnson reports.

CARRIE JOHNSON, BYLINE: Retired Supreme Court Justice John Paul Stevens thinks so highly of his former law clerk, David Barron, that the 94-year-old attended his Senate confirmation hearing. But it's Barron's work running the Justice Department Office of Legal Counsel for President Obama that's now coming in for close inspection.

CHRIS ANDERS: What the legal position of the United States is on who can be killed, and who can't be killed, ought to be public information.

JOHNSON: That's Chris Anders, of the ACLU. He's one of many advocates pushing the White House to release legal analysis by David Barron that governs how the U.S. might deploy drones to kill American terrorism suspects overseas.

ANDERS: One of the problems that we've had over the past 12 years, as a country, has been that the system of checks and balances - that system that you learned about in junior high school civics class - has been broken down, so that we have not had a Congress that has exercised healthy, strong oversight over the Executive Branch on key national security questions.

JOHNSON: Kentucky Republican Sen. Rand Paul, a critic of the Obama drone policy, is trying to change that dynamic.

SEN. RAND PAUL: You know, I guess I'd like somebody to be appointed to the court who has a greater respect for the Constitution and for what due process means.

JOHNSON: Paul says he's read the secret memos, and he's worried about the executive branch making life-or-death decisions with no input from judges or defense lawyers.

PAUL: It's a mistake to think whether you have five lawyers look at it, or 1,000 lawyers look at it. If they're all on one side of the equation - basically, they work for the government - that isn't an adversarial process, and it isn't due process.

JOHNSON: Paul says he hopes President Obama withdraws the Barron nomination and moves to make the drone legal analysis public. White House spokesman Eric Schultz tells NPR in a written statement the administration has met lawmakers' demands, and offered senators private access to all of Barron's writings about the use of lethal force against U.S. citizens. The White House says Barron's exceptionally well-qualified to become a judge. Earlier this year, Democrats on the Judiciary Committee unanimously voted to send his nomination to the full Senate.

But as the drone controversy simmers and the midterm elections approach, it's not clear when they will find 51 votes to overcome a filibuster. Walter Dellinger, who ran the Office of Legal Counsel for President Bill Clinton, says the debate over Barron's legal work is misguided.

WALTER DELLINGER: His role is not to make a policy judgment about what limits there ought to ever be on targeting an American citizen. His only role is to decide whether it's lawful, whether there's lawful authority.

JOHNSON: For 200 years, Dellinger says, American citizens have been viewed as appropriate targets if they're engaged in active combat against their own country. The question is what constitutes active combat, and whether places like Yemen are part of the battlefield. Dellinger says if Congress is upset about the administration's use of drones, lawmakers can rein it in by passing a law.

Carrie Johnson, NPR News, Washington.

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