Merkley Statement on Barron Nomination

WASHINGTON — Oregon’s Senator Jeff Merkley released the following statement on David Barron’s nomination to the United States Court of Appeals for the First Circuit:

David Barron is an impressive and accomplished attorney and legal scholar, and he will be a strong addition to the federal bench.  I am confident that he will bring to the job an appropriate sense of humility and empathy, and will apply the law fairly, with an appreciation for how the law impacts working Americans.  For these reasons, I voted to move forward on his nomination and will vote to confirm him to the United States Court of Appeals for the First Circuit.

His nomination has sparked an important public debate over the use of drones to target terrorists.  An issue of particular concern has been his authorship while Acting Assistant Attorney General for the Office of Legal Counsel (OLC) of legal opinions pertaining to the use of lethal force against senior terrorist leaders, including a U.S. citizen, Anwar al-Awlaki.  After reading the unclassified white paper, classified opinions made available to Senators, and meeting with Mr. Barron this week, I am satisfied that the legal opinions he was primarily responsible for authoring are a reasonable effort to wrestle with how to put narrow limits on executive action within a specific and challenging set of facts where few precedents exist.

The debate over these memos raises important issues that I believe merit significant additional attention, especially how to define the boundaries of government action in our ongoing fight against terrorists.  Applying the legal framework developed for traditional battlefields to the battle against terrorism is not a perfect fit, and we need to grapple with the parallels and differences.   

I believe that in a democracy, this debate over how we apply our constitutional principles must be open and public.  I am pleased that the administration has said it will comply with a court order and release a redacted, declassified version of the OLC memo in the al-Awlaki case, and I urge the government to do so swiftly. I am also pleased that Mr. Barron argued in 2004 that OLC legal opinions generally should be made public.

Going forward, the principle of transparency should be applied much more broadly. Citizens should have full access to declassified interpretations of written law that guide the application of that law. Secret law has no place in our democracy.

I am confident that Mr. Barron shares a strong commitment to transparency, the rule of law, and the protections of due process.  He will be a fair and thoughtful jurist, not only with respect to these tough national security issues, but on the wide range of subjects that come before a circuit court judge.