WASHINGTON — The Senate should reject President Barack Obama’s nominee for a federal appeals court because his secret legal memos justifying the use of drones to kill American terror suspects abroad violate the Constitution, a leading opponent said Wednesday.
The criticism from Sen. Rand Paul, R-Ky., came as the Senate moved toward a crucial procedural vote on David Barron, a former Justice Department official under Obama and President Bill Clinton. Obama has nominated Barron to the 1st U.S. Circuit Court of Appeals, based in Boston.
The administration on Tuesday decided to release a censored version of one Barron memo in which he arguing that targeting an American in counterterrorism operations is constitutional.
“I cannot support and will not support a lifetime appointment of anyone who believes it’s OK to kill an American citizen not involved in combat without a trial,” Paul said in the Senate.
Paul noted that Obama said during his 2008 presidential campaign that he opposed Bush administration claims that presidents have the power to detain American citizens on charges of being enemy combatants.
“Now we are condoning killing Americans without a trial,” said Paul, a possible 2016 White House contender. “Where, oh where has candidate Obama gone?”
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Several Democratic senators have insisted on the public release of Barron’s documents on the killings. The decision to disclose one memo won over at least two senators needed by Democrats to confirm Barron.
Sen. Ron Wyden, D-Ore., called the administration’s move “clearly a very constructive step” and he said he would back Barron. A day earlier, Sen. Mark Udall, D-Colo., announced he would support the nominee, now a Harvard Law School professor.
Democrats control 55 Senate votes. Under an easing of filibuster rules they pushed through the chamber in November, Senate Majority Leader Harry Reid will need just a simple majority to end delaying tactics against Barron, not the 60 votes once necessary.
A confirmation vote would occur Thursday.
Anwar al-Awlaki, an American who became an al-Qaida leader, was killed by a U.S. drone in Yemen in 2011. The Justice Department has acknowledged that three other Americans also have been in overseas counterterrorism operations involving drones, but that those deaths were inadvertent.
In 2009 and 2010, Barron was acting head of the department’s Office of Legal Counsel.
The department’s decision to put out the censored drone memo and avoid fighting an order by a federal appeals court to do so was described by two administration officials who spoke on condition of anonymity because they were not authorized to discuss the matter by name.
The actual release might take time because court approval is needed for deletions to the memo.
The White House has let senators read at least one uncensored Barron memo that provides a constitutional rationale for using deadly force in counterterrorism operations against Americans who are not on a field of combat.
In a letter a week ago, the Committee for Justice and 46 other conservative groups and individuals asked senators to oppose Barron because he is “arguably the most unabashed proponent of judicial activism” nominated by Obama.
The liberal American Civil Liberties Union urged senators to delay a vote until they had read any legal opinions on the killings written or signed by Barron.
ALAN FRAM, Associated Press
Associated Press writer Nedra Pickler contributed to this report.