This would be pretty funny, if the subject matter weren’t so serious. As you know, there’s an ongoing dispute between a bipartisan group of Senators (including at least Republican Rand Paul and Democrats Mark Udall and Ron Wyden) and the Obama administration regarding a memo authored by federal appeals court nominee and Harvard law professor David Barron that apparently provided legal justification for the assassination of U.S. citizen Anwar al-Awlaki. I’ve already argued that the administration should release the memo before the Senate votes on Barron’s confirmation.
Well, now, hold on, say Harvard law professors Laurence Tribe and Charles Fried! Tribe and Fried are here to assure us that we needn’t worry our pretty little heads about the Barron memo. He is a very smart and upstanding fellow, and ought to be confirmed forthwith.
Seriously, that’s about the gist of the piece. Here’s their basic argument on the memo.
Barron didn’t order the strikes or design the legal framework for their authorization.
Um … actually, he may well have designed the legal framework for their authorization. Isn’t that exactly what we’ll find out when we get to read the memo?
Indeed we do not know whether he personally agrees with that policy, the wisdom and morality of which it was not his job to assess.
Who cares what his personal views are on drone strikes? He’s not up for Secretary of Defense. The point is that we want to see the legal analysis, since his job as a federal judge will be to offer legal analysis on hard questions. Whether he personally agrees with the policy is a red herring. We want to see what he did when the stakes were really high.
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.
OK, that is downright embarrassing. “We have every reason to believe that” he did an awesome job … why, because we know and like the guy, and besides, he teaches at Harvard? And everyone else should just take your word for it? And then this: “there is absolutely no evidence to the contrary” – THAT’S BECAUSE WE HAVEN’T SEEN THE MEMO YET!! Come on, Larry and Charles – a first-year law student would get an F for that argument. It’s frankly appalling that you saw fit to publish it.
Obama can end this by simply releasing the memo, redacted as necessary, to the public, as a federal appeals court has already ordered him to do. Nothing else is satisfactory, and IMHO the Senators are right to insist. I really don’t think that Barron’s colleagues at Harvard Law are doing him any favors by publishing silly pieces like this one, which read more like temper tantrums than serious argument, and seem very unlikely to convince anyone of anything.
Nixon used the same argument to claim that there was nothing incriminating in the White House tapes, so releasing them would just confuse the issue.
As I remember Sam Ervin called Nixon out about it.
Sad to see Professor Tribe, (who undoubtedly remembers the Watergate Hearings) resorting to Nixon’s argument at this stage of his career.
It will be very interesting to see how she plays this one. Perhaps she is waiting for someone else to make the decision for her, which they may well do.
More generally, however, law professor Obama appears to have made very similar arguments with respect to his overall intelligence policy approach: trust me. That’s not good enough in a free society.
Grade: needs work, please revise and resubmit if you want credit for this assignment.
And frankly I think it’s good politics for liberals as well as more conservative swing and red state Senators to vote this one down. For the former, it would show that we are serious about challenging our party’s leaders when they veer too far from their principles-and for the latter it’s probably the one vote Pryor or Hagan can make against the President I would be perfectly ok with.