” … Madam President, I thank the Senator from Kentucky for the time. Senator Paul and I have worked very closely on a number of national security issues over the last several years, because we share the view that it is possible to protect both American security and American constitutional liberty at the same time. We may not agree on every single issue, and we certainly sometimes disagree on particular judicial nominations, but Senator Paul and I are aligned on what I consider to be some core principles of democracy, so I am grateful for both the passion and the intellectual rigor that he brings to these issues.
Madam President, the Senate will be voting today on the nomination of David Barron to serve as a judge for the 1st Judicial Circuit. Mr. Barron’s nomination has been endorsed by a wide variety of people, including respected jurists from across the political spectrum. He has received particularly vocal endorsements from some of the nation’s most prominent civil rights groups. But the aspect of his record that has probably received the closest scrutiny in recent weeks is his authorship of a legal opinion regarding the President’s authority to use military force against an individual named Anwar Al-Aulaqi, who was both a US citizen and a senior leader of the Al-Qa’ida terrorist organization.
I am quite familiar with this particular memo. The Executive Branch first acknowledged its existence three years ago, in response to a question I asked at an open hearing of the Senate Intelligence Committee. I followed up by working with my colleagues and pressing the Executive Branch to provide this memo to the Intelligence Committee. This month the administration made this memo available to all members of the Senate. And Executive Branch officials have now said that they will provide this memo to the American people as well. This is clearly a very constructive step and I plan to vote yes on Mr. Barron’s nomination.
But this episode is about more than a single memo. It really illustrates the value of congressional oversight, which is overlooked far too often.
In his classic work on democratic government, Woodrow Wilson wrote that conducting oversight was one of the most important functions of Congress. He suggested that it might even be more important than passing legislation. He wrote “It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees.” He added that Congress must examine “the acts and the disposition” of the Executive Branch, and “scrutinize and sift them by every form of discussion.” He said if Congress failed in this duty then the American people would remain ignorant “of the very affairs which it is most important that [they] understand and direct.”
Woodrow Wilson may not have anticipated the size and scale of the modern national security apparatus, but I believe that his words are just as true today as they were a century ago. As the elected representative of nearly four million Americans, I have spent years working from the theory that Senators have an obligation to understand how the Executive Branch is interpreting the President’s authority to use military force against Americans who have taken up arms against our country. And I have long believed that it is my obligation to make sure that my constituents in Redmond and Troutdale and Dallas, Oregon understand it as well. I believe that every American has the right to know when their government believes it is allowed to kill them.
In the case of Anwar Al-Aulaqi, as I have said before, I believe that the President’s decision to authorize a military strike in those particular circumstances was legitimate and lawful. And I have detailed my views on this case in a letter to the Attorney General that is posted on my website. So, I agree with the conclusion that Mr. Barron reached in his now-famous memo. To be clear, while I agree with the conclusion this is not a memo I would have written, as it contains some analytical leaps that I would not endorse. It jumps to a few conclusions, and leaves some important questions unanswered. I am hopeful that making this memo public will help generate the public pressure that is needed to get these questions answered. I’m talking here about fundamental questions like, How much evidence does the President need to determine that a particular American is a legitimate target for military action? Or, Can the President strike an American anywhere in the world? What does it mean to say that capture must be ‘infeasible’? And exactly what other limits and boundaries apply to this authority? Mr. Barron wasn’t asked to answer these questions, but it is vitally important that the public get answers to them, since they are essential to understanding how Americans’ constitutional rights will be protected in the age of 21st century warfare
In addition to getting detailed, public answers to these questions, another important next step will be for Congress to review the other Justice Department memos regarding the President’s authority to use military force outside of active war zones. Clearly the most important memos on this topic are the ones that Congress has now seen, regarding the use of lethal force against Americans, but it will be important for Congress to review the memos on other aspects of this authority as well. The past few years have shown that when the public is allowed to see and debate how our government is interpreting the law, it leads to meaningful changes in favor of protecting privacy and civil liberties.
It is unfortunate that it took Mr. Barron’s nomination for the Justice Department to make these memos public. I will say here that I have been frustrated over the past few years by the Justice Department’s resistance to providing Congress with memos that outline the Executive Branch’s official understanding of the law. When David Barron was the head of the Justice Department’s Office of Legal Counsel, I believe that congressional requests to see particular classified memos and legal opinions were appropriately granted. But in the years since Mr. Barron moved on from that position, congressional requests to see memos and opinions from that office have frequently been stonewalled.
The Executive Branch often makes the argument that these memos constitute confidential, pre-decisional legal advice to the President. Here’s the problem with that argument: the President should certainly be able to get confidential legal advice before he makes a decision, but once a decision has been made and the legal memo from the Justice Department has been sent to the agencies that will carry out the President’s decision, that memo is no longer pre-decisional advice. It is the government’s official legal basis for actual acts of war, and as such it is entirely unacceptable to withhold it from Congress. Congress has the power to declare war, and Congress votes on whether to continue funding wars, so it is vital for Congress to understand what the Executive Branch believes the President’s war powers are. In that same classic work on Congress, Woodrow Wilson said “It is even more important to know how the house is being built than to know how the plans of the architect were conceived.” As a former basketball player, I often say that sections of the playbook for combating terrorism will often need to be secret, but the rule book that the United States follows should always be available to all of the American people. Our military and intelligence agencies will sometimes need to conduct secret operations, but they should never be placed in the position of relying on secret law.
So, I am very pleased that the Executive Branch will provide this memo to the American public, and I believe that this constructive step will lead to additional steps that are equally important. This episode is an object lesson in how Congress can use the levers that it has to fulfill one of its most important functions, and as my colleagues and I engage in our perennial discussions about how to make Congress more functional, I believe that this is an experience that we would do well to remember.”
~ U.S. Senator RON WYDEN [Democrat – Oregon]
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