Bench Memos

On OLC Memos: Barron v. Bybee

When Office of Legal Counsel memos on torture signed by Judge Jay Bybee were disclosed, Senate Democrats were furious.  They claimed that they should have known about the memos before Bybee was confirmed.  Senator Patrick Leahy told the Washington Post that had these memos been disclosed earlier, Bybee would not be sitting on the U.S. Court of Appeals for the Ninth Circuit. Others openly considered the possibility of impeachment.  

Fast forward a few years and another former OLC head, Harvard’s David Barron, has been nominated to a federal appellate court, the U.S. Court of Appeals for the First Circuit.  Like Bybee, Barron signed memoranda relating to the war on terror.  According to various reports, Barron signed off on six memos concerning the use of drones to target alleged terrorists, including American citizens. These memos and their conclusions are quite controversial. Yet Senator Leahy and his fellow Democrats seem wholly uninterested in the content of these memos and are poised to confirm Barron without knowing the extent to which he authorized extrajudicial killings of American citizens.  Thus far, only one of the six will be released, and that’s due to a court order. 

Senate Democrats’ lack of interest in disclosure is even more conspicuous given how insistently these same Senators demanded to see privileged memoranda from the Solicitor General’s office written by Miguel Estrada when he was nominated to the D.C. Circuit.  It seems they only demand disclosure when they seek to target Republican nominees.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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