Bench Memos

When Lawyers Evolve

Yesterday the New York Times revealed that the “Obama administration’s secret legal memorandum that opened the door to the killing of Anwar al-Awlaki” was drafted by OLC lawyers David Barron and Martin Lederman. Barron and Lederman, you may recall, were previously known as critics of the Bush administration’s claims of executive authority. Here is what Glenn Greenwald — one of the Bush administration’s fiercest critics — wrote about Barron and Lederman back in 2009: 

There is some genuinely good news today from the Obama camp:   following up on the appointment of the excellent Dawn Johnsen to be OLC Chief, it was announced yesterday that Johnsen’s second-in-command at OLC will be Harvard Law Professor and vehement Bush critic David Barron, who, among other things, co-wrote this superb Law Review article arguing that the President’s “war powers” have been wildly overstated over the last many decades while Congressional power in this area has been vastly understated. Also joining the Justice Department in a still-unknown capacity is one of the smartest, most principled, and most unyielding opponents of the legal radicalism that prevailed over the last eight years:  blogger and Georgetown Law Professor Marty Lederman (who co-wrote that law review article with Barron on the Constitutional limits on the “commander-in-chief” powers). 

In a notable show of consistency, Greenwald is taking those words back, and he does not seem interested in letting the Obama lawyers off the hook. “I obviously could have not been more wrong,” he says

Assassination by Hellfire missile being more invasive than waterboarding, I think it would be fair for us to expect many others to follow Greenwald’s lead. The Occupy Wall Street protests will morph into “Obama lied” protests. Sooner than later the New York Times and MSNBC will lead calls for Lederman and Barron to be investigated for war crimes, fired from their faculty positions, and disbarred. At the very least, we should expect the New York Times to echo these words, from a 2009 editorial about the Bush interrogation memos titled “The Torturers’ Manifesto”: 

They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country’s most basic values. . . .  [President Obama] has an obligation to pursue what is clear evidence of a government policy sanctioning the torture and abuse of prisoners — in violation of international law and the Constitution. . . . After eight years without transparency or accountability, Mr. Obama promised the American people both. His decision to release these memos was another sign of his commitment to transparency. We are waiting to see an equal commitment to accountability.

Right? Right. 

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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