[Congressional Record Volume 160, Number 77 (Wednesday, May 21, 2014)]
[Senate]
[Pages S3201-S3202]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           BARRON NOMINATION

  Mr. WYDEN. Madam President, it wasn't very long ago when the Senator 
from Kentucky and I were on the floor talking about drones, and I want 
to make sure it is understood that Senator Paul's passion, intellectual 
rigor, and devotion to these issues of liberty and security--which he 
and I have worked on together now for a number of years--is much 
appreciated.
  I come to the floor today to address the issue Senator Paul and I 
have discussed in the past, and that is how vigorous oversight--and 
particularly vigorous oversight over the intelligence field--needs more 
attention. It is not something we can minimize. It goes right to the 
heart of the values the Senator from Kentucky and I and others have 
talked about, and that is liberty and security are not mutually 
exclusive. We can have both.
  The Senator from Kentucky and I often joke about how the Senate would 
benefit from a Ben Franklin caucus. Ben Franklin famously said, in 
effect, that anybody who gives up their liberty for security doesn't 
deserve either.
  The Senator from Kentucky and I have certainly had some disagreements 
from time to time on a particular judicial nomination, but I thank him 
for his time this morning, and I thank him for the opportunity we have 
had over the years to make the case about how important these issues 
are. The American people ought to insist that their elected officials 
put in place policies which ensure we have both liberty and security. I 
thank the Senator from Kentucky for that, and I have some brief remarks 
this morning.
  Of course, the Senate is going to vote on the nomination of David 
Barron to serve as a judge for the First Judicial Circuit. His 
nomination has been endorsed by a wide variety of Americans, including 
respected jurists from across the political spectrum.
  Mr. Barron has received particularly vocal endorsements from some of 
our country's most prominent civil rights groups. Of course, the aspect 
of his record that has perhaps 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 who is both a 
U.S. citizen and senior leader of Al-Qaeda. I am quite familiar with 
this particular memo.
  The executive branch first acknowledged its existence 3 years ago in 
response to a question I asked at an open hearing of the Senate Select 
Committee on Intelligence. I followed up by working with my colleagues 
and pressing the executive branch to provide this memo to the 
intelligence committee.
  This month, of course, the administration made this memo available to 
all Members of the Senate. Executive branch officials have now said 
they will provide this memo to the American people as well. This is 
clearly, in my view, a very constructive step, and I am going to vote 
yes on Mr. Barron's nomination.
  I want to take a minute to outline that this whole matter is about 
much

[[Page S3202]]

more than a single memo. It drives home how incredibly important 
vigorous congressional oversight is, which is, of course, the mission 
of the intelligence committee, and it is the mission of all of us.
  In his classic work on democratic government, Woodrow Wilson wrote 
that conducting oversight was one of the most important functions of 
Congress. He suggested it might be more important than passing 
legislation. Woodrow Wilson 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 disposition'' of 
the executive branch and ``scrutinize and sift them by every form of 
discussion.'' Woodrow Wilson said if the 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 might not have been able to anticipate the size and 
scale of the modern national security apparatus, but I believe his 
words are as true today as they were a century ago.
  As the elected representative of nearly 4 million Americans, I have 
spent years now working from the theory that all of us in the Senate 
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 Nation. I have long 
believed it is my obligation to make sure that those I am honored to 
represent in Redmond, Troutdale, and Dallas, and all across Oregon, 
understand that as well. I believe every American has the right to know 
when their government believes it is allowed to kill them.
  In the case in question, as I have said before, I believe the 
President's decision to authorize a military strike in those particular 
circumstances was legitimate and lawful. I have detailed my views on 
this case in a letter to the Attorney General that is posted on my Web 
site.
  I agree with the conclusion Mr. Barron reached in what has now 
certainly become a famous memo. To be clear, while I agree with the 
conclusion, this is not a memo I would have written. It contains, in 
effect, some analytical leaps I would not endorse. It jumps to several 
conclusions, and it certainly leaves a number of important questions 
unanswered.
  I am hopeful that making this memo public will help generate the 
public pressure that is needed to get those additional questions 
answered. I am talking here about fundamental questions, such as: How 
much evidence does the President need to determine that a particular 
American is a legitimate target for military action? 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 was not asked to answer these questions, but it is my view 
it is vitally important that the American people get answers to those 
questions. In my view, those questions are essential to understanding 
how Americans' constitutional rights will be protected in the age of 
21st century warfare, and I am going to stay at it until the American 
people get answers to those questions.
  In addition to getting detailed public answers to these matters, 
another important step will be for the Congress to review the other 
Justice Department memos regarding the President's authority to use 
military force outside of an active war zone. Clearly, the most 
important memos on this topic are the ones the Congress has now seen 
regarding the use of lethal force against Americans, but it is also 
going to be important for the Senate to review the memos on other 
aspects of this authority as well.
  The past few years have shown when the public is allowed to see and 
debate how our government interprets the law, it has led to meaningful 
changes in terms of ensuring that there are additional protections for 
privacy and civil liberties without sacrificing our country's security 
at a dangerous time.
  It is unfortunate that it took Mr. Barron's nomination for the 
Justice Department to make these memos public. I will say it has been 
frustrating over the past few years to see the Justice Department's 
resistance to providing Congress with memos that outline the executive 
branch's official understanding of the law. When Mr. Barron was the 
head of the Justice Department's Office of Legal Counsel, I believe 
congressional requests to see particular classified memos and legal 
opinions were appropriately granted. However, in the years since Mr. 
Barron moved on from that position, congressional requests to see memos 
and opinions have frequently been stonewalled--and I use those words 
specifically--frequently stonewalled.
  The executive branch often makes the argument that these memos 
constitute confidential, predecisional legal advice to the President. 
Here is the problem with that argument: The President has to 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 predecisional advice; it is the 
government's official legal basis for actual acts of war, and as such, 
in my view, it is entirely unacceptable to withhold it from the 
Congress.
  Congress has the power to declare war, and Congress votes on whether 
to continue funding wars, so it is vital for the Congress to understand 
what the executive branch believes the President's war powers actually 
are. In that classic work I have discussed from Woodrow Wilson, he 
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 the United States follows should always be available to the 
American people--all of the American people. Our military intelligence 
agencies often need to conduct secret operations, but they should never 
be placed in the position of relying on secret law.
  I am very pleased this morning that we know the executive branch is 
going to provide this memo to the American people, and I believe this 
constructive step must lead to additional steps that are equally 
important. This episode is an object lesson in how the U.S. Congress 
can use the levers it has to fulfill one of the most important 
functions of government. As my colleagues and I engage in our personal 
discussions about how to make Congress more functional, I hope this is 
an experience we will remember.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.

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