Barron Nomination

Floor Speech

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 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.

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