Barron Nomination

Floor Speech

Mr. WHITEHOUSE. There has been considerable discussion on the floor about the nominee to the First Circuit, David Barron, that has hinged around his tenure in the Office of Legal Counsel and an opinion he wrote specifying the outer bounds of Presidential authority in the area of defending our national security against Americans who have signed up with organizations that do us harm. I wish briefly to bring to the attention of this Chamber that it is not the only issue with respect to David Barron and the Office of Legal Counsel.

The Office of Legal Counsel has indeed had a scandal, and it is indeed related to David Barron, but it is related to David Barron in the best possible way, in that he is the one who cleaned up the scandal. The scandal in question--the Presiding Officer is a former attorney general of her State and she will understand this very clearly--the scandal in question related to the shabby opinions that were written by the Office of Legal Counsel to justify the torture program that was run by the Bush administration. When I say shabby, these were awful opinions. They were hidden from most peer scrutiny because they would not have stood up to peer scrutiny. They made errors as basic as failing to cite Fifth Circuit Court of Appeals decisions right on point.

There actually had been an incident in which the Department of Justice, where the Office of Legal Counsel is located, prosecuted a Texas sheriff for waterboarding victims in order to get confessions out of them. He was prosecuted as a criminal. He was convicted. The case went to the Fifth Circuit on appeal and in the course of their written decision on appeal, the Fifth Circuit Court of Appeals of the United States--one row below the U.S. Supreme Court--described the technique of water torture that was used, the waterboarding, and on a dozen separate occasions used the word ``torture'' to describe what was being done.

Look for that case in the Office of Legal Counsel. Look for that case in the opinion of Office of Legal Counsel about whether torture is accomplished by waterboarding, whether waterboarding is torture. It is not there. They didn't even cite the case. It was a case they could have found in their own files because the Department of Justice was the organization that had prosecuted this sheriff as a criminal for that act.

If you wanted to bring it up as a case and try to find a way to distinguish it, I could accept that. I probably would disagree with that analysis, but the failure to even cite the case, knowing how difficult it would be for the torture program to go forward, I think is a sign of either the worst kind of incompetence or a deliberate fix being put into the opinion of the Office of Legal Counsel.

Having served as a U.S. attorney as well, I think the Department of Justice should have the best lawyers in the country, and within the Department of Justice the OLC prides itself on being the best of the best. It was a disgraceful departure of that standard when the torture opinions were allowed to pass. They simply don't meet any reasonable test of adequacy. So on April 15, 2009, the Department of Justice withdrew the Office of Legal Counsel's CIA interrogation opinions. The memorandum for the Attorney General effecting that withdrawal was signed by none other than David Barron. This was the instance of a man who absolutely did the right thing. He helped clean up a terrible mess that had been left at the Department of Justice. We should be proud of the conduct of David Barron at the Office of Legal Counsel.

I ask unanimous consent that the 1-page memorandum for the Attorney General signed by David Barron be printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

Withdrawal of Office of Legal Counsel CIA Interrogation Opinions

Four previous opinions of the Office of Legal Counsel concerning interrogations by the Central Intelligence Agency are withdrawn and no longer represent the views of the Office.

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