The Commander in Chief at the Lowest Ebb – Framing the Problem, Doctrine, and Original Understanding

[Jefferson23]

Nomination to First Circuit: David J. Barron

On September 24, 2013, President Obama nominated Barron to serve as a United States Circuit Judge of the United States Court of Appeals for the First Circuit, to the seat vacated by Judge Michael Boudin, who took senior status on June 1, 2013. [5] On January 16, 2014 his nomination was reported out of committee and is now pending before the full U.S. Senate[6]


Barron is known for coauthoring (with Martin S. Lederman) a Harvard Law Review article titled "The Commander in Chief at the Lowest Ebb - Framing the Problem, Doctrine and Original Understanding," Harvard Law Review, Vol. 121, Pg. 689, January 2008, which was an attack of the advice given by the Office of Legal Counsel to President George W. Bush justifying Bush's use of executive power during the War on Terror.[7] http://en.wikipedia.org/wiki/David_Jeremiah_Barron


The Commander in Chief at the Lowest Ebb – Framing the Problem, Doctrine, and Original Understanding

Article by David J. Barron & Martin S. Lederman

Jan 1, 2008

121 Harv. L. Rev. 689

Over the past half-century, discussions of constitutional war powers have focused on the scope of the President’s “inherent” power as Commander in Chief to act in the absence of congressional authorization. In this Article, Professors Barron and Lederman argue that attention should now shift to the fundamental question of whether and when the President may exercise Article II war powers in contravention of congressional limitations, when the President’s authority as Commander in Chief is at its “lowest ebb.” Contrary to the traditional assumption that Congress has ceded the field to the President when it comes to war, the Commander in Chief often operates in a legal environment instinct with legislatively imposed limitations. In the present context, the Bush Administration has been faced with a number of statutes that clearly conflict with its preferred means of prosecuting military conflicts. The Administration’s response, based on an assertion of preclusive executive war powers, has been to claim the constitutional authority to disregard many of these congressional commands.

This Article is the first of a two-part effort to determine how the constitutional argument concerning such preclusive executive war powers is best conceived. Professors Barron and Lederman demonstrate that, notwithstanding recent attempts to yoke the defense of executive defiance in wartime to original understandings, there is surprisingly little historical evidence supporting the notion that the conduct of military campaigns is beyond legislative control. Thus stripped of its assumed roots in a supposedly longstanding tradition, and considered in light of the long pattern of executive acceptance of constraining statutes, the Administration’s recent assertion of preclusive war powers is revealed as a radical attempt to remake the constitutional law of war powers.

remainder: http://harvardlawreview.org/2008/01/the-commander-in-chief-at-the-lowest-ebb-ae-framing-the-problem-doctrine-and-original-understanding/

[Jefferson23]

1. Fate of Barron appeals court nomination unclear as White House offers drone memos

May 9, 2014

The fate of a federal appeals court nominee who helped establish the legal foundation for killing American citizens in drone strikes remains unclear even as the Obama administration granted access Thursday to memos he authored in hopes of salvaging his nomination.

Administration officials made available to senators memos written by David J. Barron, who has been nominated to serve on the U.S. Court of Appeals for the 1st Circuit. Barron worked in the Office of Legal Counsel at the Justice Department and helped write the legal justification for President Obama’s decision to order a 2011 drone strike that killed Anwar al-Awlaki, a U.S. citizen who had become a senior al-Qaeda operative in Yemen.

The memos were made available Thursday after senators in both parties had complained this week that the administration continues to cloak counterterrorism operations in secrecy despite vows by Obama to provide greater transparency.

"I hope and expect that all senators will review these materials," said Sen. Patrick J. Leahy (D-Vt.), who chairs the Judiciary Committee and supports Barron's nomination

in full: http://www.washingtonpost.com/blogs/post-politics/wp/2014/05/09/fate-of-david-barrons-appeals-court-nomination-unclear-as-white-house-offers-drone-memos/