Read time: 2 minutes

David Barron Should Not Get A Lifetime Appointment Without Further Disclosure

Some questions for David Barron.

The other day I noted that President Obama had nominated David Barron to a lifetime appointment on the First Circuit even while his government was stonewalling the release under FOIA of Barron’s OLC memo authorizing the due process-free execution of an American citizen.

While I presume Patrick Leahy will rush Barron’s confirmation through the Senate Judiciary Committee anyway, he shouldn’t, not until Americans have a better sense of Barron’s fairly outrageous claims (including, that courts couldn’t review such executions) in that memo.

Here’s another thing Leahy should insist we see before Barron gets to be a Circuit Judge.

If the N.S.A. does not immediately use the phone and e-mail logging data of an American, it can be stored for later use, at least under certain circumstances, according to several documents.

One 2011 memo, for example, said that after a court ruling narrowed the scope of the agency’s collection, the data in question was “being buffered for possible ingest” later. A year earlier, an internal briefing paper from the N.S.A. Office of Legal Counsel showed that the agency was allowed to collect and retain raw traffic, which includes both metadata and content, about “U.S. persons” for up to five years online and for an additional 10 years offline for “historical searches.”

Now, Barron left during the summer of 2010, so it’s not at all clear he wrote the OLC briefing paper (which presumably means “memo that is called something else to make it harder to FOIA”) authorizing retention of US person data, including content (presumably collected off the switches, but who knows?), for up to 15 years.

And it may well be that this is not as outrageous as an argument as those deployed to authorize the Anwar al-Awlaki killing. Perhaps this mem — um, briefing paper — doesn’t address the legality of the underlying collection at all and only addresses reasonable(!) retention policies under the Privacy Act or some other statute. Probably this memo invests the same blind faith in minimization — the argument that collecting and holding US person data is no big deal so long as there are procedures purportedly limiting the distribution of it, even if those procedures allow the Intelligence Community to operate with great discretion in secret –as the rest of NSA’s programs do.

So I’m not asserting that I know this mem– um, briefing paper — is problematic. I’m suggesting it may be.

I’m suggesting that we ought to know whether David Barron has green-lighted pretty broad abuses of US person privacy before he takes up an appellate position for the rest of his life.

Can you help us out?

For 16 years we have been exposing Washington lies and untangling media deceit. We work 7 days a week, 16 hours a day for our labor of love, but with rising hosting and associated costs, we need your help! Could you donate $21 for 2021? Please consider a one-time or recurring donation of whatever amount you can spare, or consider subscribing for an ad-free experience. It will be greatly appreciated and help us continue our mission of exposing the real FAKE NEWS!

More C&L Coverage


New Commenting System

Our comments are now powered by Insticator. In order to comment you will need to create an Insticator account. The process is quick and simple. Please note that the ability to comment with a C&L site account is no longer available.

We welcome relevant, respectful comments. Any comments that are sexist or in any other way deemed hateful by our staff will be deleted and constitute grounds for a ban from posting on the site. Please refer to our Terms of Service (revised 3/17/2016) for information on our posting policy.

Please Do Not Use the Login Link at the Top of the Site.

In order to comment you must use an Insticator account. To register an account, enter your comment and click the post button. A dialog will then appear allowing you create your account.

We will be retiring our Crooks and Liars user account system in January, 2021.

Thank you.
C&L Team