This was originally posted on Just Security.
Last year, after concluding that many passages in the document “no longer merited secrecy,” the Second Circuit published a redacted version of the Justice Department’s July 2010 Office of Legal Council memo that approved the “targeted killing” of Anwar al-Aulaqi. The court’s view was that government officials had already disclosed much of the information they were trying to withhold. In speeches, media interviews, and congressional testimony, officials had acknowledged the government’s role in the strike that killed al-Aulaqi, explained the purported legal basis for the strike, and invoked still-secret OLC memos to reassure the public that the strike was lawful. Having done all of this, the court said, the government couldn’t plausibly claim that the entirety of the July 2010 memo was still secret, and it couldn’t lawfully withhold the entirety of the memo under the Freedom of Information Act.
From one perspective, the Second Circuit’s ruling was a victory for transparency. Human rights groups and media organizations had been calling for the release of the legal memos underlying the targeted-killing program; thanks to the Second Circuit’s ruling, one of those memos — arguably the most important one — was made public. From another perspective, the court’s ruling wasn’t very significant at all. The ruling didn’t expose secrets. By its own terms, it exposed facts and legal analysis that had already been disclosed.
Whatever perspective one adopted, though, one thing seemed undeniable: The publication of the memo constituted an official disclosure of the government’s legal analysis.
But one should never underestimate the government’s willingness to deny the undeniable — a lesson I probably should have learned by now. Last week, the government filed a brief asking the Second Circuit to allow it to withhold other OLC memos relating to the targeted-killing program. In a footnote, the government provides this take on the court’s publication of the July 2010 OLC memo (which the government calls the “OLC-DOD Memorandum”):
The first two sentences of this footnote are a belated attempt to preserve the government’s ability to challenge the court’s conclusion that portions of the July 2010 memo had been officially acknowledged. I say “belated” both because the government didn’t petition for certiorari when it could have and because the memo has already been published.
But it’s the last sentence of the footnote that is truly remarkable — unreal, one might even say. Sure, the government says, the Second Circuit published the July 2010 memo, and sure, it published the memo after having concluded that the government had officially acknowledged the memo’s contents, and after the government declined to file a petition for certiorari to the Supreme Court. But so what?, the government says. We don’t consider the Second Circuit’s publication of the memo to have been an official disclosure. As far as we’re concerned, the government says, the memo is still secret.
I’ve written elsewhere about the implications of this kind of official secrecy. I’m not sure what else to say about it, except that the government’s footnote calls to mind Karl Rove’s infamous remark to Ron Suskind about the construction of “reality”:
We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality—judiciously, as you will—we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out.
Rove’s targets at the time were journalists and doves — members of what he called “the reality-based community” — but Rove’s use of the word “judiciously” perhaps suggests that his statement has broader application. In the empire, he seems to be saying, the executive creates reality. The rest of us — judges included — can only study it.