吃瓜大本营

This was originally posted on .

Last year, after concluding that many passages in the document 鈥渘o longer merited secrecy,鈥� the Second Circuit published a redacted version of the Justice Department鈥檚 July 2010 Office of Legal Council memo that approved the 鈥渢argeted killing鈥� of Anwar al-Aulaqi. The court鈥檚 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鈥檚 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鈥檛 plausibly claim that the entirety of the July 2010 memo was still secret, and it couldn鈥檛 lawfully withhold the entirety of the memo under the Freedom of Information Act.

From , the Second Circuit鈥檚 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鈥檚 ruling, one of those memos 鈥� arguably the most important one 鈥� was made public. From another perspective, the court鈥檚 ruling wasn鈥檛 very significant at all. The ruling didn鈥檛 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鈥檚 legal analysis.

But one should never underestimate the government鈥檚 willingness to deny the undeniable 鈥� 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鈥檚 publication of the July 2010 OLC memo (which the government calls the 鈥淥LC-DOD Memorandum鈥�):

The first two sentences of this footnote are a belated attempt to preserve the government鈥檚 ability to challenge the court鈥檚 conclusion that portions of the July 2010 memo had been officially acknowledged. I say 鈥渂elated鈥� both because the government didn鈥檛 petition for certiorari when it could have and because the memo has already been published.

But it鈥檚 the last sentence of the footnote that is truly remarkable 鈥� 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鈥檚 contents, and after the government declined to file a petition for certiorari to the Supreme Court. But so what?, the government says. We don鈥檛 consider the Second Circuit鈥檚 publication of the memo to have been an official disclosure. As far as we鈥檙e concerned, the government says, the memo is still secret.

I鈥檝e written about the implications of this kind of official secrecy. I鈥檓 not sure what else to say about it, except that the government鈥檚 footnote calls to mind Karl Rove鈥檚 infamous remark to Ron Suskind about the construction of 鈥渞eality鈥�:

We鈥檙e an empire now, and when we act, we create our own reality. And while you鈥檙e studying that reality鈥攋udiciously, as you will鈥攚e鈥檒l act again, creating other new realities, which you can study too, and that鈥檚 how things will sort out.

Rove鈥檚 targets at the time were journalists and doves 鈥� members of what he called 鈥渢he reality-based community鈥� 鈥� but Rove鈥檚 use of the word 鈥渏udiciously鈥� perhaps suggests that his statement has broader application. In the empire, he seems to be saying, the executive creates reality. The rest of us 鈥� judges included 鈥� can only study it.