DOJ Asserts Its Desire To Live In A Fantasy World Where Publicly-Disclosed Documents Haven’t Been Publicly Disclosed

The DOJ’s Office of Legal Counsel (OLC) is still trying to keep its memos related to extrajudicial drone killings a secret. The push for secrecy isn’t surprising. The surprising part is how much the DOJ continues to fight this lost battle.

Quick recap: the New York Times and ACLU sued the DOJ in an FOIA suit for the release of the OLC’s drone-killing memo. The DOJ, of course, maintained it needed to be kept secret for national security reasons and because it was “legal advice,” something lying outside the confines of the FOIA law.

The district court saw things differently, mainly because the government — through officials named and unnamed — had openly discussed the contents of this memo several times. The government had also confirmed drone targets, drone operation areas and engaged in what the court referred to as “an extensive public relations campaign” to convince the public of the “rightness” of its killer drone program.

So, the court ordered the release of the memo. And then ordered the release of other, similar memos. The DOJ obviously wasn’t happy with this decision, but its officials’ decision to talk up the legality of drone killing over a period of several years undercut its arguments that the memos were too “secret” to be publicly disclosed.

But the DOJ won’t stop trying to reclaim the secrecy it gave away so frequently. Jameel Jaffer at Just Security noticed a particularly disingenuous bit of barn door-shutting being performed by the agency in its brief to the Second Circuit Court. [pdf]

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”):

For purposes of preserving its argument for potential further review, the government respectfully notes its disagreement with this Court’s prior ruling that the government has officially disclosed and waived privilege for certain legal analysis contained in the OLC-DOD Memorandum. As set forth in the government’s briefs in the earlier appeal, the public disclosures and statements relied on by the plaintiffs did not meet the standard for official disclosure or waiver of applicable privileges. We further note that the Court’ s release of the OLC-DOD Memorandum and its order compelling disclosure by the government of additional information would not themselves constitute an independent official disclosure or waiver by the government that would strip protection from otherwise exempt information and material.

As Jaffer notes, the first two sentences have arrived too late to serve any purpose for the DOJ. It had a chance to petition the Supreme Court on this ordered disclosure, but that window open and closed without the DOJ taking any action. The last sentence, however, is where the DOJ heads right off the rails — at least in terms of logic or credibility.

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.

Yes. The government is arguing that even though documents have been disclosed thanks to a court order, they haven’t been disclosed because the DOJ didn’t want them disclosed. That’s the argument. Because the DOJ decide to do it itself, it may as well have never happened. Those requesting copies of this document in the future will be denied, even though the document has already been made public.

When government agencies fight for secrecy, logic is immediately sent to the front line of the battlefield to die a swift and brutal death. We’ve seen this sort of behavior far too frequently, whether it’s the government ordering employees not to view leaked documents because they’re somehow still “secret” or agencies withholding/redacting documents that have already been made public. Over-classification and default secrecy has brought the US government into the realm of surrealism… or at least, more so.

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