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But that’s not what the government told the Second Circuit, and it’s not what the Second Circuit has now suggested is the law. Second, the Second Circuit’s new opinion endorses the continued official secrecy over any discussion of a document that has supplied a purported legal basis for the targeted killing program since almost immediately after the September 11 attacks. The document — a September 17, 2001 “Memorandum of Notification” — is not much of a secret. The government publicly identified it in litigation with the ACLU eight years ago; the Senate Intelligence Committee cited it numerous times in its recent torture report; and the press frequently makes reference to it. Not only that, but the Central Intelligence Agency’s former top lawyer, John Rizzo, freely discussed it in his recent memoir. According to Rizzo, the September 17 MON is “the most comprehensive, most ambitious, most aggressive, and most risky” legal authorization of the last decade and a half — which is saying something. Rizzo explains that the MON authorizes targeted killings of suspected terrorists by the CIA, and in his new book, Power Wars, Charlie Savage reports that the MON is the original source of the controversial (and legally novel) “continuing and imminent threat” standard the government uses to govern the lethal targeting of individuals outside of recognized battlefields. The MON is also likely to have authorized an end run around the assassination “ban” in Executive Order 12333 — a legal maneuver that is discussed in, but almost entirely redacted from, an earlier OLC analysis of targeted killing.

In yesterday’s opinion, the Second Circuit upheld the government’s withholding of a 2002 OLC memorandum that “concerns Executive Order 12333,” which almost certainly analyzes the effect of the September 17 MON, as well as of five other memoranda that “discuss another document that remains entitled to protection.” If indeed that “document” is the MON, it would seem to be yet another case of what the DC Circuit pointedly criticized, in a 2013 opinion, as the granting of judicial “imprimatur to a fiction of deniability that no reasonable person would regard as plausible.” In that case, the DC Circuit went on to quote Justice Frankfurter: “‘There comes a point where … Court[s] should not be ignorant as judges of what [they] know as men’ and women.” Last year, the Second Circuit took that admonishment to heart when it published the July 2010 OLC memorandum. Unfortunately, yesterday, rather than once again opening the country’s eyes to the law our government is applying behind closed doors, the Second Circuit closed its own.