The Government Says the Memo’s Reader List Is Too Hard to Make

The Trump administration says it cannot comply with a judge’s order to name everyone who has seen a legal memo tied to fatal boat attacks in the Caribbean. The dispute is not over whether the memo exists. It is over whether the government must show the court how it moved through the executive branch before the judge decides what can stay secret.

That may sound like a narrow request. It is not. When the government relies on a secret legal view to defend deadly force, the path that view took can help a court judge how closely it was held and how it was used.

U.S. District Judge Paul Engelmayer ordered the government to give him the Office of Legal Counsel memo for private review. He also asked for details about who had access to it, when they saw it, and why. The order followed his September ruling, which rejected two of the administration’s claims for keeping the memo secret. He has not yet decided whether the public should see the memo.

The Justice Department is asking Engelmayer to reconsider the part about the names. In a 15-page filing, it says the order rests on a mistaken view of presidential communications privilege. The administration argues that sharing a document among officials for government work does not by itself give up that privilege. It also says that tracking every person who saw the memo is not workable.

That is the administration’s claim, not a finding by the court. The judge has not yet ruled on the request to reconsider. Nor does the earlier order settle what the memo says, or whether any part of it will become public.

I understand why the administration would guard advice given to a president. Private counsel can matter to how an executive branch makes decisions. But the concern shifts when the government appears to rely on a legal memo as its explanation for lethal action, then argues that the court should not ask who has read it.

The judge’s request does not mean every name or every detail must be disclosed to the public. It asks the government to provide information to the court as part of a review. That difference matters. A judge can weigh a claim of secrecy only if the record gives the court something to assess.

The earlier ruling said the Department of Defense had treated the OLC memo as its effective law and policy for the strikes. Engelmayer rejected the administration’s arguments based on deliberative-process and attorney-client privilege, but he still had to consider whether presidential communications privilege could protect the document. The memo itself remains under seal.

The government’s new filing focuses on the list of people with access, rather than directly asking the judge to abandon his review of the memo. It says a broad accounting of readers is not relevant to its privilege claim and could weaken protections for presidential advice. The plaintiffs, the administration also says, did not ask for a list of every person who saw the document.

Those points deserve to be heard. The government should be able to explain why a court order is too broad or difficult to carry out. But when the underlying question concerns fatal attacks, “not workable” cannot be the last word. The court still has to decide whether the government has made a sound legal case for withholding the information.

The distinction between court review and public release can get lost in the argument. The judge is not yet ordering the government to publish the memo. He is asking for material that will help him decide whether the memo, or parts of it, may be withheld. That process can protect sensitive details without leaving the legal basis beyond review.

There is a human reason to care about this paper dispute. The attacks were fatal. People died. The public cannot judge the government’s account of its authority if that account is shielded from scrutiny at every stage. At the same time, a court must take seriously the government’s claim that some details could be sensitive. Neither point answers the legal question on its own.

What remains unknown is substantial. The public has not seen the memo. The judge has not ruled on the administration’s request to reconsider the reader-list order, and he has not decided what information can be released. The filing does not settle whether the privilege applies. It asks the court to accept a narrower path.

I would not treat this motion as proof that the government is hiding wrongdoing. That would go beyond what is known. But the request does test whether the court can examine a justification that the government has relied on while keeping key facts about its handling out of view.

The next step belongs to the judge. He can weigh the administration’s concern about presidential advice against the need for a reliable record. Until then, the public is left with a basic question of process: when lives are taken under a claimed legal authority, what must the government show a court before it can keep that authority secret?

Browse: Law