March 15, 2013
A federal appeals court has ruled the CIA cannot continue to deny in court that it has no "intelligence interest" in drones strikes carried out by the United States government. The appeals court’s ruling reversed a lower court decision, which found the CIA did not have to acknowledge it had any records on drone strikes.
The ruling by the United States District Court of Appeals for the District of Columbia came in a lawsuit by the American Civil Liberties Union (ACLU) to force the release of government records on the use of drones for targeted killings. The ACLU filed a Freedom of Information Act (FOIA) request for records in January 2010. The CIA issued a Glomar response, which means they refused to confirm or deny that the agency had any records. A district court affirmed the response and granted summary judgment in September 2011. The ACLU submitted an appeal in March 2012.
Judge Merrick B. Garland wrote in the decision the question before the court was whether it was "logical or plausible" for the "CIA to contend that it would reveal something not already officially acknowledged to say that the Agency 'at least has an intelligence interest’ in" drone strikes.
"Given the extent of the official statements on the subject, we conclude that the answer to that question is no."
A statement by President Barack Obama, made during a Google+ Hangout in January 2012, statements from then-counterterrorism adviser John Brennan during a speech at the Woodrow Wilson Center on April 30, 2012, and remarks made by then-CIA director Leon Panetta at the Pacific Council on International Policy in 2009 were all cited as "official acknowledgments that the United States has participated in drone strikes." The acknowledgments made it implausible and illogical for the CIA to maintain "that it would reveal anything not already in the public domain to say that the Agency 'at least has an intelligence interest’ in such strikes."
"The defendant is, after all, the Central Intelligence Agency," wrote Garland.
As the judge noted, Obama has "publicly acknowledged that the United States uses drone strikes against al Qaeda." Brennan made statements that left no doubt that "some agency" operates drones. "It strains credulity to suggest that an agency charged with gathering intelligence affecting the national security does not have an 'intelligence interest’ in drone strikes, even if that agency does not operate the drones itself."
Highlighted explicitly in the ruling was an answer Panetta gave to a question about "remote drone strikes" in the tribal regions of Pakistan.
[O]bviously because these are covert and secret operations I can’t go into particulars. I think it does suffice to say that these operations have been very effective because they have been very precise in terms of the targeting and it involved a minimum of collateral damage. . . . I can assure you that in terms of that particular area, it is very precise and it is very limited in terms of collateral damage and, very frankly, it’s the only game in town in terms of confronting and trying to disrupt the al-Qaeda leadership.
Displaying the proper contempt for the CIA’s argument in this lawsuit, Garland stated, "It is hard to see how the CIA Director could have made his Agency’s knowledge of — and therefore "interest" in – drone strikes any clearer. And given these statements by the Director, the President, and the President’s counterterrorism advisor, the Agency’s declaration that 'no authorized CIA or Executive Branch official has disclosed whether or not the CIA . . . has an interest in drone strikes’ is at this point neither logical nor plausible."
The ACLU’s lawsuit sought access to categories of documents involving drone strikes that other agencies, like those in the Armed Forces, might have had. Because the CIA believed this might reveal the CIA’s "interest" in drone strikes or whether it had documents on drone strikes, the CIA prevented requests for any and all records.
Furthermore, to whether the CIA has documents or not, the judge stated, "It beggars belief that it does not also have documents relating to the subject."
In the above-quoted excerpt from the CIA Director’s Pacific Council remarks, the Director spoke directly about the precision of targeted drone strikes, the level of collateral damage they cause, and their usefulness in comparison to other weapons and tactics. Given those statements, it is implausible that the CIA does not possess a single document on the subject of drone strikes. Unless we are to believe that the Director was able to "assure" his audience that drone strikes are "very precise and . . . very limited in terms of collateral damage" without having examined a single document in his agency’s possession, those statements are tantamount to an acknowledgment that the CIA has documents on the subject. In short, although the President and Messrs. Brennan and Panetta did not say that the CIA possesses responsive documents, what they did say makes it neither "logical" nor "plausible" to maintain that the Agency does not have any documents relating to drones. [emphasis added]
The ACLU’s Jameel Jaffer, who argued the case, reacted, "This is an important victory. It requires the government to retire the absurd claim that the CIA’s interest in the targeted killing program is a secret, and it will make it more difficult for the government to deflect questions about the program’s scope and legal basis. It also means that the CIA will have to explain what records it is withholding, and on what grounds it is withholding them."
For years, government officials from the Obama administration and from outside the administration, who possess knowledge of the CIA’s drone program, have made drone claims on the record or anonymously. They have made selective disclosures that function as propaganda because they have typically aimed to explain and justify targeted killing operations. Or, the statements have served the purpose of showing the Obama administration understands the power being wielded and measures are being taken to establish "rules" and there is no reason to worry about power being abused.
A most recent example of this was a New York Times story presenting a kind of official government account of the decision-making process that led to the targeting and killing of US citizen Anwar al-Awlaki, who the administration now claims was a "senior operator" in Al Qaeda. He was killed by a CIA drone without charge or trial. He was placed on a "kill list" before he was assassinated.
The ACLU and Center for Constitutional Rights put out a response to this story, "In anonymous assertions to The New York Times, current and former Obama administration officials seek to justify the killings of three U.S. citizens even as the administration fights hard to prevent any transparency or accountability for those killings in court. This is the latest in a series of one-sided, selective disclosures that prevent meaningful public debate and legal or even political accountability for the government’s killing program, including its use against citizens."
At the end of Sunshine Week—just after President Barack Obama’s crooked jest that he is not Dick Cheney so his administration’s secrecy on drones is acceptable—finally, there is a court decision that checks the power of an agency clearly abusing its secrecy powers. Finally, a bit of sanity in defense of freedom of information from a few appeals court judges.