Drone documents case: federal appeals court rules against CIA

A federal appeals court on Friday ordered the Central Intelligence Agency to respond to a Freedom of Information Act request seeking documents related to the use of drone aircraft in targeted killings overseas.

The CIA had initially responded to the Jan. 2010 FOIA request by stating that it would neither confirm not deny the existence of any documents at the agency related to the secret program.

A federal judge accepted the argument and dismissed the FOIA request in Sept. 2011.

The American Civil Liberties Union, which filed the request, appealed.

The appeals court decision sends the case back to federal court where the CIA will be required to present a list of documents potentially relevant to the ACLU’s request. 

The decision doesn’t mean the ACLU will necessarily gain access to any or all documents.

But the decision is significant in a broader way.

“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,” ACLU Deputy Legal Director Jameel Jaffer said, in statement.

“It also means that the CIA will have to explain what records it is withholding, and on what grounds it is withholding them,” Mr. Jaffer said.

The ACLU request for information was made in an effort to shed light on America’s lethal drone program. The lawyers want the agency to reveal when and where drones are being used, and who is being targeted.

They are also seeking information about how the government is guaranteeing compliance with international law against extrajudicial killings.

In its decision on Friday, the three-judge panel of the US Court of Appeals for the District of Columbia Circuit rejected the CIA’s argument that it was under no obligation to reveal the existence of drone-related documents at the agency.

Government lawyers had said that since no CIA or executive branch official had disclosed whether the CIA “has an interest in drone strikes,” there was no basis for the agency to respond in any way to the FOIA request. The agency maintained that any response – either confirming or denying – would reveal sensitive information.

Writing for the panel, Chief Judge Merrick Garland dismissed the CIA’s position as “neither logical nor plausible.”

He noted that President Obama, then-counter terrorism adviser John Brennan, and then-CIA Director Leon Panetta had all given public statements acknowledging the drone program.

“Given these official acknowledgments that the United States has participated in drone strikes, it is neither logical nor plausible 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,” Judge Garland wrote.

“The defendant is, after all, the Central Intelligence Agency. And 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,” the judge said.

Officials at the ACLU praised the decision.

“We hope that this ruling will encourage the Obama administration to fundamentally reconsider the secrecy surrounding the targeted killing program,” Jaffer said. “The program has already been responsible for the deaths of more than 4,000 people in an unknown number of countries. The public surely has a right to know who the government is killing, and why, and in which countries, and on whose orders,” he said.

“The Obama administration, which has repeatedly acknowledged the importance of government transparency, should give the public the information it needs in order to fully evaluate the wisdom and lawfulness of the government’s policies,” Jaffer said.