The D.C. Circuit Court of Appeals ruled last week that the Obama administration can’t brag about using drones to kill terrorists overseas, but clam up about drone program documents at the drop of a FOIA request, NPR reports.
The appellate court phrased its opinion in less direct and more eloquent terms, so let’s turn to its reasoning.
The central legal issue in the case is whether government officials — including President Obama and former CIA Director and then-Defense Secretary Leon Panetta — officially and publicly acknowledged the existence of the CIA’s use of drone airstrikes.
In 2011, a district court judge dismissed an ACLU lawsuit seeking records about the use of drones after the Central Intelligence Agency (CIA) claimed that it couldn't "confirm or deny" whether it has information about the government's use of drones to carry out targeted killings. But the ACLU pressed forward with its appeal, insisting that the CIA couldn't hide behind a Glomar response because the agency waived its right to claim an exemption when it officially acknowledged otherwise exempt information through prior disclosure.
Friday, a D.C. Circuit panel held, "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."
In its opinion, the appellate panel offered a series of examples in which government officials or the president himself acknowledged the use of drones in targeted killings overseas. While mere acknowledgments cannot be equated with documentation -- remember, this whole case boils down to a FOIA document request -- the panel thought it was crazy to believe that the CIA didn't have documents about the program. Thus the Glomar response was improper. The court noted:
[CIA Director Panetta] 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.
- American Civil Liberties Union v. CIA (D.C. Circuit Court of Appeals)
- D.C. Circuit Hears CIA Drone Information Challenge (FindLaw's D.C. Circuit Blog)
- The Drones Are Coming! But Not to Charlottesville? (FindLaw's Technologist)