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DC Circuit Hears Oral Args on Obama Drone Strike Records

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By Jonathan R. Tung, Esq. on February 22, 2016 1:10 PM

Does a drone strike qualify as intelligence? Oral arguments that strike at the very heart of this question began recently and are sure to leave DC Circuit Judge David Tatel's head spinning.

This is the latest chapter in the ACLU's attempt to pry open the CIA's files and lists on overseas drone-killings and the definition of "intelligence" could be the make-or-breaker.

ACLU Against "Most Effective Killing Machine"

It's been a little over five years since Anwar al-Awlaki was killed by means of overhead drone. The ACLU immediately started its campaign against the Obama drone-strike program, creating judicial and courtroom havoc as it attempts to find and pry open any and all files relating to when and how aerial drone strikes have been authorized. Also sought is information about who was targeted and who has died (including "collateral damage") as a result of these strikes. This entire debate heats up red hot after it was opined by general Michael Hayden that the CIA has recently become "the most effective killing machine in the history of armed conflict."

There's Intelligence, and Then There's "Intelligence"

It would be jejune to beleive that FOIA is carte blanche to throw all highly top secret files out into the open for public viewing. The ACLU had an ally in CUNY Law School and came up short. Because of this strategic concern, "intelligence" is a hotly debated topic with conservatives angling for the view that drone strikes either should be exempt from public view, or that strikes are de-facto forms of intelligence. In either case, the usual justification for non-cooperation is "national security."

Jameel Jaffer, deputy director of the ACLU, tends to see the recalcitrance by the CIA as having less to do with military intelligence and more to do with a government attempt to conceal information about sources and methods of drone strikes.

Summary Strike Data

Specifically, the ACLU is after what is known as "summary strike data": a list that would ID targets, the number of people killed, dates, and other potentially sensitive information. When it was first requested to give these records up, the CIA answered that they could neither confirm or deny the existence of such records.

The DC Circuit rejected the CIA's position as pretty much unbelievable. When the case returned to the district court, the ACLU lost against when that judge sided with the CIA. It's been a tough going for the ACLU all around.

This could be all about semantics, and just the simple shifting of a few words here or there could tip the scales in one direction or the other. And that is what is so potentially frustrating for Judge Tatel. The position of the ACLU, at this point is clear: what's the secrecy? People know that people are getting killed that were deaths that were not intended targets.

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