CIA must acknowledge records of drone strike program, appellate court rules

The CIA cannot refuse to search for records about U.S. drone strikes on the grounds that acknowledging the existence of the records would harm national security, the U.S. Court of Appeals for Washington, D.C. ruled.

The three-judge appellate panel pointed out that it is not logical to keep the existence — or nonexistence — of records on drone strikes secret because government officials have publicly discussed a U.S. drone program, effectively acknowledging that records do exist and waiving the agency’s right to claim exemptions under the Freedom of Information Act.

In 2010, the ACLU filed a FOIA request to learn about the policies that govern how the U.S. uses drones to conduct targeted killings overseas. The federal departments of defense, justice and state released some records, but the CIA issued a Glomar response — an agency's refusal to confirm or deny the existence of records responsive to a FOIA request. The ACLU then sued the CIA for the records.

The ACLU pointed out in court documents that President Obama, former counterterrorism advisor John Brennan (now CIA director) and former CIA Director Leon Panetta all made public statements about a U.S. drone strike 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," the judges' opinion, released Friday, stated.

Eight social justice and First Amendment organizations also filed a friend-of-the-court brief in support of the ACLU.

“There have been so many concerns raised about the targeted killing program’s lawfulness—whether the U.S. Constitution allows this, debates about what international laws say, questions about what kind of substantive or procedural safeguards exist, whether there are accountability measures in place,” said Ranjana Natarajan, the brief's author, in an interview. “This is an effort to gain more public knowledge about what is really going on.”

The case will head back to the district court, which will determine how much information the CIA will have to release, said ACLU attorney Arthur Spitzer in an interview. The agency will probably release documents related to the public speeches but not much else, he said.

“While I think this is a significant victory, it’s too soon to tell what the real result will be,” Spitzer said. “Will we ever actually get any documents beyond what is public or not? That remains subject to years of litigation.”

Related Reporters Committee resources:

· Federal FOIA Appeals Guide: D. Glomar Response