A friend-of-the-court brief supporting a Freedom of Information Act (FOIA) lawsuit was filed last week to help the American Civil Liberties Union (ACLU) force the Central Intelligence Agency (CIA) to release records on the agency’s drone program. The organizations’ brief argued that much information had been disclosed on the program already so there was no justification for refusing to acknowledge that records on the program exist.
The organizations call attention to the fact that President Barack Obama and former CIA Director Leon Panetta have both “officially acknowledged the targeted killing program.” Unnamed officials have also revealed important details, including the “geographic scope and target selection process.” Attorney General Eric Holder has defended the “legal rationale” for the program. That so much has been revealed “calls into grave doubt the CIA’s claim that national security harms will result from the CIA merely acknowledging” it has records on the program.
The organizations that signed on to the brief include the Bureau of Investigative Journalism, Campaign for Innocent Victims in Conflict (CIVIC), Center for Constitutional Rights, Center on National Security at Fordham Law School, The Constitution Project, First Amendment Coalition, Human Rights Watch, International Commission of Jurists and National Security Archive. [The Bureau of Investigative Journalism' fine work on the covert drone war waged by the United States is cited in the brief.]
As the ACLU describes in its post on the brief, the organizations’ interests don’t typically line up but in this case this “broad spectrum” of organizations found it important to push the court to reject the CIA’s position.
That the public has a “significant and pressing interest in information” on the CIA’s drone program is outlined:
A national debate on targeted killing is ongoing. Speculation and reporting about the program have spawned a fierce debate among ordinary citizens, legislators, media, scholars, and government officials. At the heart of the debate are questions relating to Executive powers during wartime. One important aspect of the debate is whether and to what extent the CIA, an intelligence agency that functions in secret with far less public and Congressional oversight than the armed forces, should be conducting operations using lethal force.
The targeted killing program’s lawfulness is also under debate, and the Attorney General’s recent remarks on the program’s legal basis have not quelled the controversy. First, disagreements have arisen about whether and when the U.S. Constitution and laws authorize the President to target individuals for killing without any judicial process. Second, disagreements have arisen as to whether and under what circumstances international humanitarian law and human rights laws allow the targeted killing of alleged terrorists. Finally, the debate also concerns the criteria for targeting and killing individuals, including U.S. citizens, the existence of substantive or procedural safeguards to ensure accuracy and legitimacy of killings, and the existence of accountability mechanisms
Perhaps, the most compelling aspect of this filing is how it clearly identifies what is public now.
When it comes to geography, the brief notes Washington Post journalists Dana Priest and William M. Arkin have both reported the targeted killing program operates in Pakistan, Yemen and Somalia. Unnamed government sources have described the CIA’s program in Yemen. Journalists have reported the US Ambassador to Pakistan Cameron Munter once cited diplomatic concerns and asked Panetta, when he was CIA director, to “stop an imminent drone strike in Pakistan.” Panetta refused.
Unnamed government officials have described how targets in Pakistan are selected to journalists like the Washington Post‘s Greg Miller. Officials have described “kill lists” to Priest and Arkin and noted the CIA maintains such a list. Two types of strikes, “personality” and “signature,” have both been described to journalists. [From the brief: "personality strikes" target specific individuals on the "kill list." "Signature strikes" target unknown groups of suspects based on behavior observed through surveillance. "Signature strikes" are controversial because the identities of targets are not always known.]
The New York Times‘ Scott Shane has published a story on the “procedures and technologies used to select targets and conduct strikes.” That the CIA “gives the final go-ahead for a strike, though the US Ambassador is informed in advance and member of Congress are informed afterward” has been disclosed too.
Estimates on the number of “militants” killed in such strikes has been shared with the press. That “high-value targets” and “lower-level militants” are targeted has been shared. Government officials are normally confident the people killed are “terrorists” and they have publicly acknowledged the victims, as Obama did when cleric and US citizen Anwar Al-Awlaki was killed. And, post-strike analyses have been covered in media too, indicating the CIA uses “drone surveillance and other intelligence-gathering capabilities” after strikes.
The ACLU and these nine organizations warn what is at stake. The definition of “due process” is being rewritten by the Justice Department in the same insidious way that the Bush Administration worked to rewrite the definition of “torture.”
A wholesale reinterpretation of international and domestic law that allows for the sanctioning of murder is being advanced. As former Guantanamo chief prosecutor Morris Davis put it on Al Jazeera English‘s “Inside Story”:
I think what we are sanctioning here is murder. We’re sending drones overseas. The president has no authority in Yemen. I mean, the president’s authority extends to the US its territories and its possessions. But to authorise a civilian agency, the CIA, to go to Yemen with drones, fire a missile and kill American citizens is just breathtaking, I think, to a lot of us.
Yet Americans are expected to take anonymous officials’ word for it when they speak about the drone program and not question the claims? Yet they are to accept that this is all the information that will be provided?
Glenn Greenwald of Salon appropriately skewers this government secrecy:
This would be laughable if it were not so destructive. It results in the government’s most consequential actions being completely shielded not only from public scrutiny, but also from the rule of law. It enables the most powerful political officials to inculcate the public with claims about their actions while preventing any form of checks and suppressing any contrary information. It literally means that the Obama administration is able to conduct multiple secret wars around the world, ones conducted by drone attacks, the very existence of which they refuse to acknowledge. And it is yet another way the Obama presidency is cementing the worst abuses of the Bush presidency: the very same ones he so inspirationally vowed to reverse.
One additional note: prior to the filing by these organizations, I wrote about the ACLU lawsuit. The National Security Archive pointed out that Holder had been careful to not mention Al-Awlaki because then it would not be possible to use a Glomar defense and neither confirm nor deny the existence of records to prevent the release of any Office of Legal Counsel memos on the program.
These is the kind of games the government is playing. And as more and more drone strikes are mounted that kill terror suspects, militants or innocent civilians, it is harder and harder to justify what Greenwald properly terms “secrecy games.”