Flickr Photo by Llima

The American Civil Liberties Union (ACLU), which has been working to force the disclosure of documents on the Central Intelligence Agency’s (CIA) targeted killing program, filed a response to the government, which continues to claim it can neither confirm nor deny the existence of the CIA program. The organization also responded to the government’s contention that government officials have not acknowledged the program in any statements that are currently public.

Three main arguments are made in the reply brief submitted to the court: (1) the CIA’s Glomar response is unlawful because the existence of the CIA drone program has already been specifically and officially disclosed; (2) the court owes no deference to the government’s argument that it has not officially acknowledged the existence of the CIA program and (3) this court should construe the “official acknowledgement” exception in light of the Freedom of Information Act’s core purpose.

The ACLU finds the “Court should approach the CIA’s arguments” with “special skepticism, because the volume and consistency of media leaks relating to the CIA’s drone program strongly suggest that the government is relying on the Glomar doctrine in this Court while government officials at the same time, under cover of anonymity, disclose selected information about the program to the media.” They make clear that this is exactly the “kind of campaign of selective disclosure is precisely what FOIA was enacted to prevent.”

Noting that then-Congressman Donald Rumsfeld once said FOIA would “make it considerably more difficult for secrecy-minded bureaucrats to decide arbitrarily that the people should be denied access to information on the conduct of government or on how an individual government official is handling his job,” the ACLU provides a brief history of FOIA and adds:

For more than two years now, senior government officials have freely disclosed information about the CIA’s drone program, both on the record and off, while the CIA has insisted to this Court and others that the program cannot be discussed, or even acknowledged, without jeopardizing national security. One consequence is that the public’s understanding of the effectiveness, morality, and legality of the government’s bureaucratized killing program comes solely from the government’s own selective, self-serving, and unverifiable representations concerning it. This is not simply lamentable but dangerous, and, again, it is precisely what the FOIA was designed to prevent.

And the organization details the publication of a major feature story by the New York Times, which catapulted the Obama administration’s use of drones to kill “terror suspects” abroad into the national conversation last week:

Last week, the New York Times published perhaps the most detailed account yet of the CIA’s drone program, one that relied on interviews with “three dozen of [President Obama’s] current and former advisors.” On the basis of these three dozen interviews, the article discusses the munitions used by the CIA’s armed drones, the agency’s efforts to avoid civilian casualties from drone strikes, the agency’s method for calculating the number of civilians killed in any given strike, and the agency’s process for selecting targets in Pakistan. The article also provides many details about the CIA’s use of drones to kill Baitullah Mehsud, the leader of the Pakistani Taliban.

And the ACLU makes it clear that they do not necessarily have a problem with officials choosing to declassify information through “unauthorized or inadvertent disclosures.” What they do take issue with his how the CIA is being allowed to “deny the existence of the drone program” as it “carries on a propagandistic campaign of officially sanctioned leaks.”

The ACLU has been working for months to force the disclosure of this information so the public can have key questions about the US government’s use of drones answered. The Obama administration has chosen to cling to secrecy and instead engage in cheap attempts at transparency. Indeed, the ACLU wanted this information disclosed so answers on whether and when the U.S. Constitution and laws authorize the President to target individuals for killing without any judicial process, whether and under what circumstances international humanitarian law and human rights laws allow the targeted killing of alleged terrorists and the criteria for targeting and killing individuals, including U.S. citizens could be answered. They wanted to know if any substantive or procedural safeguards to ensure accuracy and legitimacy of killings exist and if there are any accountability mechanisms.

Rather than let organizations like the ACLU and the wider public use FOIA to get answers to these key questions, the administration has chosen to shrewdly tried to satisfy those critical of US drone operations and policy. They’ve propagandized the issue with their own statements that barely answer some of these questions. Just today the Obama administration propagandized the issue again.

ABC News’ Jake Tapper, one of the few reporters in the White House press corps who seems to not think the role of the press corps is to be lapdogs for presidential administrations, asked White House press secretary Jay Carney a series of questions on the Obama administration’s “kill list” that began with asking about the killing of Al Qaeda’s second in command, Abu Yahya al-Alibi.

TAPPER: It’s not difficult to foresee a world in which the United States is not the only country with this kind of technology. Is the administration at all concerned about the precedent being set in terms of secrecy, in terms of operating military craft in other sovereign nations and what we might see as a result when China or Russia get their hands on drones?

CARNEY: Again, I can’t discuss methods from here, and I do not — I won’t discuss –

TAPPER: I’m not asking you to –

CARNEY: Well, this is in relation, obviously, to the particular incident that we’ve been discussing, and I can’t get into details about al-Libi’s death, the circumstances or the location. You know, I would simply say that this president is firmly committed to carrying out his policy objectives in Afghanistan and in the Afghanistan-Pakistan region, which is to disrupt, dismantle and ultimately defeat al Qaeda. He is committed to disrupting, dismantling and ultimately defeating al Qaeda beyond that region too. That’s why we cooperate with countries around the world in efforts to counter al Qaeda and other extremists.

Carney reflexively dodged the question by saying something about how he can’t talk about national security techniques. That is because Tapper is trying to get Carney to say something that the administration did not prepare for a selective leak. Carney has nothing. All Carney has is an administration piece of propaganda about how the US remains committed to vanquishing all enemies of the United States that happen to be linked to al Qaeda. That is because far as a future where Russia and China have drones is concerned, the administration has no answer and essentially plans to deal with it when that future arrives.

That did not stop Tapper who persistently continued to question Carney and in the next questions he made a salient point about terrorism:

TAPPER: OK, not relating this question to the death of al-Libi, the United States has this technology. President Obama has said that the administration should be more transparent about it. Is there not any concern that the administration has that there is a precedent being set? We have just heard Assad this week blame the massacre that took place in Houla on terrorists. Any country -

CARNEY: And I heard a collective rolling of the eyes –

TAPPER: I’m not –

CARNEY: — or saw a collective rolling of the eyes around the globe –

TAPPER: Right.

CARNEY: — because everyone knows how preposterous that assertion is.

TAPPER: But that’s my point. And countries claim terrorism as a justification for their actions all the time. Even positing that the United States, under any president, only acts righteously every time, is there not any concern that a precedent is being set either for some future president and/or any other country?

CARNEY: Jake, without getting into — without getting into very sensitive issues that go to the core of our national security interests, I can simply say that this president, this commander in chief, puts a great deal of thought and care into the prosecution of and implementation of the policy decisions he makes. And that includes in the effort to combat al Qaeda in the Af-Pak region and around — and around the world.

There is no question, as the President has stated on many occasions, that the decisions that a commander in chief has to make when it comes to war and peace, when it comes to defending the United States and protecting the United States and our allies, are weighty, serious decisions. And he treats them that way every time he makes one.

This point could not be more critical and more damning for any presidential administration, current or future, in the United States so let’s restate it: “Countries claim terrorism as a justification for their actions all the time.” Tapper was rightfully interested in what happens in a future where presidents or other countries claim they are fighting terrorism to justify crimes or violations of international human rights law or even the sovereignty of a country like the United States. And, once again, Carney was not prepared to answer and so he vomits out some propaganda about how Drone Warrior-in-Chief Obama has to make “weighty, serious decisions” and he puts a “great deal of thought and care into the prosecution of and implementation of the policy decision he makes” (as if the innocent women, children and military-age males which the Obama administration won’t classify as civilians who are being murdered care whether he takes a long time to think about whether to execute them with a drone strike).

This morning, the Bureau of Investigative Journalism’s (TBIJ) Chris Woods appeared on Democracy Now! to talk about the escalation of drone strikes in Pakistan. He talked about how this might explain the “gulf between” TBIJ’s reporting on civilian casualties and reporting by credible news organizations. He also highlighted what was remarkable about this method:

…And I think it has profound implications in terms of U.S. policy, because if you keep assuring yourself that you’re not killing civilians, by a sleight of hand, effectively, by a redrafting of the term of “civilian,” then that starts to influence the policy and to encourage you to carry out more drone strikes. You might be getting tactical advantage from that, but strategically, whether this is in the long-term interests of the United States, when you have the people of Pakistan and Yemen expressing significant anger and concern about U.S. policy, I think that’s a critical point.

Woods also said people in the UK were asking questions because UK pilots sit next to US pilots at Creech Air Force Base and pilot drones:

I think some here are now saying, “Well, have the British adopted this definition of ‘civilian’?” The UK has claimed very low numbers of civilians killed in its conventional drone strikes in Afghanistan. And I think that is something that we want to start looking at here in the UK. Has this creeping redefinition of “civilian” crept [inaudible] into major operations outside of Pakistan and Yemen? And I think that’s something we’re going to be taking a good look at in the next few weeks.

Salon blogger Glenn Greenwald has said, “The president of the United States believes that he has the power to order people killed, assassinated, in total secrecy, without any due process, without transparency or oversight of any kind.” And he believes “it’s literally the most radical power that a government and a president can seize, and yet the Obama administration has seized this power and exercised it aggressively with very little controversy.” The Nation‘s Jeremy Scahill has said, ”The most dangerous thing” the US is doing, “besides murdering innocent people in many cases, is giving people in Yemen or Somalia or Pakistan a non-ideological reason to hate the United States, to want to fight the United States.” Former Guantanamo chief prosecutor has declared: “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.” And, noting that every time there is a drone attack there typically is a “terrorist-mediated bombing” that follows, Dr. Amna Buttar, a member of the Pakistani parliament, said 190 million Pakistanis’ lives have been made living hell “because of this war on terror and these terror attacks and these remote-controlled killings.”

But, the Obama administration does not care about the people of these countries where they are launching attacks. The lives of the people do not factor into decisions when they look at their baseball death cards on Terror Tuesdays and decide who should be assassinated next. They do not consider whether they are fueling terrorism or not and whether they are actually destabilizing countries. They only care about carrying out operations with flying killer robots and preserving this new power that the Executive Branch has managed to claim. So, they selectively leak propaganda, count on groups and voters that support Obama to remain silent and placate groups like the ACLU that actually mount campaigns to challenge a president that is radically redefining the definition of due process and escalating conflicts in multiple countries in the world.

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Listen to this episode of Citizen Radio. About seven to ten minutes into the show, Allison Kilkenny and Jamie Kilstein, hosts of the radio program, give me a shout out for writing this post, “How Coverage of Obama’s Role in Drone Executions Provokes Liberal Outrage.” And, in fact, these funny and insightful hosts use my post as the template for their segment on “why drone strikes and kill lists are a bad thing.”

You can hear the program by going here.