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March 19, 2012

Challenging the CIA’s Withholding of Records on Drone Killings

Posted in: War on Terrorism

Reaper drone fires a hellfire missile (photo: james_gordon_los_angeles)

(update below)

The American Civil Liberties Union (ACLU) continued its challenge against the CIA’s withholding of information on the agency’s use of drones to carry out “targeted killings.” As part of an ongoing Freedom of Information Act (FOIA) lawsuit, an appeal was filed on March 15.

The ACLU’s appeal argues the case centers on whether it is lawful for the CIA to “refuse to confirm or deny the existence of records about a program that has already been acknowledged and discussed by the President, the then-CIA director and many other government officials in scores of public statements.” In this instance, the court has allowed the CIA to give what is called a Glomar response and “neither confirm or deny” the records exist.

It further explains:

This Court has allowed a Glomar response only where an agency’s disclosing the existence or non-existence of responsive records would itself disclose information that the agency may lawfully withhold under an enumerated exemption to the FOIA. It has repeatedly emphasized that a Glomar response is inappropriate where the government has officially acknowledged the very information sought to be protected. The government has already acknowledged the existence of the CIA’s drone program. The CIA cannot lawfully refuse to process Plaintiffs’ request on the grounds that doing so would require it to confirm what it has already confirmed. Indeed, upholding the CIA’s Glomar response here would serve only to harness the Court’s institutional authority to a transparent fiction. Anyone who has followed the debate about the CIA’s drone program knows that the program has been discussed on the record not only by the President and the then-CIA Director but by many other officials as well, and it is plain that any harm to the nation’s security that would result from disclosure of the program has already been inflicted by the Agency itself. Unsurprisingly, many commentators have already observed (and lamented) the increasing chasm between the categorical proposition the CIA advances in this litigation—that the very existence of the Agency’s drone program is a secret—and the numerous, detailed, and often self-serving statements the government has made about the program in other fora. The Glomar doctrine surely does not permit the government to play this kind of double game, still less to enlist the judiciary as a participant in it. [emphasis added]

The appeal notes the US government’s escalated use of drones for lethal strikes in Afghanistan, Iraq, Libya, Pakistan, Yemen and Somalia. Government officials have been more than wiling to celebrate the “successes” and “legality” of the strikes but have not been transparent. They’ve been willing to publicly push aside concerns over civilian casualties caused by the strikes. They have selectively leaked information but fought to prevent disclosures of key information that could give the public a full understanding of the US government’s employment of drones for executions of terror suspects and other individuals without charges.

The ACLU believes through a FOIA request details concerning “the putative legal basis for carrying out targeted killings; any restrictions on those who may be targeted; any civilian casualties; any geographic limits on the program; the number of targeted killings that the agency has carried out; and the training, supervision, oversight, or discipline of drone operators” will all be revealed. And, civil liberties group find knowing that information is essential to the public’s ability to assess the “wisdom and lawfulness of the CIA’s drone program.”

The CIA’s drone program is a Frankenstein creation of the Executive Branch of the US government. It’s ability to continue to evolve and grow depends on secrecy and the kind of selective leaking that officials use to build support for aspects of the program that they think should make it hard to challenge the existence of the program. However, it is this selective leaking that should make it impossible for a judge to let the CIA keep records from seeing the light of day.

On February 24, the Washington Post published details of a top secret diplomatic cable that was leaked by senior government officials. It featured the warnings of US Ambassador to Afghanistan Ryan Crocker on the “persistence of enemy havens in Pakistan.” The havens, which is what drone strikes would target, were briefly described. The details indicated the CIA was trying to take out another “mujahheddin fighter” it had once empowered when it backed “mujaheddin fighters” in the Soviet war in Afghanistan in the 1980s. A son of this fighter, the Post reported, has a $5 million bounty on his head and he is using a “prominent religious school” as a base. The CIA is afraid to strike because of possible civilian casualties.

This was selective leaking at its finest. The leaking was done to build up public understanding and even support for ongoing covert and military action in Pakistan. And, it also revealed details on enemy targets that if leaked by anyone other than unnamed government officials would have likely produced a major government investigation into the leak.

The CIA may not want to reveal details on the enemies its drones are targeting, and it may not want to show how it is employing lethal force to kill terror suspects without charge but government officials have talked about the program. It isn’t entirely covert anymore. On top of that, 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.”

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.

The Justice Department is advancing a wholesale reinterpretation of international and domestic law that allows for the sanctioning of murder. And, if the fact that government leaks like a sieve isn’t enough to force the CIA to disclose records, the unraveling of decades of legal understanding of due process should be more than enough to require the CIA to show why it is so essential to America to have a program for executing people without charges abroad.


The National Security Archive has directed my attention to a section of their post on Holder’s speech that suggested Anwar Al-Awlaki, who was targeted and killed in Yemen, was not named to preserve Glomar.

Holder mentioned Osama bin Laden, John Walker Lindh, Richard Reid, Zacarias Moussaoui, Umar Farouk Abdulmutallab, Fazizal Shahzad, Ahmed Ghailani, Daniel Boyd, and Michael Finton.  Conspicuously, he did not mention the “targeted killing” of Anwar al-Awlaki.  Probably because if the US government acknowledged the targeted killing of Anwar al-Awlaki –rather than than anonymously leaking it to the press– it would be forced to admit to FOIA requesters (see below) that an Office of Legal Council memorandum justifying his “targeted killings” exists [italics not added]

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