Blog of Rights

In Court Today: Fighting the CIA's Secrecy Claims on Drones

By Brett Max Kaufman, Legal Fellow, ACLU National Security Project at 7:41am

This morning the ACLU will appear before the D.C. Circuit Court of Appeals in our Freedom of Information Act lawsuit seeking records about the CIA’s use of drone aircraft to carry out targeted killings around the world. We will argue that the court should put an end to the government’s double game of selectively disclosing information about the program in public while obstinately refusing to confirm or deny the very existence of the program in federal court.

The central legal issue before the appellate court today is whether the government, through its officials—including President Obama and former CIA Director and current Defense Secretary Leon Panetta—has officially and publicly acknowledged the existence of the CIA’s use of drone airstrikes. Under FOIA, once the government has acknowledged a fact in public, it is prohibited from refusing to confirm the same fact in court. This rule ensures that the government cannot make self-serving claims about its actions when convenient, but then deny the public access to the full and accurate information about those actions to which the public is entitled under FOIA.

In our two briefs to the appeals court, we have highlighted statements by Obama administration officials that belie the government’s incredible position that it has not, continuously and repeatedly, officially acknowledged the existence of the program. For example, in response to a question about drone strikes at a public forum in 2009, then-Director Panetta called such strikes “the only game in town in terms of confronting and trying to disrupt the al-Qaeda leadership.” (The statement is even published on the CIA’s own website.) More recently, Panetta revealed to 60 Minutes that, as CIA director, he made recommendations to the president regarding the lethal targeting of U.S. citizens. President Obama has also repeatedly discussed the drone program, including by taking credit for the drone strike that killed U.S. citizen Anwar al-Awlaki in Yemen last year. (In another FOIA lawsuit, the ACLU is seeking the legal and factual justifications for that killing, and those of two other U.S. citizens, including 16-year-old Abdulrahman al-Awlaki.)

Today we will argue that, as these statements make clear, government officials have acknowledged the CIA's drone program. That conclusion is inescapable, particularly when the statements are read against the ever-accumulating, voluminous background of on-the-record accounts provided by unnamed administration officials trumpeting the program to the American public. Indeed, last week, we highlighted a ProPublica interactive web feature that starkly compared more than three years of administration officials’ public statements about CIA drones with the CIA’s blanket refusals to acknowledge the matter in court.

As ACLU Deputy Legal Director Jameel Jaffer, who will argue the case today, said:

The notion that the CIA’s targeted killing program is a secret is nothing short of absurd. For more than two years, senior officials have been making claims about the program both on the record and off. They’ve claimed that the program is effective, lawful, and closely supervised. If they can make these claims, there is no reason why they should not be required to respond to requests under the Freedom of Information Act.

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