Broad Spectrum of Organizations Support ACLU Legal Fight for Transparency on U.S. Drone Program

Today, nine organizations submitted a friend-of-the-court brief in support of the ACLU's Freedom of Information Act lawsuit seeking records about the CIA's use of drones to carry out targeted killings around the world.  The organizations work on a diverse array of issues that don't always overlap, including international human rights and rule of law, government transparency, investigative journalism, civil liberties and national security policy.  Although some of these groups seldom have occasion to collaborate, they joined together to urge the court to reject the CIA's position that it can't confirm whether it has a drone strike program at all.

The ACLU filed its appeal brief in the case last week in Washington. We argued that because high-ranking government officials have already acknowledged the existence of the drone program in public, the agency can't try to avoid public scrutiny by refusing to acknowledge the same program in court.  Today, the amicus brief added depth to that argument by carefully cataloguing just how much information about the drone program has already been made public by government officials, frequently quoted anonymously in press reports. 

Here's how the amicus brief framed the issues:

In this Freedom of Information Act ("FOIA") lawsuit, the CIA maintains that revealing the very existence of records relating to its program of targeted killing via drone-based missile strikes would expose a classified secret and cause national security harms. The existence of the CIA's targeted killing program, however, is so widely acknowledged and heavily reported upon that it can hardly be called a secret anymore.

First, the President and the CIA Director have officially acknowledged the CIA's targeted killing program. Second, unnamed government officials have not only confirmed the program's existence, but revealed important details, such as its geographic scope and target selection process. Moreover, the Attorney General publicly defended the program in a recent speech that provided the government's legal rationale for targeted killings. The volume and breadth of program information originating from government officials calls into grave doubt the CIA's claim that national security harms will result from the CIA merely acknowledging that it has responsive records.

The public has a significant interest in obtaining information on the CIA's program, as demonstrated by the fierce ongoing public debate on the issue of targeted killing. Having tolerated or allowed significant informational disclosures on the classified program, the CIA should not be allowed to hide behind its "Glomar" response to avoid the governmental accountability and transparency enabled by FOIA.

The organizations signing the brief are:

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
National Security Archive

The brief was written by the National Security Clinic at the University of Texas at Austin School of Law.

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Next: Police Drones—Recording Conversations In Your Home & Business To Forfeit Property?

Police are salivating at the prospect of having drones to spy on lawful citizens. Congress approved 30,000 drones in U.S. Skies. That amounts to 600 drones for every state.

It is problematic local police will want to use drones to record without warrants, personal conversations inside Americans’ homes and businesses: Consider the House just passed CISPA the recent Cyber Intelligence Sharing and Protection Act. If passed by the Senate, CISPA will allow—the military and NSA spy agency (warrant-less spying) on Americans’ private Internet electronic Communications by using so-called (Government certified self-protected cyber entities” that may share with NSA your private Internet activity, e.g. emails, faxes, phone calls and confidential transmitted files they believe might relate to a cyber threat or crime (circumventing the Fourth Amendment) with full immunity from lawsuits if done in good faith. CISPA does not clearly define what is an Element; or Self-protected Cyber Entity that could broadly mean anything, e.g. a private computer, local or national network, website, an online service.

Despite some U.S. cities and counties banning or restricting police using drones to invade citizens’ privacy, local police have a strong financial incentive to call in Federal Drones, (Civil Asset Forfeiture Sharing) that can result from drone surveillance). Should (no-warrant drone surveillance evidence) be allowed in courts circumventing the Fourth Amendment, for example (drones’ recording conversations in private homes and businesses, expect federal and local police civil asset property forfeitures to escalate. Civil asset forfeiture requires only a preponderance of civil evidence for federal government to forfeit property, little more than hearsay: any conversation picked up by a drone inside a home or business, police can take out of context to initiate arrests; or civil asset forfeiture to confiscate a home/business and other assets. Local police now circumvent state laws that require someone be convicted before police can civilly forfeit their property—by turning their investigation over to the Federal Government Agency that can rebate to the referring local police department 80% of assets forfeited. Federal Government is not required to charge anyone with a crime to forfeit property. There are more than 350 laws and violations that can subject property to government asset forfeiture that have nothing to do with illegal drugs.

Consider: if CISPA is passed by Congress it will provide Government, police and government contractors (Without Warrants) the incentive (to take out of context) any innocent—hastily written email, fax or other Internet activity to allege a crime or violation was committed to cause a person’s arrest, assess fines and or civilly forfeit a business or property. U.S. Government can use CISPA to (certify any employee) including employees that work for Government certified cyber self-protected entities—opening the door for certified employees to spy on their employers and clients. U.S. Government is not prohibited from paying any person including Government Certified Self Protected Cyber Entities, Elements or Certified Employee part of government forfeited assets or other compensation that result from the aforementioned providing U.S. Government a corporation’s confidential information or clients’ private information—that otherwise would require a warrant. U.S. Government now contracts on a Fee/Commission Basis with Self Protected Cyber Entities, Elements and Contractors that have security clearances to participate in facilitating arrests and Government asset forfeitures.

Generally Government can't use evidence obtained through illegal Internet searches of e.g. private emails and transmitted files without a warrant, however that will change if CISPA or a similar bill is passed by Congress. Since CISPA, two additional cyber-security bills have been created in the Senate called, “The Cyber Security Act of 2012” and “SECURE IT Act”. Both bills appear unconstitutional; appear designed to circumvent the Fourth Amendment. The Cyber Security Act of 2012 formally known as S. 2105 was created by Senate Democrats, Joe Lieberman and Susan Collins. Similar to CISPA, the Cyber security Act of 2012 would abolish legal walls that stop Federal government and private companies sharing information.

The SECURE IT ACT: S. 2151 was introduced by Senate Republicans on March 1st 2012: would (require) federal contractors to alert government about any cyber threats, forcing such communications between government regulators and corporations. The SECURE IT Act authorizes sharing of persons’ private Internet information (without a warrant) going beyond what is necessary to describe a believed cyber threat. SECURE It Act fails to create a regulatory system at the Federal level to oversee cyber-security threats opening the door for persons’ private and businesses’ confidential information to be misused and misappropriated by government agencies and private sector cyber entities.

Under CISPA Government should be prohibited from using so-call (certified self protected cyber entities) to circumvent the Fourth Amendment. Corrupt police, U.S. Government Agencies and Government Contractors may too easily use private Internet transmissions, emails and transmitted files government; and (government certified self protected cyber entities) collect (without a warrant) to extort corporations, politicians and Citizens; or sell confidential information gleaned from warrant-less Internet Surveillance. Confidential Information in corrupt hands can be worth more than illegal drugs.

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