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ACLU Challenges Government’s "Fiction of Deniability" on Use of Drones for Targeted Killing

Brett Max Kaufman,
Senior Staff Attorney,
ACLU Center for Democracy
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September 16, 2013

On Friday, the ACLU asked the federal district court in Washington, D.C. to reject the Central Intelligence Agency’s argument that it cannot provide any information in response to our Freedom of Information Act (FOIA) request about the use of drones for targeted killing. Last March, the Court of Appeals for the D.C. Circuit called the CIA’s refusal to confirm or deny whether it even possessed records responsive to the FOIA request “indefensible,” and it rebuked the agency for constructing “a fiction of deniability that no reasonable person would regard as plausible.”

The D.C. Circuit returned the case to the district court and ordered the CIA to produce a list and description of documents in its possession. But five months later, in a filing in the district court, the CIA barely budged. While the agency finally conceded the obvious — that it holds records about drones and targeted killing — it contended that it could not provide any further information without endangering national security.

As the ACLU’s brief argues, the CIA’s unrelenting refusal to even list or describe any documents in its possession is “so plainly inadequate that it verges on the frivolous”:

Indeed, the CIA’s response is so obviously deficient that one can only assume that the CIA’s goal is not to prevail on this motion but simply to delay as long as possible the day on which the agency will finally be required to explain what documents it is withholding and why.

This is especially so because, while the agency gives the federal courts the silent treatment, it has continued what an appeals court judge in this case labeled a “pattern of strategic and selective leaks at very high levels of the Government.” The ACLU’s brief argues that the time has come for this double game to end, and it asks the district court to order the CIA to describe the documents it possesses and to justify withholding each document from the public, as it is required to do under the law.

The new filing is the latest in the ACLU’s two ongoing FOIA cases challenging the government’s claims to absolute secrecy regarding drones and targeted killing. In our second case, early next month, the ACLU will appear before the Second Circuit Court of Appeals to argue that a New York district court’s January 2013 decision upholding the government’s claim of secrecy about its legal and evidentiary basis for killing three U.S. citizens was erroneous. In that case, the district court refused to order the government to produce any documents, but did so only after acknowledging that the result felt like something out of Alice in Wonderland: “I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for its conclusion a secret.” This summer, the ACLU filed two briefs in the Second Circuit explaining why the district court got it wrong.

Both cases make clear that the government has taken the concept of official secrecy to new extremes. It is well past time for the public to decide for itself — based on documents, and not self-serving and selective leaks — whether, as the government publicly asserts, the targeted killing program is legal, wise, and effective.

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