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Drone Disclosures, Official and Not

Jameel Jaffer,
Director, Knight First Amendment Institute
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October 19, 2015

As readers of this blog already know, last week The Intercept published a series of fascinating stories about the US drone campaign. The stories, and the official documents that accompany them, supply new details about the way the government chooses its targets, the way drone strikes are authorized, the way the government assesses civilian casualties, and the way the government judges the success or failure of individual strikes.

The Intercept’s stories were based largely on government documents furnished by an unidentified source — someone who was willing to risk career and personal liberty in order to inform the rest of us about legally and morally questionable policies that have been shrouded in unwarranted secrecy. As I’ve argued elsewhere, Americans owe whistleblowers like this an immense debt.

It must be said, though, that whistleblowers like this would be less necessary — and probably less common, too — if the government were complying with the Freedom of Information Act. In passing that Act, Congress intended to guarantee the public access to information about government conduct while also protecting information whose disclosure would truly endanger national security. In practice, though, the government routinely withholds information that the FOIA requires it to disclose. On the rare occasion when courts enforce the FOIA over the government’s objections, the government often manages to delay release of information by months or years, and the public gets access to information only long after it most needs it. (We seem to live in a world in which only the government has a right to information that is “actionable.”)

The ACLU persists nonetheless. Today we filed our principal appeal brief in ACLU v. CIA, a case that involves a FOIA request for records concerning the government’s use of drones to carry out lethal strikes against suspected terrorists and militants overseas. We filed the request in January 2010 and filed suit three months later. The CIA initially provided a “Glomar” response, contending that national security concerns precluded it from confirming or denying that it possessed records responsive to the request. In the fall of 2013, though, a three-judge panel of the D.C. Circuit rejected that argument, writing that the CIA was asking it to accept a “fiction of deniability that no reasonable person would regard as plausible.” The panel ordered the CIA to — finally — process the ACLU’s FOIA request and to justify any withholdings to the district court.

Once again in the lower court, the ACLU narrowed its request to two categories of documents: first, legal memos; and second, “summary strike data” indicating, for each drone strike, the identity of the intended targets, assessed number of people killed, date, status of those killed (combatant, non-combatant), agencies involved, location, and the identities of those killed if known. For its part, the CIA continued to proceed as if everything about the drone program were still a legitimate secret. It acknowledged that it had 12 legal memoranda responsive to the ACLU’s request as well as “thousands of records” containing summary strike data, but it declined to release the records or even to describe them in more detail.

This past June, Judge Rosemary Collyer ruled for the CIA, holding that all of the withheld documents are properly classified. (Incidentally, it was also Judge Collyer who dismissed aBivens suit filed by the families of the three US citizens killed by the CIA and the military’s Joint Special Operations Command in Yemen in 2011.) The brief we’re filing today argues that Judge Collyer got it wrong. From the brief’s introduction:

Since 2001, and with particular frequency since 2009, the United States has used unmanned aerial vehicles—drones—to carry out lethal strikes, or so-called “targeted killings,” against suspected terrorists and militants overseas. According to credible, independent studies, the strikes have killed more than three thousand people, including hundreds of civilians. Although many Americans have raised questions about the effectiveness, morality, and lawfulness of the government’s drone campaign, the government has exercised tight control over the information available to the public. The Freedom of Information Act request at issue in this case was filed by the [ACLU] to compel the release of information that is crucial to the public’s ability to understand government policy and hold policymakers accountable for their decisions.

We argue that legal analysis can be withheld only if it is inextricably intertwined with classified facts — and that the CIA has failed to show that the analysis at issue here cannot be extricated. (As we note, the government has been able to extricate legal analysis from classified facts in many other contexts, and an appeals court in New York extricated legal analysis from classified facts when it ordered the Justice Department to publish the memo authorizing the killing of Anwar al-Aulaqi.) We also dispute the district court’s conclusion that disclosure of the summary strike data would reveal classified intelligence sources and methods.

More broadly, we argue that the FOIA was enacted to guarantee the public access to the kind of information the CIA is now withholding:

In an earlier appeal, this Court held that the CIA could not lawfully refuse to confirm or deny its interest in the use of drones to carry out targeted killings, and that the Freedom of Information Act required the agency to provide a substantive response to Plaintiffs’ Request. Two years later, however, the CIA continues to withhold essentially everything, and public debate about the drone campaign continues to be impoverished and distorted by unwarranted secrecy and selective disclosure. The FOIA was enacted to prevent precisely this. It was meant to prevent federal agencies from operating on the basis of laws and policies concealed from the public. And, with narrow and carefully articulated exceptions, it was meant to compel agencies to disclose information about their conduct—even (and indeed especially) when that conduct is undertaken in the name of national security.

Government officials frequently complain of whistleblowers’ purported failure to use “official channels” for disclosure. Those who make the complaint usually don’t understand how the whistleblowing laws work. (The law that covers the intelligence community is “no more than a trap,” my former colleague Mike German quite accurately observed.) But perhaps the complaint would be marginally more sympathetic if the government were complying with the FOIA. Whistleblowers would surely be less inclined to disclose information through unofficial channels if the government were complying with its legal obligation to disclose information through official ones.

This was originally posted at Just Security.

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