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Fighting to Bring the Drone Program Into the Light

Anna Diakun,
Nadine Strossen Fellow,
ACLU National Security Project
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October 25, 2016

Since its inception, the United States’ targeted killing program has been shrouded in secrecy. For years, the ACLU has sought basic facts about the way the program operates, as well as its legal and policy justifications, through multiple Freedom of Information Act lawsuits. Today, we’re back in front of the Second Circuit Court of Appeals in New York for the third time in three years, again asking for records that will yield a more complete public picture of the government’s law and policy governing the program.

At stake are 59 documents that the Central Intelligence Agency, the Department of Defense, and the OLC identified in response to our 2011 FOIA request. Last summer, the district court ordered the government to release at least part of seven documents, finding that the government could not reasonably claim that the information was still a secret. It permitted the government to withhold the rest.

The origins of today’s argument came five years ago, when the ACLU submitted a FOIA request asking the government for information about one particular aspect of the program: the legal and factual basis for the government’s use of lethal force abroad against American citizens far from any recognized battlefield.

In 2011, the United States targeted and killed Anwar al-Aulaqi, an American citizen, in a drone strike in Yemen. That same strike also killed Samir Khan, another U.S. citizen who was in al-Aulaqi’s vehicle when the United States targeted it. Two weeks later, another U.S. drone strike in Yemen killed al-Aulaqi’s 16-year-old American son, Abdulrahman — the government later claimed that he was not specifically targeted.

These kinds of strikes were shocking and unprecedented, yet the government refused to publicly account for its reasons. In our FOIA request, we asked the government the most basic of questions: Based on what facts did it decide to target and kill an American citizen, and why did it think that this action was legally justified?

In response, the government insisted on extreme secrecy. It first asserted that it could neither “confirm nor deny” whether it even had records related to targeted killing. Later, it gave up an inch, conceding that it did possess responsive records but claiming that it could not identify them without damaging national security.

The first time the ACLU argued before the Second Circuit in 2013, the court held that because the government had publicly acknowledged key information about the targeted killing program, it could no longer claim that the documents warranted complete secrecy. The court also ordered the government to release one document: a Justice Department Office of Legal Counsel memo that contained some of the legal reasoning that the government relies on when deciding whether to target and kill a U.S. citizen.

Although that memo provided the public with some insight into the government’s decision-making process, it left us with as many questions as answers. For example: How, exactly, does the government decide it isn’t “feasible” to capture a target? What does the government mean when it decides that the target poses a “continuing, imminent threat”—a term without precedent in U.S. or international law?

Two years later in 2015, after the district court considered whether the government could withhold some of the other relevant documents, we again argued before the Second Circuit. This time, we sought 11 OLC documents that addressed the targeted killing program. The court ordered the government to disclose one document but permitted the withholding of 10 others on the basis that their contexts and contents had never been officially disclosed by the government.

Flash forward to today. The government has revealed very little about the documents at issue, so it is difficult for us to say with any certainty what they cover. Indeed, one of our arguments to the Second Circuit today is that it should provide guidance to the government and lower courts to prevent excessive secrecy from crippling meaningful FOIA litigation and transparency.

From what we do know, however, we think it is likely that at least some of the documents contain legal and policy guidance that the agencies rely upon when they determine whether a particular targeted killing attempt is lawful. If this is the case, the American public has a right to this information so it can judge the lawfulness of the government’s actions and hold our decision-makers accountable.

Of course, that’s not to say that there are no secrets that the government can legitimately keep. But when the administration invokes “national security” to withhold the legal justification for killing people — even with all sensitive facts redacted — it’s relying upon “secret law.”

If the idea of secret law used to justify government killing makes you uneasy, you’re in good company — this kind of secrecy is entirely at odds with foundational principles of our democracy, and it is exactly what the FOIA is designed to prevent. And that’s what we’ll be telling the appeals court in New York today, as we move another step forward in our quest for answers.

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