Just before a midnight deadline on Wednesday, the government filed its legal brief responding to the ACLU’s Freedom of Information Act lawsuit seeking information about the legal and factual basis for the deaths of three U.S. citizens in targeted killing drone strikes last fall. Our initial reaction to the brief is here, but the government’s position is so remarkable that it warrants further comment.
• We filed this lawsuit on February 1, 2012, after the government responded to our Freedom of Information Act request by refusing to confirm or deny whether it had records about the legal authority or factual basis for the targeted killing of U.S. citizens. The brief the government submitted on Wednesday (literally at the 11th hour and 57th minute) was originally due on April 13, but the government sought a series of extensions of that deadline, twice telling the court that delay was required because “the Government’s position is being deliberated at the highest level of the Executive Branch.” And what did two and a half months of deliberation produce? Virtually nothing. Not disclosure of the Office of Legal Counsel memorandum that provided purported legal justifications for killing U.S. citizen Anwar al-Awlaki. Not information about the process by which U.S. citizens are added to “kill lists.” Not the evidence the government relied on to justify the targeting of al-Awlaki. Not information about how and why it killed two other American citizens, including a 16-year-old boy, in drone strikes last fall. Not even an acknowledgment that the CIA conducts targeted killings at all, or that the military took part in the targeting and killing of the three U.S. citizens last year.
Here’s the change in position that officials at the “highest level” decided on: They pointlessly acknowledged that the CIA has in its files copies of recent public speeches by Attorney General Eric Holder and the President’s chief counterterrorism advisor, John Brennan. And they acknowledged that they have identified other documents relevant to our request, but refuse to discuss what those documents are about or even how many there are. The government’s brief amounts to a total secrecy snow job. In every relevant respect, the government’s stonewalling continues. Although in public speeches and in the press government officials have repeatedly acknowledged the CIA and military targeted killing programs and discussed the U.S. responsibility for killing al-Awlaki, in court the government continues to cling to a patently implausible invocation of official secrecy.
• The government’s position is strikingly broad. The government’s brief says that “whether or not the United States government conducted the particular operations that led to the deaths of Anwar al-Aulaki and other individuals named in the FOIA requests remains classified.” But if U.S. responsibility for killing al-Awlaki is classified, someone forgot to tell the Department of Defense. Within hours of al-Awlaki’s death, DOD published a news article stating that “[a] U.S. airstrike . . . killed Yemeni-based terrorist Anwar al-Awlaki early this morning.” President Obama and Secretary of Defense Leon Panetta have both acknowledged that the U.S. killed al-Awlaki. At this point, refusing to say whether the U.S. was responsible for killing al-Awlaki at all, not even whether the CIA or the military was responsible, is absurd.
• The government goes even further: Incredibly, it appears not to acknowledge even that Anwar al-Awlaki is dead. In a sworn declaration filed with the government’s brief, a representative of the Department of Defense states: “I am not aware of any Executive Branch official having officially acknowledged the nature, depth, or breadth of DoD’s interest or involvement in the deaths, or lack thereof, of Anwar al-Awlaki, Samir Khan, or Abdulrahman al-Awlaki.” Deaths, or lack thereof? Maybe this is just a badly constructed sentence, but if the military is now refusing to acknowledge even that al-Awlaki is deceased, it has truly become unmoored from reality.
• More generally, the government’s claim that it cannot respond to our request “without revealing classified . . . information about the nature and extent of the U.S. government’s interest in” targeted killing of U.S. citizens is belied by the volume and frequency of statements by named and unnamed government officials about the targeted killing program generally and the killing of U.S. citizens in particular. The government is ducking its obligations under the Freedom of Information Act by attempting to selectively disclose information to bolster its image, but refusing to provide meaningful transparency when challenged in court. As we recently explained in a related FOIA case, this is precisely what FOIA was intended to prevent.
The government’s filing is beyond disappointing. Our government persists in carrying out a policy of killing people, including U.S. citizens, far from active battlefields and in violation of international and domestic law. A handful of speeches by government officials roughly outlining legal theories do not constitute adequate transparency. The government must do better.