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Victory in Court: CIA Can No Longer Refuse to "Confirm or Deny" on Drones

a drone
a drone
Brett Max Kaufman,
Senior Staff Attorney,
ACLU Center for Democracy
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March 15, 2013

In an important victory for transparency, a federal appeals court today put an end to the CIA’s absurd claims that it “cannot confirm or deny” whether it has information about the government’s use of drones to carry out targeted killings.

In a Freedom of Information Act lawsuit filed by the ACLU, the influential D.C. Circuit Court of Appeals ruled that “it is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain to say that the Agency” had a so-called “intelligence interest” in the government’s killing program. The ruling affirms the public’s right to understand and evaluate the government’s defense of the program with information that goes beyond what has been provided through the government’s own selective leaks and disclosures.

As ACLU Deputy Legal Director Jameel Jaffer, who argued the case before the appeals court in September, said today:

This is an important victory. It requires the government to retire the absurd claim that the CIA’s interest in the targeted killing program is a secret, and it will make it more difficult for the government to deflect questions about the program’s scope and legal basis. It also means that the CIA will have to explain what records it is withholding, and on what grounds it is withholding them.

The court firmly rejected the CIA’s claims to secrecy about drones, writing that it “beggars belief” that the Agency does not possess documents relating to the government’s drone program. Those claims have proved to be increasingly divorced from reality over the months since the oral argument in the case. In February, the chairpersons of both congressional intelligence committees confirmed that they conduct oversight of CIA drone strikes. Also last month, the CIA’s new director, John O. Brennan, discussed the government’s killing program at length during his Senate confirmation hearings.

It’s no wonder, then, that the D.C. Circuit refused to abide the CIA’s request that the courts “give their imprimatur to a fiction of deniability that no reasonable person would regard as plausible.”

Perhaps most importantly, today’s ruling sends a clear message to the Obama administration that it must fundamentally reconsider its position regarding the alleged secrecy of its targeted killing program. As Jaffer put it, “The public surely has a right to know who the government is killing, and why, and in which countries, and on whose orders.”

With its preposterous secrecy claim now unavailable to it in court, the administration should move quickly to make public the information the American public is entitled to see.

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