The CIA cannot refuse to respond to Freedom of Information Act requests about its program using remotely piloted drone aircraft to kill terror suspects now that officials have publicly acknowledged it, a federal appeals court ruled Friday.
Given the public statements by officials from President Obama on down, “it is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain” by admitting that it had records or documents about the program, reads the unanimous ruling of a three-judge panel of the D.C. Circuit Appeals Court.
The ruling effectively re-opens a three-year-old lawsuit brought by the ACLU against the agency, seeking disclosure of 10 categories of documents about the controversial program — which has killed hundreds of people in Pakistan, Yemen and Somalia, including three Americans and an unknown and bitterly disputed number of civilians.
A lower court summarily dismissed the case in September 2011, but Friday’s judgment sends it back there for further action.
“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,” said ACLU Deputy Legal Director Jameel Jaffer in a statement.
The ACLU first filed the Freedom of Information Act request with the CIA in January 2010, seeking the disclosure of records the agency had “pertaining to the use of unmanned aerial vehicles (‘UAVs’) — commonly referred to as ‘drones’ … — by the CIA and the Armed Forces for the purpose of killing targeted individuals.”
The CIA blocked the request with a so-called “Glomar response,” refusing either to confirm or deny the existence of any relevant records.
The response is named for a case in which the CIA declined to confirm or deny whether it had documents relating to Howard Hughes’ ship, the Glomar Explorer.
CIA spokeswoman Jennifer Youngblood would not comment, citing an agency rule not to speak of matters before the courts.
Friday’s ruling would also make it more difficult for the Obama administration to continue ducking questions about the program’s scope and legal basis, said Mr. Jaffer, who argued the case before the three-judge panel last September.
But the terrain on which the ongoing legal battle will be waged may be shifting.
During his nomination process, newly minted CIA Director John O. Brennan made it known that he believed the drone killing program would be better conducted by the U.S. military — arguing that this would facilitate greater transparency from the Obama administration about the issue.
But this week, Defense News reported that U.S. Central Command, which runs the U.S. war effort in Afghanistan, will no longer release figures for its own program of lethal drone strikes.
The command previously had released the number of drone strikes each month as part of a regular report on the use of airpower in the Afghan theater.
A Pentagon spokesman told Defense News that the numbers would still be available — to reporters willing to file a Freedom of Information Act request.
Centcom’s area of operations includes Pakistan and Yemen as well as Afghanistan, so it might be expected to take over a large proportion of the strikes, if the drone program is indeed transferred to the military.
There are also unanswered questions about the legal implications of such a change, for example in Pakistan, where the government has publicly said it has not authorized U.S. strikes — although former senior U.S. officials say the two countries’ intelligence agencies have a confidential understanding on the issue.
On Friday, the U.N. Special Rapporteur on Counter-Terrorism and Human Rights, who is conducting an investigation into U.S. use of targeted killing, said the program was a violation of Pakistan’s sovereignty.
The drone attacks should stop, said Ben Emmerson, after an unpublicized three-day visit to Islamabad.
In a statement Friday, he said the drone campaign “involves the use of force on the territory of another state without its consent, and is therefore a violation of Pakistan’s sovereignty.”
“Pakistan has also been quite clear that it considers the drone campaign to be counter-productive and to be radicalizing a whole new generation,” Mr. Emmerson added, “thereby perpetuating the problem of terrorism in the region.”