The Central Intelligence Agency has filed a motion in the American Civil Liberties Union’s (ACLU) Freedom of Information Act (FOIA) lawsuit, which indicates the CIA is not budging from its position that it has not revealed publicly whether it is involved in “targeted killings,” such as drone strikes. It also believes if it revealed whether it did engage in “targeted killings” that would reveal “national security information” the agency is exempt from disclosing.
In March, the US District Court of Appeals for the District of Columbia ruled the CIA could not continue to deny in court that it had no “intelligence interest” in drones strikes carried out by the United States government. The appeals court’s ruling reversed a lower court decision, which found the CIA did not have to acknowledge it had any records on drone strikes.
Judge Merrick B. Garland wrote in the decision the question before the court was whether it was “logical or plausible” for the “CIA to contend that it would reveal something not already officially acknowledged to say that the Agency ‘at least has an intelligence interest’ in” drone strikes.
Displaying the proper contempt for the CIA’s argument in this lawsuit, Garland also highlighted statements by then-CIA Director Leon Panett, such as this one on “remote drone strikes” in the tribal regions of Pakistan.
He went on to state, “It is hard to see how the CIA Director could have made his Agency’s knowledge of — and therefore “interest” in – drone strikes any clearer. And given these statements by the Director, the President, and the President’s counterterrorism advisor, the Agency’s declaration that ‘no authorized CIA or Executive Branch official has disclosed whether or not the CIA . . . has an interest in drone strikes’ is at this point neither logical nor plausible.”
Now, displaying the smug arrogance of executive power, the CIA contends “it remains the case that no authorized Executive Branch official has disclosed the precise nature of the CIA’s involvement in the use of targeted lethal force.”
The CIA was supposed to come back to the ACLU with a list of “responsive documents” to the request for information about the rules, regulations, procedures and legal basis for drone strikes, as urged in the district court’s decision. However, in the motion, the agency acknowledges that it has certain records that were responsive but declares, “The details of those records, including the number and nature of responsive documents, remain currently and properly classified facts exempt from disclosure.” And the, “Official disclosure of such details would reveal sensitive national security information concerning intelligence activities, intelligence sources and methods, and the foreign activities of the United States.”
The agency further argues:
It would provide important insights into the CIA’s activities to terrorist organizations, foreign intelligence services, or other hostile groups, and could affect the foreign relations of the United States. The CIA has properly asserted a “no number, no list” response, which should be accorded substantial deference in light of the Agency’s considerable national security expertise. The CIA is entitled to a grant of summary judgment in its favor.
Part of the justification for this position is how it interprets what the judge meant by “intelligence interest.”
…the Court found only that the CIA could acknowledge having an intelligence interest in strikes conducted by the U.S. Government, and that there was no reason that such a disclosure would reveal whether or not “the Agency itself – as opposed to some other U.S. entity such as the Defense Department – operates drones…
Based off what the judge wrote after reading the Panetta’s quote, it is hard to believe the judge wasn’t suggesting that the CIA was involved in drone strikes that result in the deaths of targeted individuals to some extent, however, if one goes down the rabbit hole here and accepts this position, it is still rather incredible.
The CIA should have to turn over a list of records, even if it is going to refuse to acknowledge the CIA has some actual involvement in carrying out drone strikes. The judge concluded the CIA should list records that showed it had an “intelligence interest” because that was revealed by Panetta. Therefore, with any proper redactions, the ACLU should get some kind of list that provides some bits and pieces on the CIA’s “intelligence interest” in how the US armed forces are carrying out strikes or how this mysterious ultra-secretive agency that may or may not be the CIA is engaged in drone strikes that have not (allegedly) been acknowledged by the CIA.
Jameel Jaffer, deputy legal director of the ACLU who argued the case, reacted, “This is a remarkable brief, not least because it was filed on the same day that President Obama emphasized his commitment to transparency around counterterrorism policy. Three years after we filed our FOIA request for basic records about the targeted killing program, and even after the DC Circuit issued a unanimous decision holding that the CIA’s claim of categorical secrecy was illegitimate, the CIA has yet even to identify any documents responsive to our request, let alone describe them, enumerate them, or explain why they’re being withheld.”
At the National Defense University in May, Obama said “the necessary secrecy often involved in such actions can end up shielding our government from the public scrutiny that a troop deployment invites. It can also lead a President and his team to view drone strikes as a cure-all for terrorism.”
That was on full display with the recent spate of drone strikes in Yemen. The president said during a press conference on August 9, “You know, I’m not going to discuss specific operations that have taken place. Again, in my speech in May, I was very specific about how we make these determinations about potential lethal strikes. So I would refer you to that speech.”
But Obama was more than willing to say America has “got to continue to be vigilant and go after known terrorists who are potentially carrying out [plots that] are going to strengthen their capacity over time, because they’re always testing the boundaries of, well, maybe we can try this, maybe we can do that.” Essentially, he exploited the supposedly “necessary secrecy” he had appeared willing to question in his National Defense University speech.
The CIA, like Obama, is exploiting this “necessary secrecy” when refusing to be open and transparent about a basic fact, which the world knows: that the agency is targeting and killing people abroad with remote-controlled drones.