[Infowarrior] - Appeals Court deals blow to CIA drone secrecy

[Richard Forno]

Court deals blow to CIA drone secrecy
By: Josh Gerstein
March 15, 2013 11:26 AM EDT

http://dyn.politico.com/printstory.cfm?uuid=5B201C32-6351-433B-8D52-0F18CDE166E1

For now, the Central Intelligence Agency can still maintain its official silence on whether it uses armed drones. But a new court decision Friday could force the agency to provide some information about what kind of records they have on the subject and spell out why it’s not required to say more about them.

In the first judicial blow to secrecy surrounding the Obama Administration’s armed drone program, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously rejected the CIA’s claim that it could refuse to confirm or deny whether it possesses any records related to drone strikes.

But whether the ruling will result in more drone-related documents actually being released to the public remains murky.

The judges found that public statements about drones from President Barack Obama, former CIA director Leon Panetta and new Central Intelligence Agency Director and former White House counterterrorism adviser John Brennan made it implausible for the CIA to assert that it needed to keep secret the very question of whether it maintains any information on the subject.

“Although these statements do not acknowledge that the CIA itself operates drones, they leave no doubt that some U.S. agency does,” Judge Merrick Garland wrote in an opinion joined by Judges David Tatel and Thomas Griffith. “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.”

“As it is now clear that the Agency does have an interest in drone strikes, it beggars belief that it does not also have documents relating to the subject,” Garland added.

The judges did not rule that any specific documents must be made public by the CIA. However, the CIA will now be obligated to make some further filings with a lower court, describing the relevant records in some fashion and explaining why they are covered by one or more Freedom of Information Act exemptions. That process usually results in the disclosure of some records — whether it will in this case and whether such records will add meaningfully to the hot public debate over drones is unclear.

The appeals court acted on a lawsuit the American Civil Liberties Union brought under the Freedom of Information Act. In 2011, a district court judge accepted the CIA’s argument to apply the so-called Glomar doctrine to the case.

Under that theory, named for a ship the CIA used on a secret 1974 mission to raise a sunken Russian submarine from the ocean floor, agencies can sometimes refuse to acknowledge even whether they have certain documents on a subject if disclosing that fact would undermine interests protected by one or more exemptions to the Freedom of Information Act.

Garland and Tatel are appointees of President Bill Clinton. Griffith was appointed by President George W. Bush.

Even before the judges’ ruling Friday, the CIA seemed to be backing away from its previous refusal to say whether it had any drone records whatsoever.

In a filing with the appeals court last June, Justice Department lawyers said they had disclosed in a separate case that the CIA had some drone-related records, like a copy of Brennan’s speech on the subject last year.

In what may have been a bid to head off a defeat like Friday’s one, the government asked the D.C. Circuit to return the case to the district court, but DOJ lawyers were vague about what they planned to do if the case was sent back there. The ACLU opposed remanding the case and the appeals court panel denied the motion the following month, without explanation.

A DOJ spokesman, Dean Boyd, said, “We’re reviewing the decision.”

But the ACLU’s Jameel Jaffer called Friday’s decision “an important victory.”

“We hope that this ruling will encourage the Obama administration to fundamentally reconsider the secrecy surrounding the targeted killing program,” Jaffer said. “The public surely has a right to know who the government is killing, and why, and in which countries, and on whose orders.”

© 2013 POLITICO LLC


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