The American Civil Liberties Union won a round in its bid to get data from the Central Intelligence Agency on its use of drones as a U.S. appeals court ruled public statements by officials had already disclosed the program.
A three-judge panel of the U.S. Court of Appeals in Washington today sent the case back to a lower court for further review. The panel said in light of the officials’ statements, the CIA couldn’t argue the program was secret so it didn’t have to confirm or deny whether it had documents regarding drones’ use to kill individuals in Pakistan and Yemen.
“Given these official acknowledgments that the United States has participated in drone strikes, it is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain,” Circuit Judge Merrick B. Garland wrote in a 19-page opinion on behalf of the panel, which included Judges David Tatel and Thomas Griffith.
The dispute involves a Freedom of Information Act request by the ACLU seeking records on the legal basis for using unmanned aerial vehicles to kill human targets, the number of strikes and selection of targets.
The group also wants documents on whether the program involves cooperation with foreign countries, the determination of possible civilian casualties and the evaluation of completed strikes.
The ACLU argued in its appeal that the CIA’s refusal to confirm or deny existence of the records was unlawful because officials including President Barack Obama and Leon Panetta, the defense secretary at the time, had acknowledged the program’s existence in public statements.
The ruling “will make it more difficult for the government to deflect questions about the program’s scope and legal basis,” said ACLU Deputy Legal Director Jameel Jaffer, who argued the case before the panel in September. “It also means that the CIA will have to explain what records it is withholding, and on what grounds it is withholding them.”
CIA spokeswoman Jennifer Youngblood said “the CIA does not, as a rule, comment on matters before the courts,” in an e- mailed note.
The ACLU filed its FOIA request in January 2010, seeking to learn when, where and against whom drone strikes can be authorized and whether the U.S. ensures compliance with international law restricting extrajudicial killings.
In September 2011, the district court granted the government’s request to dismiss the case, accepting the CIA’s argument that it couldn’t release any documents because even to acknowledge the program’s existence would harm national security.
When an agency has officially acknowledged otherwise exempt information through previous disclosures, it has waived its right to withhold that information, Garland wrote in today’s opinion. Besides Obama and Panetta, the judge cited remarks by John Brennan, Obama’s ex-counterterrorism adviser and now CIA director, about the presence of the drone targeting program.
“There comes a point where courts should not be ignorant as judges of what they know as men and women,” Garland wrote. “We are at that point with respect to the question of whether the CIA has any documents regarding the subject of drone strikes.”
Just how detailed those disclosures must be, “is another matter,” Garland wrote.
The case is American Civil Liberties Union v. Central Intelligence Agency, 11-5320, U.S. Court of Appeals for the District of Columbia (Washington).
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