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U.S. appeals court considers access to records on lethal drone operations U.S. appeals court considers access to records on lethal drone operations
(about 7 hours later)
A federal appeals court on Wednesday will consider whether the U.S. government must disclose more details about its lethal drone operations. A federal appeals court on Wednesday considered whether the U.S. government must disclose more details about its lethal drone operations.
The American Civil Liberties Union has been pressing for a fuller picture of the targeted-killing program, which the Obama administration has fought in court to keep secret. The American Civil Liberties Union pressed for a fuller picture of the targeted-killing program, which the Obama administration has fought in court to keep secret.
In a long-running Freedom of Information Act lawsuit, the ACLU has asked for statistics about the strikes, including the dates, locations and number of people killed, in addition to nearly a dozen legal memos related to the operations. Jameel Jaffer, the ACLU’s deputy legal director, told the U.S. Court of Appeals for the District of Columbia Circuit that government officials routinely disclose information about the strikes in places such as Yemen and Pakistan.
“Public debate is impoverished and distorted by unwarranted secrecy and selective disclosure,” according to the ACLU’s case, which will be argued Wednesday by its deputy legal director, Jameel Jaffer, before the U.S. Court of Appeals for the District of Columbia Circuit. “The drone strikes themselves are not secret. There are people overseas who witness them every day. If it’s a secret at all,” he said, “It’s a secret to us.”
The Justice Department, representing the Central Intelligence Agency, has said that making public such “granular” information would damage national security. In court filings, government attorneys note that U.S. officials have already provided some details about the use of armed drones “in order to provide greater transparency on a topic of significant public interest.” In the long-running Freedom of Information Act lawsuit, the civil liberties group has asked for statistics about the strikes, including the dates, locations and number of people killed, in addition to a dozen legal memos related to the operations.
“That effort should not be penalized by compelling the disclosure of additional classified and privileged information,” according to the government’s case, which will argued by Justice Department attorney Sharon Swingle. Justice Department lawyer Sharon Swingle, representing the CIA, drew a distinction between broad, general statements by officials and the type of “granular data” the ACLU has requested that she said would “reveal very sensitive information.”
U.S. officials have already provided some details about the use of armed drones “in order to provide greater transparency on a topic of significant public interest,” according to the government’s filing. “That effort should not be penalized by compelling the disclosure of additional classified and privileged information.”
The judicial panel — Judges David S. Tatel, Thomas B. Griffith and David B. Sentelle — must decide what information about the program the government can legitimately withhold from the public.
When the ACLU initially filed its lawsuit in 2010, the CIA declined to confirm the existence of any relevant records.When the ACLU initially filed its lawsuit in 2010, the CIA declined to confirm the existence of any relevant records.
However, because President Obama and the former CIA director, among others, had publicly described the program, the appeals court found that the agency was required to tell the ACLU what records exist. However, because President Obama and the former CIA director, among others, had described the program in interviews and press briefings, the appeals court initially found that the agency was required to tell the ACLU what records exist.
“It is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain,” Chief Judge Merrick B. Garland said of such a disclosure in his 2013 opinion.“It is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain,” Chief Judge Merrick B. Garland said of such a disclosure in his 2013 opinion.
In a separate case filed by the ACLU and the New York Times, an appellate court judge in New York in 2014 released a government memo outlining the justification for the 2011 drone strike in Yemen that killed Anwar al-Awlaki, a U.S. citizen and accused al-Qaeda operative. More recently, in a separate case filed by the ACLU and the New York Times, an appellate court judge in New York in 2014 released a government memo outlining the justification for the 2011 drone strike in Yemen that killed Anwar al-Awlaki, a U.S. citizen and accused al-Qaeda operative.
[Debate renewed over control of lethal drone strikes after American hostage killed] [Legal memo backing drone strike that killed American is released ]
On Wednesday, the D.C. case will be heard by a three-judge panel comprising Judges David S. Tatel, Thomas B. Griffith and David B. Sentelle. In the D.C. case, the ACLU wants the court to review at least some of the underlying documents and to consider disclosing the legal analysis behind the program while redacting any classified facts that would compromise national security.
Civil liberties advocates suggest that the court could separate the legal analysis behind the program from any classified facts that could compromise national security. The ACLU says that because government officials have already acknowledged the use of armed drones in places such as Yemen, Somalia and Pakistan, the legal justification is essentially government policy. Judge Tatel appeared inclined to try to find a way to do that, saying that he is “pretty curious” to review the records.
But Justice Department lawyers say that even if the memo analyzes whether the operations are legal, the records the ACLU is seeking are not “secret law.” “How can a court know that there isn’t information in those documents that could be disclosed without looking? How does the court exercise its responsibility without looking?” Tatel asked.
But Tatel also noted that the court is restricted by past cases that set high standards for undertaking such an in-depth review. The judges are supposed to rely first on a classified affidavit from a CIA official summarizing the legal memos and drone statistics.
Previous cases suggest that it is “neither necessary nor appropriate” for judges to review the specific records at issue if they are satisfied that the government is justified in withholding the documents.
“We’re still not supposed to look at it if it’s properly classified,” Sentelle noted Wednesday.
Justice Department lawyers said in court filings that the CIA cannot release redacted portions of the memos that the ACLU is seeking without compromising classified information and intelligence capabilities. Even if the documents analyze whether drone operations are legal, the government said the memos are not equivalent to “secret law.”
The documents do not “compel any particular action by the CIA or any other government agency, nor do they determine what government policy will be.”The documents do not “compel any particular action by the CIA or any other government agency, nor do they determine what government policy will be.”
In addition, releasing the identity of the agency’s targets or the locations of each strike, Justice Department lawyers say, would “self-evidently be revealing of the CIA’s intelligence capabilities.”