Targeted Killing: Drones

The ACLU’s Limited Victory in the D.C. Circuit FOIA Case

By Jack Goldsmith
Friday, March 15, 2013, 3:11 PM

Judge Garland’s persuasive opinion in the ACLU FOIA case is important but narrow, and its significance for intelligence community transparency is entirely unclear.

Recall that the CIA had refused to respond to the ACLU request for records pertaining to drone strikes.  The CIA’s justification for this Glomar response was that “[a]n official CIA acknowledgment that confirms or denies the existence or nonexistence of records responsive to Plaintiffs’ FOIA request would reveal, among other things, whether or not the CIA is involved in drone strikes or at least has an intelligence interest in drone strikes” (emphasis added).  Focusing on this italicized phrase, Judge Garland, writing for a unanimous Court (himself, and Judges Tatel and Griffith), ruled that top government officials had acknowledged that the CIA had an intelligence interest in drones.  This conclusion followed from (a) the open acknowledgment by the President and others that the U.S. uses drones strikes against al Qaeda based on the full range of U.S. intelligence capabilities, (b) the fact that the Central Intelligence Agency is a central government provider of such intelligence, (c) then-CIA Director Panetta statements about the details of U.S. drone strikes, and (d) the CIA’s acknowledgment in related SDNY litigation that it had records responsive to a related documents (namely, the well-known speeches by Eric Holder and John Brennan).  “[A]s 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,” the Court concluded.

So far so good for the ACLU, but then the case gets trickier.  “With the failure of the CIA’s broad Glomar response,” Judge Garland explained, “the case must now proceed to the filing of a Vaughn index or other description of the kind of documents the Agency possesses, followed by litigation regarding whether the exemptions apply to those documents.”  Judge Garland left open how detailed the description of the CIA documents must be.  He noted that there were many forms of disclosure about the existence of documents, ranging from a Vaughn index that lists and describe the documents, to a “no number, no list” response that acknowledges the existence of documents (and thus reveals more than a Glomar response) but reveals nothing about them.  He added that a “no number, no list” response “would only be justified in unusual circumstances, and only by a particularly persuasive affidavit,” but left open the possibility that the CIA could maintain that the vast majority of responsive documents needn’t even be identified, much less disclosed.

In my preview of this case I wrote that an outcome of this sort “would be a way for the court to avoid indulging the governments’ manipulation of the secrecy system by holding that there has been official acknowledgment of CIA involvement, while at the same time avoiding most if not all of the national security costs of doing so – perhaps a sensible first step in a tricky area of law that will recur.”  I stand by that judgment, but I note that the decision is not yet a victory for transparency.  The Court’s imprimatur on the notion that the CIA “has an interest in” and thus has documents about the USG (as opposed to CIA) drone program doesn’t increase transparency one bit – everyone already knew that.  Transparency is only enhanced to the extent that the CIA must reveal information about the documents it possesses, and perhaps disclose some of those documents.  But on remand the CIA could, consistent with Judge Garland’s opinion, disclose very little about even the existence of relevant documents.  One can imagine, for example, the CIA disclosing nothing at all about its own drone program, and only disclosing the existence of documents that both (a) concern its intelligence support for DOD drone strikes (or other non-CIA-operation information about drones strikes, such as comments on drafts of public speeches), and (b) do not reveal classified information.  In other words, a very short and very general Vaughn-like index that describes relatively uninteresting documents combined with a sweeping “no number, no list” response.

If that is the outcome of this case – and I think it is quite possible – then the ACLU will have lost the case, narrowly conceived, even if its victory in this appeal helps its overall strategy of informing and influencing public debate and ratcheting up the pressure on the government to be more transparent through other means.  We will see.