Secrecy: FOIA

Appellant Brief Filed in ACLU v. CIA (Drone Program FOIA Request)

By Raffaela Wakeman
Friday, March 16, 2012, 10:36 AM

The American Civil Liberties Union has filed its opening brief in its appeal of the District Court of the District of Columbia's granting of a motion for summary judgment for the Central Intelligence Agency. The case stems from a FOIA request filed by the ACLU on January 13, 2010 requesting government records related to the use of drones in targeted killings. The various government departments with which the ACLU filed the FOIA requests (DOD, DOJ, DOS, and CIA) eventually cited FOIA exceptions 1 and 3 and would neither confirm nor deny that it had any records on the topic.

The government filed a motion for summary judgment and the plaintiffs filed a motion for partial summary judgment. The government's motion was granted and the plaintiffs' denied  on September 9, 2011 in a memorandum opinion by District Judge Rosemary M. Collyer.

The ACLU has two main arguments in its appeal:

  • An agency cannot lawfully provide a Glomar response to protect information that it has already officially and specifically disclosed
  • The CIA's Glomar response is unlawful because the existence of the drone program has already been specifically and officially disclosed.

The District Court case had been against the Department of Justice, the Department of Defense and the Department of State, but they were dismissed as parties prior to the appeal.

The overview of the ACLU's argument is excerpted here:

This FOIA case presents the question whether the CIA can lawfully refuse to confirm or deny the existence of records about a program that has already been acknowledged and discussed by the President, the then-CIA Director, and many other government officials in scores of public statements. It cannot. This Court has allowed a Glomar response only where an agency’s disclosing the existence or non-existence of responsive records would itself disclose information that the agency may lawfully withhold under an enumerated exemption to the FOIA. It has repeatedly emphasized that a Glomar response is inappropriate where the government has officially acknowledged the very information sought to be protected. The government has already acknowledged the existence of the CIA’s drone program. The CIA cannot lawfully refuse to process Plaintiffs’ request on the grounds that doing so would require it to confirm what it has already confirmed.

Indeed, upholding the CIA’s Glomar response here would serve only to harness the Court’s institutional authority to a transparent fiction. Anyone who has followed the debate about the CIA’s drone program knows that the program has been discussed on the record not only by the President and the then-CIA Director but by many other officials as well, and it is plain that any harm to the nation’s security that would result from disclosure of the program has already been inflicted by the Agency itself. Unsurprisingly, many commentators have already observed (and lamented) the increasing chasm between the categorical proposition the CIA advances in this litigation—that the very existence of the Agency’s drone program is a secret—and the numerous, detailed, and often self-serving statements the government has made about the program in other fora. The Glomar doctrine surely does not permit the government to play this kind of double game, still less to enlist the judiciary as a participant in it.

The Court should reverse the judgment of the district court and direct the CIA to process Plaintiffs’ request. In processing the request, the CIA may of course redact or withhold information from responsive records where necessary to protect information covered by any of the enumerated FOIA exemptions—and, after the completion of processing, Plaintiffs will challenge those redactions if they believe them to be unwarranted. The Agency should not be permitted, however, to reject categorically Plaintiffs’ FOIA request on the meritless basis that disclosing even the mere existence of the drone program would disclose information that the Agency has a right to suppress.

The CIA's brief is currently due on April 16, and oral argument hasn't yet been scheduled in this case.

Two cases related, but distinct, from this one, are worth noting too:  the ACLU has filed suit in a separate case against the DOD and CIA over a FOIA request regarding targeted killings of U.S. citizens. And the New York Times filed suit in December over another FOIA request for the Anwar Al-Aulaqi memo. Both of those cases are on Southern District of New York District Judge Colleen McMahon's docket.