Secrecy: State Secrets Privilege: Litigation

Appellee Brief Filed in ACLU v. CIA

By Raffaela Wakeman
Monday, May 21, 2012, 4:49 PM

Back in March, we shared the appellant's brief in the D.C. Circuit Court of Appeals case of American Civil Liberties Union v. CIA. The Central Intelligence Agency has filed its respondent brief in that case. The CIA summarizes its argument as follows:

Plaintiffs seek disclosure under FOIA from the CIA of records that relate to the use of unmanned aerial vehicles, or “drones,” to conduct targeted killings of individuals. CIA asserted a “Glomar response,” refusing to confirm or deny whether records responsive to plaintiffs’ FOIA request exist. A Glomar response is appropriate where, as here, acknowledging whether or not responsive records exist is itself covered by a FOIA exemption.

On appeal, plaintiffs have expressly waived any argument that the CIA improperly invoked FOIA Exemptions 1 and 3. Rather, plaintiffs argue only that the CIA’s Glomar response is precluded because the Agency has officially acknowledged that it has records that would be responsive to their request. Plaintiffs also appear to narrow the scope of their request for purposes of this appeal, stating (Br. at 2) that the issue in this case concerns the Agency’s Glomar response as it pertains to records relating to “the CIA’s use of drones to carry out targeted killings,” which appears no longer also to include records about the lethal use of drones by the Armed Forces and any involvement or intelligence interest by the CIA related thereto.

Regardless of whether plaintiffs seek records of any CIA involvement or intelligence interest in U.S. drone strikes generally, or the alleged use of drones by the CIA specifically, or both, the district court properly held that plaintiffs failed to establish official disclosure by the CIA of the existence of any records that would be responsive to such request and that the CIA therefore is not prevented from providing a Glomar response. Instead of citing any direct statements to that effect by an authorized official, plaintiffs rely on vague and ambiguous statements by former CIA Director Leon Panetta and President Obama, none of which expressly acknowledges the information that plaintiffs seek here: that the CIA possesses responsive records relating to drone strikes.

Plaintiffs alternatively suggest that such an official disclosure may be inferred from those statements, particularly if those statements are considered in the context of media reports and statements by other government officials, which purportedly acknowledge the CIA’s involvement in drone strikes. But an official disclosure cannot be premised on speculation or inference by the public or media, or on statements made by unauthorized or unofficial government sources. Accordingly, this Court should affirm the entry of summary judgment for the CIA based on the Agency’s Glomar response.

Oral argument has not yet been scheduled. The reply brief is due on June 4th.