The CIA's efforts to deny the ACLU's FOIA requests for records about the Agency's involvement in drone-based targeted killings continue apace in the U.S. District Court for the District of Columbia. The Agency filed a reply memorandum in favor of summary judgment on the matter in D.D.C. on November 1.
Lawfare readers may recall the March D.C. Circuit decision in this case: Chief Judge Merrick Garland, writing for the court, reversed the district court's dismissal of the ACLU's case, finding that the CIA's "Glomar response"---a response neither confirming nor denying that records exist related to the CIA's involvement in drone strikes---was not proper. (Steve reported on the opinion; Jack also previewed the September 2012 oral argument and Wells recapped it.)
At the time, Steve presciently wrote that it was "[h]ardly the end of the matter, since the CIA can still invoke various exceptions to FOIA on remand." Indeed, in the November 1 memorandum, the CIA substituted a "No Number, No List" approach for the rejected "Glomar" approach---in other words, the CIA will now confirm that it has at least one responsive document, but the Agency still seeks to withhold all additional information. In its March opinion, the D.C. Circuit described the difference this way:
A Glomar response requires the agency to argue, and the court to accept, that the very fact of the existence or nonexistence of responsive records is protected from disclosure. That is conceptually different from conceding (or being compelled by the court to concede) that the agency has some documents, but nonetheless arguing that any description of those documents would effectively disclose validly exempt information. There may be cases where the agency cannot plausibly make the former Glomar argument with a straight face, but where it can legitimately make the latter.
In support of the "No Number, No List" response, the CIA invokes FOIA exemptions 1 and 3, and continues to maintain that the CIA has not officially disclosed the withheld information. Specifically, the CIA claims that "[d]isclosing this information would reveal properly classified information that reasonably could be expected to harm national security and would reveal certain functions of the CIA and intelligence activities, sources and methods."
Responding to Exemption 3, the ACLU had claimed that the scope of the documents the CIA sought to withhold was too broad to qualify as a protected CIA "function" under the CIA Act. In the reply memorandum, the CIA specifically notes its disagreement with a recent district court decision that brought the CIA's FOIA management processes under the ambit of FOIA requests; in any case, the agency argues, the "existence or non-existence of authorities for CIA personnel to engage in drone strikes is much more obviously a 'function' of CIA personnel than the details of CIA’s FOIA processing and information management practices and easily fits within even the narrow interpretation proposed by that decision."
As for the Exemption 1 claim that to release information beyond a "No Number, No List" response would harm national security, the CIA argues that the volume of the documents “would go much further than admitting that the CIA had a mere ‘intelligence interest’ in the topic” and instead “would tend to reveal whether or not the CIA itself has the authority to engage in targeted lethal strikes against terrorists using drones.” Regardless of the CIA's actual involvement, release of the volume and type of documents would be pernicious to U.S. national security under the CIA's theory:
Hypothetically, the revelation that the CIA in particular was carrying out these kinds of operations would confirm or heighten suspicions that the CIA was responsible for particular activities and cause countries to respond in ways that would damage foreign relations and U.S. interests and hinder future operations. And any confirmation that the CIA is not carrying out such operations could reveal gaps in U.S. Government capabilities, leaving terrorists in certain areas with the ability to operate openly.
As its closing salvo, the CIA reiterates that it has not waived any FOIA exemption by officially disclosing direct involvement in drone strikes. Leon Panetta's statements on the matter are too vague to constitute official disclosure, the agency argues; former CIA officials are not entitled to officially disclose any information, and Congress has no authority to disclose information that had been classified by the Executive Branch. "Finally," the agency contends, "the public is ill-served by efforts to force a broad disclosure from the limited public disclosures that have been made" because it would create a perverse incentive to clamp down tighter on all information.