Targeted Killing

D.C. Circuit Rejects Glomar Response in ACLU/CIA Drone FOIA Suit

By Steve Vladeck
Friday, March 15, 2013, 10:21 AM

Pretty big decision by the D.C. Circuit this morning, reversing the district court's dismissal of the ACLU's drone-related FOIA suit against the CIA on the ground that the Agency's "Glomar response" was not justified. (Jack previewed and Wells recapped the oral argument back in September.)

As Chief Judge Garland wrote for the court,

Given [the various] official acknowledgments that the United States has participated in drone strikes, it is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain to say that the Agency “at least has an intelligence interest” in such strikes. The defendant is, after all, the Central Intelligence Agency. And it strains credulity to suggest that an agency charged with gathering intelligence affecting the national security does not have an “intelligence interest” in drone strikes, even if that agency does not operate the drones itself.

. . .

[G]iven [such] statements by the Director, the President, and the President’s counterterrorism advisor, the Agency’s declaration that “no authorized CIA or Executive Branch official has disclosed whether or not the CIA . . . has an interest in drone strikes,” is at this point neither logical nor plausible.

Hardly the end of the matter, since CIA can still invoke the various exemptions to FOIA on remand. But still, a pretty big deal, in my view, for the D.C. Circuit to preclude a Glomar response based upon the kinds of public acknowledgments documented by Chief Judge Garland...