Jus ad Bellum/UN Charter/Sovereignty

John Brennan’s Speech and the ACLU FOIA Cases

By Jack Goldsmith
Tuesday, May 1, 2012, 11:12 AM

John Brennan's speech yesterday was important for at least three reasons: (1) it marked the first official White House acknowledgment that “the United States Government conducts targeted strikes against specific al-Qa’ida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones”; (2) it provided a robust defense not only of the legality of targeted killing, but also of the morality, wisdom, and humanity of the practice; and (3) it provided significant detail about the government’s processes and standards for deciding whom to kill  – including a general discussion of the “very high bar” the government imposes on itself in analyzing intelligence to avoid mistakes and the loss of innocent life.  (The speech did not state which agencies are involved in targeted killing, and most notably did not say a word about the CIA.)

Brennan’s speech, taken together with earlier speeches on related topics by top government officials, strikes me as meeting if not exceeding the administration’s “good government” duty to explain to the American people the legality and justification for and operation of its targeted killing program.  I cannot think of any ongoing operation in American military history that has been publicly explained so thoroughly over such a lengthy period of time (please let me know if I am wrong).  Certainly no previous covert or classified program has received such extended public explanation by the government.  One can perhaps argue that our legal system should have more robust accountability constraints on the Commander-in-Chief’s targeted killing practices in an authorized conflict, especially those involving U.S. citizens.  But until Congress imposes such a regime, and especially in light of the political question ruling in the al-Aulaqi decision, the government’s practices are on firm legal ground, and that ground and many other elements of the practices have been explained to the American people.

But that does not mean the government won’t be forced to disclose more information about targeted killing.  It takes a bit of space to explain why.

The ACLU has filed two FOIA cases – one in S.D.N.Y. (which has been joined with a similar suit by the NYT), and one in D.D.C. (and now in the D.C. Circuit) – seeking information on the government’s targeted killing program.  The two cases involve somewhat different record requests related to targeted killing, but the main issue in both cases is whether the CIA can properly file a “Glomar” response that neither confirms nor denies whether it has any responsive records concerning targeted killing.  The D.C. district court held that the CIA’s response was lawful, but on appeal the ACLU has filed a powerful brief that argues that numerous statements by numerous officials have effectively acknowledged CIA involvement in targeted killings, thereby eliminating the justification for the CIA to refuse to acknowledge its role in response to FOIA requests.  Meanwhile, in the New York case, Judge McMahon on April 9 showed some impatience with the government’s request for an extension, noting after granting it: “If government officials can give speeches about this matter without creating security problems, an involved agency can.”  In seeking another request for an extension (which Judge McMahon granted after reading a classified declaration by DNI Clapper), the government noted that its position in the FOIA case was “being deliberated at the highest level of the Executive branch.”  The government’s appellate brief in the D.C. Circuit case and its response in the S.D.N.Y. case are due on the same day: May 21.

The CIA’s position in the D.C. case – which will probably be repeated in the S.D.N.Y. case unless there is a shift in the government’s position – is that a Glomar response is justified because “whether or not the CIA was involved in drone strike operations . . . is a classified fact.”  The ACLU responds that a Glomar response in this context is unwarranted because many public statements by present and former government officials make clear CIA involvement in targeted killing.  Reading the summary of statements in support of this claim in the ACLU brief, I am left with the following impressions.  None of the current government officials has overtly acknowledged CIA involvement in drone strikes.  But Leon Panetta came pretty close several times, and may have crossed the line when he silently nodded in assent to CBS’s Scott Pelley’s statement that “You killed al-Awlaki”; and then explained what appeared to be the legal basis for the al-Awlaki operation with the caveat only of not “getting into the specifics of the operation” (emphasis added); and then noted that the President must make a declaration before the killing of a U.S. citizen, on the “recommendation of the CIA Director.”  More broadly, while most of the other statements by current government officials are an eyelash or more short of official acknowledgment of CIA involvement, the only reasonable overall conclusion from these statements, in context, is that the CIA is involved in the drone program.  Also relevant are what I once described as “continuous leaks, attributed to government officials, of many (self-serving) details about the covert operations and their legal justifications” – including details about CIA operations.  (For a more recent and typically sharp-elbowed summary, see this post by Glenn Greenwald.)  In addition, former officials have made overt statements about CIA involvement in the drone program (some of which are collected in the ACLU brief).  Finally, the administration has been boasting in the last week, not only about the Bin Laden killing, but also about the president’s more general aggressive targeted killing campaign, which everyone knows involves the CIA.

What to make of all of this?  I have these reactions:

  • I am of two minds about the government’s transparency efforts in this area.  Mostly I am filled with admiration for its public explanation and defense of its secret military actions, including targeted killings; the administration in this respect deserves great credit.  Much less attractive, and weakening its good acts, are the opportunistic leaks and credit-taking winks, although it is possible that the leaks (as opposed to the winks) come from lower level officials for which the White House is not responsible.
  • As I have noted before, there can be good diplomatic reasons for the government to avoid official acknowledgment of a covert program even if the program is widely known publicly.  What is becoming harder and harder to understand is how the government can still get diplomatic benefit from non-acknowledgment of CIA involvement given the statements and context summarized by the ACLU.  At this point I do not get what valid goal is served by the government’s categorical non-acknowledgment of CIA involvement.   But I am sure there is some diplomatic argument, and I suppose that DNI Director Clapper’s classified submission to Judge McMahon explained or alluded to some of these diplomatic niceties.  The hard call for the judges in both FOIA cases will be whether to credit the government’s representations about the importance of maintaining technical covertness in light of the government’s winking and nodding and leaking and credit-taking.
  •  I also do not fully understand why the ACLU is pushing so hard for official acknowledgment of CIA involvement when everyone knows about CIA involvement.  What is the public value, at this point, of official acknowledgment?  Perhaps the ACLU wants to demonstrate the inanity of government secrecy rules.  More likely, they hope to gain yet more information about CIA involvement from Vaughn declarations (which give the name and description of each responsive government record) that would be required from CIA were it to drop or lose on its Glomar response.  As I explained in my book, this strategy – of gleaning information from Vaughn declarations, and then using that information for yet-more disclosure requests – worked well for the ACLU in its FOIA litigation over the CIA’s interrogation program.