Targeted Killing

The Significance of DOJ’s Weak Response to Rogers’ Acknowledgment of CIA Drone Strikes

By Jack Goldsmith
Friday, February 15, 2013, 10:09 AM

In an interview last weekend, Congressman Mike Rogers, the Chairman of the House Intelligence Committee, gave unambiguous acknowledgment of CIA involvement in drone strikes.  The ACLU attached the interview in a letter to the D.C. Circuit in connection with its FOIA request to CIA for documents about CIA involvement in targeted killing by drone strikes.  The Obama administration has now filed a weak response on the significance of the Rogers interview.  The government does not deny that Rogers acknowledged CIA drone strikes.  Rather, it asserts that the D.C. Circuit “has repeatedly held that statements made by members of Congress do not constitute official disclosure by an Executive Branch agency.”  But the four cases cited by DOJ do not stand for this proposition.

In brief: Frugone v. CIA, 169 F.3d 772 (D.C. Cir. 1999), stated that “we do not deem ‘official’ a disclosure made by someone other than the agency from which the information is being sought.”  But the case involved a letter from the Office of Personnel Management, not a statement by a member of Congress, much less the Chairman of the committee overseeing the agency in question.  In Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990), the government argued that a disclosure in the Church Commission Report did not constitute official acknowledgment, but the Court did not reach this issue and instead rejected the FOIA request because it concerned a different time period than was covered by the Report.  Salisbury v. United States, 690 F.2d 966 (D.C. Cir. 1982), stated that “bare discussions by . . . Congress of NSA’s methods generally cannot be equated with disclosure by the agency itself of its methods of information gathering,” but the point there was that revelation of NSA monitoring did not acknowledge particular methods of monitoring.  Finally, Wilson v. CIA, 586 F.3d 171 (2d Cir. 2009) (which is neither a CADC case nor a FOIA case), held only that a private letter that the CIA sent Valerie Plame Wilson and that she, a former CIA employee, authorized Representative Inslee to publish in the congressional record, could not constitute official acknowledgment of her service with CIA.  The government failed to cite (perhaps because it is unpublished) the per curiam opinion in Hoch v. CIA, 907 F.2d 1227 (D.C. Cir. 1990), where the Court stated (in the context of analyzing official acknowledgment for FOIA purposes) that “[w]e cannot so easily disregard the disclosures by congressional committees,” and noted that “this circuit has never squarely ruled on this issue” before ruling on a narrower ground.

What (if anything) might the D.C. Circuit do with the Rogers statement?  I have explained before the possible harms that can flow from acknowledging even publicly known programs.  But as I have also said before, I do not see the particular harm from mere acknowledgment of CIA involvement in drone strikes (as opposed information about particular operations, countries, or strikes).  In any event, the Chairman of a congressional committee charged by statute with overseeing covert actions by the CIA has now clearly publicly acknowledged CIA involvement in the strikes.  After the Rogers statement, which comes on top of many open Executive-branch insinuations (if not much more) of CIA involvement in drone strikes, I do not understand what further harm could come from judicial or Agency acknowledgement.  Moreover, the Court would not need to rule broadly about the significance of congressional statements for FOIA cases to conclude that Rogers’ statement, following the Executive branch ones, counts as official acknowledgment.

But what if the Court does rule that the USG has acknowledged CIA’s involvement in drone strikes?  What would the ACLU gain, since the whole world already knows this fact?  Such a ruling would require CIA to file a Vaughn index listing responsive documents to the CIA request.  But at that point the government would have further legal options for non-disclosure.  As I once explained:

Even if the D.C. Circuit concludes that the USG has in effect officially acknowledged CIA involvement in drone strikes, however, it need not follow that the CIA must cough up a list of all responsive documents.  These lists alone – which typically contain document titles, dates, and the like – can disclose quite a lot about what the CIA is doing.  Some of the information in a Vaughn index might reveal or point to sources and methods or other properly classified information that would harm national security.  I see no reason why the D.C. Circuit could not rule that the USG has acknowledged CIA involvement, but then rule that (a) the CIA need not produce a Vaughn index if doing so would disclose properly classified information, or (b) the CIA must produce a Vaughn index but can redact any entries in the index (including all of them) that would, if revealed, disclose properly classified information.  Option (a) was suggested by Judge Easterbrook in Bassiouni v. CIA, 392 F. 3d 244 (7th Cir. 2005) – an approach that, as Easterbrook noted, is entirely consistent with the FOIA statute.  Option (b) is simply a more fine-grained substitute for the Easterbrook approach that would force the government to explain its redactions (and which need be no trickier than the already-tricky process of forcing the government to explain why the documents referenced in a Vaughn index need not be disclosed).

Even if ACLU wins on the “official acknowledgment” issue, in short, it has a long way to go to get the records it seeks.  But as we have seen more than once in the last decade, even heavily redacted Vaughn indexes can reveal important information and constitute the basis for further FOIA requests and further disclosures (through FOIA or other means).