A Federal appeals court last week ruled that the Central Intelligence Agency must comply with a Freedom of Information Act request for details on the agency’s drone program filed by the American Civil Liberties Union.
The ACLU filed the initial FOIA request in January 2010. In September of the next year, a district court gave the CIA permission to remain silent. The court ruled that the CIA’s drone program was a matter of national security and allowed CIA officials to reply to the query with a Glomar response. In matters of national security or privacy, Glomar responses to FOIA requests give government agencies the power to “neither confirm nor deny” the request.
The ACLU issued an appeal to the response, and the District of Columbia U.S. Court of appeals sided with the civil liberty organization.
From the ruling:
The CIA has proffered no reason to believe that disclosing whether it has any documents at all about drone strikes will reveal whether the Agency itself — as opposed to some other U.S. entity such as the Defense Department — operates drones. There is no doubt, however, that such disclosure would reveal whether the Agency “at least has an intelligence interest in drone strikes.”
The court further ruled that because the President has publicly acknowledged the use of drones by U.S. agencies, the “neither confirm nor deny” statute doesn’t stand in the case.
The court cited an answer President Barack Obama gave during a live Internet video forum. Obama had said: “I think that we have to be judicious in how we use drones. But understand that probably our ability to respect the sovereignty of other countries . . . is enhanced by the fact that we are able to pinpoint-strike an al Qaeda operative in a place where the capacities of th[e] military in that country may not be able to get them. So obviously a lot of these strikes have been . . . going after al Qaeda suspects who are up in very tough terrain along the border between Afghanistan and Pakistan.”
The court did rule, however, that the CIA has flexibility in how much information it must reveal about its drone activities. As the Obama Administration has demonstrated a very poor record on FOIA compliance to date, it is feasible that the ACLU will receive the same sort of taunting FOIA response it did late last year when seeking information from the Justice Department on GPS tracking.
The appellate ruling comes amid heightened American awareness of the Federal government’s growing fondness for drones, driven by Senator Rand Paul’s (R-Ky.) questions of whether they could be used against Americans on U.S. soil as well as strong international rebuke over the United States’ drone policy elsewhere.
Ben Emmerson, the U.N. special rapporteur monitoring human rights in counter-terrorism programs, chided U.S. officials for allowing drone strikes to continue in Pakistan where the Nation is not at war.
“As a matter of international law the US drone campaign in Pakistan is therefore being conducted without the consent of the elected representatives of the people, or the legitimate government of the state,” he said. “It involves the use of force on the territory of another state without its consent and is therefore a violation of Pakistan’s sovereignty.”
Emmerson’s criticisms are shared by a number of human rights groups upset at the number of civilian casualties resulting from the Pakistani drone strikes.