The CIA wants to keep its lethal drones secret, but the Obama administration keeps touting their successes.
The resulting conflict could shed more light on some of the dark arts of modern war.
On Thursday, a three-judge appellate panel sounded somewhat sympathetic to American Civil Liberties Union attorneys who seek CIA documents on the use of drones in targeted killings overseas. Until recently, the CIA has refused to admit even the existence of such documents.
“How would the mere acknowledgment that you have documents . . . disclose something that would harm national security interests?” asked Judge Merrick Garland during oral arguments.
Acting Assistant Attorney General Stuart Delery responded that while the CIA now concedes it possesses drone documents, the spy agency does not want to disclose the “the number, nature and extent.”
Whether it has to will now turn, in part, on whether the U.S. Court of Appeals for the District of Columbia Circuit decides that the Obama administration’s repeated on-the-record and anonymous references to successful drone strikes undercut the CIA’s ability to keep its records secret.
“The allegation here is that there was a strategy of selective disclosures,” Judge Thomas Griffith noted, adding pointedly that the administration has appeared to engage in “widespread and strategic leaking.”
The longer-than-usual, 80-minute oral arguments Thursday marked the latest effort to force disclosure of potentially gruesome or embarrassing wartime secrets. Earlier courtroom efforts have failed to obtain U.S. photos of slain terrorist leader Osama bin Laden and evidence about harsh CIA interrogations, among other touchy subjects.
Drone strikes have become another signature element of America’s war policy in the past 11 years. By public accounts, U.S.-controlled drones have been used to fire missiles at individuals and kill them in half a dozen countries. In Pakistan alone, 313 drone strikes have been reported since 2004, according to a tally by the independent Long War Journal.
The ACLU filed a Freedom of Information Act request in January 2010, seeking documents, including legal opinions that justify the targeted killings, restrictions on who may be targeted, statistics on civilian casualties and geographic areas covered by the drone strikes.
The CIA offered what’s called a “Glomar” response, initially as a way of saying nothing at all. The term refers to a CIA maritime operation from the 1960s, when the Glomar Explorer was built with the secret mission of raising a sunken Russian submarine from the Pacific Ocean depths. A subsequent Freedom of Information case set the precedent that federal agencies could sometimes respond that even acknowledging the existence of relevant documents would give away dangerous secrets.
The ACLU argues that Obama administration officials have already said enough about the CIA drone strikes to undermine the agency’s efforts to maintain a neither-confirm-nor-deny stance.
“We think it’s plain that the CIA involvement has been disclosed,” ACLU attorney Jameel Jaffer told the appellate panel.
A litany of leaked comments, usually attributed to senior administration officials, has lauded the drone strikes. Defense Secretary Leon Panetta, while he was still CIA director in 2010, said the drone strikes in Pakistan have been “the most aggressive operation that CIA has been involved in our history,” and the former California congressman made similar comments in other venues.
“I can’t go into particulars (but) I think it does suffice to say that these operations have been very effective, because they have been very precise in terms of the targeting and it involved a minimum of collateral damage,” Panetta told a Los Angeles audience when asked about CIA drone strikes in May 2009.
Delery, arguing on behalf of the CIA, insisted that none of Panetta’s statements amounted to a specific and official acknowledgement of the drone program.
If the appellate panel sides with the ACLU, a trial judge could end up ordering the CIA to prepare an index of the drone documents in its possession. The legal fight would probably then carry on over questions about the index and, ultimately, the documents themselves.
“This is a technical argument,” Jaffer said, “but it’s an argument about a program with far-reaching consequences.”