CIA’s FOIA Response to Records on Targeted Killings by Drones Deficient

 

by Michael Brodheim

 

In March 2013, the D.C. Circuit Court of Appeals held that the Central Intelligence Agency (C.I.A.) could not respond to a Freedom of Information Act (FOIA) request by declining, on national security grounds, either to confirm or deny the existence of any responsive records, when the existence of such records had previously been officially acknowledged.

 

In January 2010, the American Civil Liberties Union (ACLU) submitted a FOIA request to the C.I.A., seeking records pertaining to the use of unmanned aerial vehicles (commonly known as “drones”) to carry out targeted killings. The CIA issued a standard response, declining either to confirm or deny the existence of any such records.

 

Thereafter, the ACLU filed suit against the agency, seeking the release of the requested records. In September 2011, the district court granted the C.I.A.’s motion for summary judgment. See: American Civil Liberties Union v. Dep’t of Justice, 808 F.Supp.2d 280 (D.D.C. 2011).

 

On appeal, the D.C. Circuit held that it was not “logical or plausible” for the C.I.A. to contend that merely disclosing whether or not it has documents about drone strikes would reveal information not previously officially acknowledged. The court came to this conclusion after recounting 1) the president’s public acknowledgement (on January 30, 2012) that the U.S. uses drone strikes against al Qaeda; 2) a similar acknowledgment (on April 30, 2012) by John Brennan, then the President’s counterterrorism advisor; and 3) statements (in 2009) by Leon Panetta, then-Director of the CIA, clearly intimating not only that the CIA has an interest in drone strikes but that it indeed does possess documents on the subject.

 

The D.C. Circuit reversed the judgment of the district court. See: American Civil Liberties Union v. C.I.A., 710 F.3d 422 (D.C. Cir. 2013).

 

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