WASHINGTON – A federal appeals court Friday rejected the CIA’s claim that it could neither confirm nor deny whether it has an “intelligence interest” in the use of drones, a ruling that could force the agency to disclose limited details about the use of the technology in counterterrorism operations.
The court ruled that a blanket denial is neither “logical nor plausible” after administration officials discussed targeted-kill operations.
The decision followed a lower court’s ruling that the agency did not have to acknowledge drone operations, in response to a Freedom of Information Act request from the American Civil Liberties Union.
“This is an important victory. It requires the government to retire the absurd claim that the CIA’s interest in the targeted-killing program is a secret, and it will make it more difficult for the government to deflect questions about the program’s scope and legal basis,” said Jameel Jaffer, the ACLU’s deputy legal director, who argued the case before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. “It also means that the CIA will have to explain what records it is withholding and on what grounds it is withholding them.”
The Obama administration has been under pressure from Congress and civil liberties groups to be more forthcoming about drone operations, including by providing access to some legal opinions written by the Justice Department that justify targeted killings.
The administration has repeatedly said it will be more transparent about counterterrorism operations.
The ACLU’s case will be returned to the U.S. District Court for another hearing on whether the CIA has documents on drone operations and whether they should be released.
The agency had argued that “it could neither confirm nor deny that it had responsive documents because confirming that it did would reveal that the CIA was either involved in, or interested in, drone strikes (while denying that it did would reveal the opposite),” according to the court.
The appeals court judges found that argument unconvincing and quoted statements by President Barack Obama, CIA Director John Brennan and one of his predecessors, Leon Panetta, on counterterrorism operations. The court said the agency cannot hide behind a claim that drone operations have not been officially acknowledged. And once acknowledged, the CIA could not say it has no interest, the court ruled.
In his opinion for the panel, Judge Merrick Garland said, “Given these official acknowledgments that the United States has participated in drone strikes, it is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain to say that the agency ‘at least has an intelligence interest’ in such strikes.” Garland was an appointee of former President Bill Clinton. “It strains credulity to suggest that an agency charged with gathering intelligence affecting the national security does not have an ‘intelligence interest’ in drone strikes, even if that agency does not operate the drones itself.”
Garland wrote that “the CIA itself now appears to have recognized the indefensibility of its position.” Stuart F. Delery, acting assistant attorney general, said in oral arguments last year that the question of whether the CIA has documents on drones is “not where we’re drawing the line.”
The other judges on the panel were David Tatel, also a Clinton appointee, and Thomas Griffith, who was appointed by former President George W. Bush.
The use of drones has come under increased scrutiny. Earlier this month, Republican Sen. Rand Paul, a possible 2016 presidential candidate, used a 13-hour filibuster to delay Brennan’s CIA nomination to extract a reply from Attorney General Eric Holder that the president does not have the authority to use a drone to kill a U.S. citizen on American soil if the citizen is not engaged in combat.