Court: CIA denial of drone records a "fiction"
March 15th, 2013
06:25 PM ET

Court: CIA denial of drone records a "fiction"

By Bill Mears

A federal appeals court panel has ruled the CIA must acknowledge the existence of any records related to military unmanned drone strikes aimed at people such as terror suspects overseas.

It called the agency's previous denials "fiction."

The American Civil Liberties Union and other groups had filed a Freedom of Information Act request, but the spy agency - citing national security - refused to confirm or deny it had any such records.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia did not buy the argument, giving the outside groups a partial legal victory Friday.

"The CIA asked the courts to stretch that doctrine too far - to give their imprimatur to a fiction of deniability that no reasonable person would regard as plausible."

The unanimous ruling written by Chief Judge Merrick Garland added that, given "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 the agency at least has an intelligence interest in such strikes."

"The defendant is, after all, the Central Intelligence Agency."

The judges did not immediately order any documents released, but dismissed the government's argument it had the authority to refuse to "confirm or deny" it even had any such records.

And the court did leave some wiggle room for government officials to shape the scope of any release or acknowledgment.

"Just how detailed a disclosure must be made, even in an index, is another matter," said the court.

"Conceding (or being compelled by the court to concede) that the agency has some documents," still allows the CIA to assert that "any description of those documents would effectively disclose validly exempt information," the ruling said.

"There may be cases where the agency cannot plausibly make the former argument with a straight face, but where it can legitimately make the latter."

Nonetheless, civil liberties groups applauded this initial ruling in the case in their favor.

"This is an important victory," said Jameel Jaffer, ACLU's deputy legal director. "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."

The agency offered a brief reaction. "The CIA does not, as a rule, comment on matters before the courts," said spokeswoman Jennifer Youngblood.
The Obama administration now has the option of asking the full appeals court to intervene or taking the case to the U.S. Supreme Court for final review.

The advocacy groups filed suit in January 2010, asking for information about use of the unmanned aerial vehicles in selected strikes on terrorists.
Among those reportedly targeted by the strikes are American-born cleric Anwar al-Awlaki, a top commander in al Qaeda in the Arabian Peninsula.

U.S. officials have privately acknowledged he was killed by Hellfire missiles from a U.S. Predator drone strike in remote northern Yemen in September 2011. That raised larger legal questions about the use of deadly force overseas to kill American citizens who are suspected terrorists.

Officials have walked a tricky legal and political line about their use, especially the toll on civilians caught in the attacks.

"I'm going to attempt to forestall any further questions about potentially covert programs by saying that everything I can tell you about it is on this piece of paper," said White House Press Secretary Jay Carney last month. "And I'm just not going to acknowledge or confirm any of that."

Carney's predecessor, Robert Gibbs - now out of government service - told MSNBC the policy was to keep quiet.

"One of the first things they told me was, 'You're not even to acknowledge the drone program, you're not even to discuss that it exists,'" Gibbs said.

But new CIA Director John Brennan last year did admit the program's existence, saying, "The United States government conducts targeted strikes against specific al Qaeda terrorists, sometimes using remotely piloted aircraft often referred to publicly as drones."

The ACLU argued in court that selected disclosure should have pre-empted the CIA from making claims it did not need to disclose any further information or records on the drone program.

The appeals court noted that in its 19-page opinion, saying "The president of the United States has himself publicly acknowledged that the United States uses drone strikes against al Qaeda."

The judges quoted Obama in January 2012 saying, "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 the 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."

Between 2004 and 2013, Pakistani officials have estimated 2,200 people have been killed in that country alone from drone strikes, about 400 of them civilians. Other independent estimates have put the death total much higher. Pakistani officials have publicly condemned the use of unmanned aerial vehicles.

Before the U.S. court's ruling came out, United Nations counterterrorism investigator Ben Emmerson issued a statement Friday saying the American drone program "involves the use of force on the territory of another state without its consent, and is therefore a violation of Pakistan's sovereignty."

National security experts have said there are practical reasons for a policy of denial for covert programs.

"Covert actions are secret and they are deniable programs by the United States government, and if you talk about it publicly you begin to deny yourself the legal basis to use it as a covert action," said Fran Townsend, CNN national security contributor.

Practical, political reasons exits as well. Governments in Yemen and Pakistan want deniability of their own, to dampen any anti-American anger that might erupt over a classified program of killing operating within their borders.

The case is ACLU v. CIA (11-5320).

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Filed under: CIA • drones • Intelligence
soundoff (33 Responses)
  1. seo

    Its excellent as your other articles : D, thankyou for posting . "Music will be the soul of language." by Max Heindel. seo http://fiverr.com/twnseobacklink

    April 24, 2013 at 11:02 am | Reply
  2. stormonyou

    Pilotless aircraft save US lives. they do a great job at reduced pricing. Build more and fly high. You towels shall whine to the dirt pile!!!! Civilians die during wars especially when fighting an enemy that routinely hides behind the skirts of women as do the arabs. Gravity remains in force, drones are good medicine,

    March 19, 2013 at 10:25 pm | Reply
  3. Navyvet

    I'm thinking a 10 GA with Magnum Loads & steel shot would do a hell of a number on the engine or FLIR dome of a unmarked drone flying over someone's property. They have their ways and I have mine! Duck Blinds aren't just for ducks anymore!

    March 17, 2013 at 3:59 pm | Reply
    • Quince Edwards ESQ

      Im not mad at that brother! Drones are a new form of cowardice

      March 18, 2013 at 7:28 am | Reply
      • Carlson

        Thank you, Quince. How true that rings! Those filthy creeps who operate those cursed drones are nothing but sniveling cowards, plain and simple!

        March 18, 2013 at 3:14 pm |
    • George

      They probably fly too high to hit with a shotgun.

      March 18, 2013 at 1:59 pm | Reply
  4. bobcat in a hat©

    @chrissy, banasy, saywhat – This is discrimination. Why are you leaving me out? I have been one of your faithful aliases too. I am a Muslim and I leave anti western comments as well. Don't you remember when the four of us were the only ones posting comments, talking to each other. It is so difficult for one person to keep the conversation going between so many aliases. But I did it. I have nothing else to do. None of my aliases have a real job but it's great to receive welfare money from infidels under multiple aliases.

    March 17, 2013 at 1:05 pm | Reply
  5. chrissy

    I went to my mosque but nobody would know that I am a Muslim when I post anti western comments.

    March 17, 2013 at 12:40 pm | Reply
    • banasy©

      Hi Chrissy – Me too. I have convinced myself that nobody is smart enough to figure out that I am a Muslim who is posting anti western comments. Actually, I am you and you are me- chrissy and banasy are two of my aliases. And I like talking to myself.

      March 17, 2013 at 12:43 pm | Reply
      • saywhat

        chrissy and banasy – Don't leave out. I am a part of the same charade. I am a Muslim, I post anti western comments too. And I am one of your other aliases. And by the way bin Laden did not die in Pakistan because Pakistan is the Lala land where terrorist check in and are guaranteed 100% safety. These Americans are ruining our business by saying Bin Laden was killed in Pakistan.

        March 17, 2013 at 12:47 pm |
  6. CIA

    The CIA is monitoring these comments.

    March 16, 2013 at 6:37 pm | Reply
  7. KEVIN

    And we are going to allow US law enforcement to use these drones on our own people ? Do you know how insane that is ? Do you know how much trouble that is going to stir up with the US civilians ? We are already living in a para-military gastapo style of law enforcement now with profound violation of privacy. We are asking for a miltary uprising from our citizens

    March 16, 2013 at 6:20 pm | Reply
    • KC

      Move to Canada if you dont like it. Do not see you enlisting to take the place of that drone

      March 16, 2013 at 9:39 pm | Reply
    • Navyvet

      You know how easy it is to make a guided missle type RC plane with a video camera and 00 Buck in the explosive charge? metal reinforcement on bottom to preclude civilian casualties and fly it under the drone. You gotta just fly it close enough to the drone orbiting over your neighborhood and detonate. No more drone! RC suicide plane restores the American way and privacy is restored, just watch for falling debris!

      March 17, 2013 at 3:55 pm | Reply
  8. john sydeny fiorvante

    eyes and eye wear are compromised wipe twice.

    March 16, 2013 at 3:26 pm | Reply
  9. George Patton

    Drones? What drones? Pakistanis are imagining too much.

    March 16, 2013 at 2:29 pm | Reply
  10. drones luv pakis

    since when does US cares for paki sovereignty..???if they cared would have humiliated paksi by the OSAMA RAID..????and since when did pak become sovereign..?? they area beggar outfit run by mafia that exports terror and survive by begging from US...US never cared for Un it cares only to protect US from terror infested hellholes like pak...OBAMA THE NOBEL PEACE PRIZE WINNER is the strongest supporter of drone strikes to kill paki terrorists..regardless of UN...

    March 16, 2013 at 1:36 pm | Reply
  11. Bangash

    This is American way of dealing with the world and Drone is just another killing machine American using all over the world. Being a master of the world has a licence to kill any one any where in the world and even now thinking of its use in America too. No doubt 70% Americans have opposed this sensless killing all over the world including Iraq and Afghanistan but this war mongers face project whole American nation as just baby killers. This is indeed very stupid that trillions of dollars of tax payers money is bing spent in baby killing, and in return earning just hate and humiliations. Now it is a time for Americans as a nation to decide whether they should continue baby killing in new millinium too or listen to American public opinion for a CHANGE for which obama had been elected as President of USA.

    March 16, 2013 at 11:45 am | Reply
    • George Patton-2

      Thank you, Bangash. Nothing could be closer to the truth!!!

      March 16, 2013 at 7:21 pm | Reply
    • 1371usmc

      If you had a clue you would know that the drone program is highly supported by the American public.

      March 17, 2013 at 4:02 am | Reply
      • George Patton-2

        Which, in turn, proves just how successful the right-wing news media has been at brainwashing the American public, 1371usmc. Unfortunately, you're right!

        March 17, 2013 at 1:48 pm |
      • Bangash

        My information about American public opinion is based on media reports and opinion polls. If this is wrong then it is tragic or according to George Patton-2 through media they brainwash the way WMD in Iraq was projected the main reason for invasion which later proved wrong. Any way ball is in American public court and now no other option except to call spade a spade.

        March 18, 2013 at 10:41 am |
  12. Mr. T

    Pakistanis wear the military uniform in the day and moonlight as terrorists at night disguised as farmers. What records? It's the same person disguised either as a Pakistani soldier or as a farmer and acting as a terrorist nonetheless. The lines between soldier or terrorist in Pakistan are so blurred. Smoke them and move on - no need to spend precious time on keeping worthless records.

    March 15, 2013 at 7:18 pm | Reply
    • Bangash

      Mr T believe me hardly 1% of the population at border between Afghanistan and Pakistan are involved in war against NATO and 99% are just silent spectators and see both sides part of Americans war game in this region for the last more then three decades. So do not misguide others and see how many Pakistani soldiers have so far been killed in war against terrorism.

      March 16, 2013 at 11:57 am | Reply
      • Mr. T

        Islamists dressed as military personnel blow up American soldiers. That happens pretty much every week. Then they dress up as farmers to escape arrest. When drones take these "farmers" out, you would like to complain. Who are you trying to misguide here?

        March 16, 2013 at 3:41 pm |
      • George Patton

        in America we call them guilty by association.

        March 16, 2013 at 10:43 pm |
      • 1371usmc

        You sleep with your goats your going to get flees

        March 17, 2013 at 4:04 am |
      • Navyvet

        Not all goats have fleas, I wash mine with Harts 3 n 1 Flea & Tick Shampoo! Kills eggs too! Just sayin', go easy on the goats folks!

        March 17, 2013 at 3:47 pm |
  13. Redneck Canuck

    Apparently its tough to tell the difference between a terrorist and a farmer because they both carry AK-47's while walking in a field. I would say the soldiers there and the vets that were there on the ground had the same problem; cuz farmers carry assault weapons at home all the time?! You cant distinguish a farmer from a jihaddi because most jihaddis that are locals are farmers. The UN is out of touch and the CIA is omnipotent so who cares?

    Letting God figure out who the good and bad guys are is a tough job but someone has to do it.

    March 15, 2013 at 6:59 pm | Reply
    • wjmccartan

      Evidently Redneck, you have no sense of right or wrong so you wouldn't care about the slaughter of ordinary civilians half way around the world. Of course the C.I.A. doesn't want us to know how many people they're killing day after day! We the public do deserve to know what these thugs are up to over there!

      March 15, 2013 at 7:30 pm | Reply
      • 1371usmc

        Their are something things the general public has no need to know. Now shut up and enjoy the peace that our military has provided.

        March 16, 2013 at 7:40 am |
      • George Patton-2

        What peace are you talking about, 1371usmc? Ever since 2001, this country has been constantly at war and will continue that way as long as we keep electing right-wing fanatics into office!!!

        March 17, 2013 at 1:52 pm |

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