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Drone Stories, the Secrecy System, and Public Accountability

Jack Goldsmith
Thursday, May 31, 2012, 8:03 AM
Both the NYT Becker-Shane “Kill List” story and the Klaidman book excerpt have implications for the pending ACLU FOIA suit in CADC, which seeks CIA records on CIA drone strikes.

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Both the NYT Becker-Shane “Kill List” story and the Klaidman book excerpt have implications for the pending ACLU FOIA suit in CADC, which seeks CIA records on CIA drone strikes.  (It also has implications for the broader ACLU FOIA case in SDNY, but I set those aside here.)  The story and the excerpt are based on interviews with dozens of current and former Obama advisors.  They contain fine-grained details about the CIA’s involvement in drone strikes, internal USG processes and deliberations concerning the CIA strikes, internal USG criticisms and defenses of the CIA strikes, and the consequences of the CIA strikes. At the same time that many officials are talking to Becker and Shane and Klaidman about the CIA drone strikes in the hope that the journalists will report what they say, the USG maintains that the CIA can neither confirm nor deny that it has responsive records about its involvement in drone strikes.  The USG’s position is that such a Glomar response is appropriate because there has been no official acknowledgment of CIA involvement in drone strikes, and “whether or not the CIA was involved in drone strike operations . . . is a classified fact.”  (Note that some of the dozens of officials who spoke to Becker and Shane and Klaidman talked about this classified fact and thus probably violated the law.  I continue to be surprised, obviously naively so, that some officials leak classified information practically openly while the government is prosecuting other officials for violating classified information disclosure rules.) It is settled law in the esoteric world of FOIA litigation that unacknowledged media reports about a classified program do not by themselves defeat the Glomar defense, and that the USG might have good diplomatic and related reasons for maintaining a Glomar defense even if a classified program is publicly known.  As the USG said in its brief (citations omitted):
The existence  of media reports based on unsourced comments and other unofficial statements that relate to the information that a FOIA requester seeks from the  Government  does not  diminish  the  importance  of a  Glomar response by  an agency,  particularly in the  area of national security and foreign affairs.  That is because, “[a]s a practical matter, foreign governments can often ignore unofficial disclosures of CIA activities that might be viewed as embarrassing or harmful to their interests.”
See also Afshar v. Department of State (CADC) (“Unofficial leaks and public surmise can often be ignored by foreign governments that might perceive themselves to be harmed by disclosure of their cooperation with the CIA, but official acknowledgment may force a government to retaliate.”); Phillippi v. CIA (CADC) (original original Glomar case) (“public confirmation of the results of the project might publicly humiliate the Soviets. . . . In the world of international diplomacy, where face-saving may often be as important as substance . . . .”) The basic question before the CADC is whether this rationale applies to the CIA program.  There are actually at least two questions here: (1) Has the USG officially acknowledged CIA drone strikes?; and (2) Even if the USG has not officially acknowledged CIA involvement in the strikes, should it be required to do so in light of its manipulation of the secrecy system through extensive opportunistic leaks?  On both issues I find myself increasingly in the ACLU camp. I have previously explained why I believe the USG has come close to the line of official acknowledgment, and perhaps crossed it, in its public winks about the CIA drone program.  The USG brief does a decent job of arguing that none of the many administration hints and disclosures about the CIA program is an official acknowledgment.  But if one steps back from the particulars, the global picture is one of a concerted and indeed official effort by the USG to talk publicly about and explain the CIA drone program – almost always in a light favorable to the administration, or at least to the person or interest of the person who is speaking to the reporter.  One might plausibly think, additionally, that numerous top USG officials talking to the NYT and Klaidman about the CIA drone program should amount to something like a functional official acknowledgement. But assume the government has not officially acknowledged the CIA drone program, and further assume that foreign governments still receive some benefit from technical non-acknowledgment (an assumption I find increasingly hard to believe).  The second question is whether public accountability under FOIA must inevitably give way, despite the concerted leaks, because of a secret deal worked out between the USG and foreign governments.  The Glomar exemption is not a clear command of Congress; Glomar, and limits on Glomar, are a judicial construction of the first and third FOIA exemptions.  Moreover, none of the previous Glomar cases involved such extensive and concerted and long-term government leaking and winking.  Judges will have to decide – at the dawn of a new era of covert wars – whether the demands of covert action must always swallow the demands of government accountability under FOIA, or whether there is some limit to the government’s ability to invoke covert action, secret diplomacy, and war as a justification for not disclosing information to the American public, especially when the government so manipulates the secrecy system that it defines in order to serve its interests. I increasingly believe there must be some limit.  Protecting the credibility of foreign governments in places where dangerous terrorists lurk is a relative value, not an absolute one; and at some point a government that consistently and extensively leaks information about covert action should lose the protections of Glomar, even if the purposeful leaks do not amount to official acknowledgment.  One relatively easy place to draw a line about disclosure is at the basic and widely known (and practically if not officially acknowledged) fact that the CIA is generally involved in drone strikes.  I do not see any justifiable reason within the logic of covert action why the USG could not acknowledge this simple and well known fact, which would not by itself reveal anything about particular operations, countries, or strikes.  (Whether and when extensive purposeful leaks about covert actions should require disclosure of particular operations, countries, or strikes is a much harder question.) Four final related thoughts:
  • Many people in government think the USG must take a hard line on CIA and drones in the FOIA lawsuits because small disclosures invariably weaken subsequent USG arguments about state secrets or defenses to Freedom of Information Act requests, both as a political and legal matter.  I don’t think this is a defensible rationale for the current combination of FOIA stonewalling and disclosures by leaking, but it is an understandable government concern.  The NGOs that demand more transparency understand the dynamic, and greet every disclosure with demands for more.  The government anticipates this reaction and thus assesses the impact not just of what it discloses, but also of what further disclosures the initial disclosure might entail.  This logic leads the government to disclose less than it could (and perhaps should) in the first place.  An unfortunate equilibrium.
  • One argument in favor of the government’s practice of leaking information about CIA drone strikes while at the same time insisting on (and receiving) full Glomar protection in FOIA cases is that the system allows the USG to tell the American public about what it is up to while at the same time preserving diplomatic confidences.  In other words, leaks about the CIA drone program can be seen as a democratic-accountability-promoting compromise.  Setting aside that government leaks inevitably serve the interests of the leaker, this argument entails that if the Glomar rationale is narrowed as a result of leaks, the consequence in the next round of covert programs will be less government disclosure through leaks and thus less government accountability.  This is an important argument that underscores the complexities in this area.  I am skeptical, however, because I think he government will continue to leak for multiple self-serving reasons, even if Glomar is narrowed in the covert action context.
  • A theme from Power and Constraint confirmed: Whatever one thinks of the merits of the ACLU suit, the ACLU has, beginning with the al-Aulaqi lawsuit (with CCR), continuing with its FOIA litigation, and in conjunction with an aggressive press and prudent bureaucrats, pressured the government to reveal an enormous amount about the drone program.  The American people have an extensive (if not comprehensive or official) picture of the USG drone program, and its costs and benefits.  That is not to say that much more could not and should not be disclosed; it is just to say that we should not be blind to how much more information the public now has compared to the dawn of the al-Aulaqi suit.
  • In an earlier post, I said:  “I also do not fully understand why the ACLU is pushing so hard for official acknowledgment of CIA involvement when everyone knows about CIA involvement.  What is the public value, at this point, of official acknowledgment?”  The answer, I think, is threefold: (i) Vaughn declarations – which would be required if the USG Glomar claim is denied – by themselves provide important information; (ii) Vaughn declarations can be the basis for further disclosures; and, relatedly, (iii) official acknowledgment might make it harder for the USG to avoid uncomfortable questions – like, e.g., the methods by which it calculates civilian casualties.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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