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Thoughts on Today’s Important Drone FOIA Oral Argument in DC Circuit

Jack Goldsmith
Thursday, September 20, 2012, 6:34 AM
Today the D.C. Circuit will hear oral argument concerning the ACLU’s FOIA request to the CIA for records related to the government’s program of targeted killing via “drones.”  Cutting through the statutory and doctrinal niceties, the main issue is whether the CIA may properly give a “Glomar” response to the ACLU’s request – i.e.

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Today the D.C. Circuit will hear oral argument concerning the ACLU’s FOIA request to the CIA for records related to the government’s program of targeted killing via “drones.”  Cutting through the statutory and doctrinal niceties, the main issue is whether the CIA may properly give a “Glomar” response to the ACLU’s request – i.e. a response that neither confirms nor denies whether it has any responsive records concerning targeted killing.  A Glomar response is not proper if the USG has “officially acknowledged” CIA involvement in the drone strikes.  The district court ruled that the government had not officially acknowledged that the CIA (as opposed to the government) had deployed drones.  On appeal, the ACLU and the USG have essentially fought about whether the various official public statements and leaks by the USG about drones constitute an official acknowledgement of CIA involvement in deploying drones.  Below are my thoughts on what is at stake in the case (drawing in part on earlier posts here and here), and speculation on a possible compromise ruling. No USG official has explicitly said that the CIA deploys drones.  Leon Panetta came very close when he silently nodded in assent to CBS’s Scott Pelley’s statement that “You killed al-Awlaki”; and then explained what appeared to be the legal basis for the al-Awlaki operation with the caveat only of not “getting into the specifics of the operation” (emphasis added); and then noted that the President must make a declaration before the killing of a U.S. citizen, on the “recommendation of the CIA Director.”  There are other statements collected in the ACLU brief that come pretty close to the line.  If the D.C. Circuit simply parses each statement one-by-one, it will be a close question whether they constitute official acknowledgment of CIA involvement.  But parsing each statement in isolation is not obviously the right approach.  If one considers the official statements that come close to the line (like Panetta’s, and a few others) in combination with (a) the many purposeful leaks to the press by unnamed senior officials that contain many (often self-serving) details about CIA involvement in deploying drones, and (b) the many (un-denied and unpunished) overt statements by former officials about CIA involvement in the drone program (collected in the ACLU brief), the only reasonable conclusion is that the CIA is involved in the drone program. The USG opposes this approach, of course.  It claims that the court should only credit official acknowledgements (not press reports and statements by former officials) considered individually.  This is probably the right approach under past cases.  But none of the cases cited by the government involve the number of official statements that come so close to the line (if not crossing it), combined with many relevant, purposeful, self-serving leaks (in newspaper stories and many books) over many years about CIA involvement in the program.  In this respect this FOIA case is unlike any other.  There is no doubt that the executive branch has manipulated the secrecy system to permit it to tell the public a lot about a classified program without (as yet) suffering any of the disclosure obligations that normally come from talking about a classified program.  Should the executive branch be able to yield the secrecy stamp in this way and avoid FOIA scrutiny? One could argue (as I have acknowledged in the past) that this approach promotes democratic deliberation because if the leaks and close-to-the line statements entail FOIA obligations, then the government will leak less and say less to the public about its secret wars.  On the other hand, it is obviously dangerous to permit the executive to stamp a program as classified and then talk it up publicly in a way that makes the executive look good but that doesn’t permit public scrutiny of any of the actual facts, especially since FOIA exemption 1 (5 U.S.C.§ 552(b)(1)) is limited to information that is “in fact properly classified” (emphasis added), a provision that was  originally thought to give courts some power to question the scope and validity of the secrecy stamp.  And one might think that holding the government’s feet to the FOIA fire in this context would not dry up deliberation-promoting leaks because the government (or people in it) will still have powerful incentives to leak. A related issue is whether, in light of the disclosures, the government still receives diplomatic benefit from official non-disclosure of CIA involvement.  I accept the idea that it can in theory but am having a hard time understanding what that benefit is in practice.  Even if there is some remaining diplomatic benefit – and here again, the executive has an incentive to say that there is – it is not clear that the diplomatic benefit is large or that it amounts to much more than (for example) making political relations with Yemen and Somalia a tad easier.  At some point, the diplomacy value must give way to the FOIA value – it cannot be that the USG can always avoid FOIA obligations, despite the concerted leaks, because of a secret deal worked out between it and foreign governments. A final point about a possible compromise in this case.  The main issue is whether the CIA can avoid filing a Vaughn index listing responsive documents to the ACLU request by issuing a Glomar response in which CIA neither confirms nor denies its involvement in drone strikes.  Even if the D.C. Circuit concludes that the USG has in effect officially acknowledged CIA involvement in drone strikes, however, it need not follow that the CIA must cough up a list of all responsive documents.  These lists alone – which typically contain document titles, dates, and the like – can disclose quite a lot about what the CIA is doing.  Some of the information in a Vaughn index might reveal or point to sources and methods or other properly classified information that would harm national security.  I see no reason why the D.C. Circuit could not rule that the USG has acknowledged CIA involvement, but then rule that (a) the CIA need not produce a Vaughn index if doing so would disclose properly classified information, or (b) the CIA must produce a Vaughn index but can redact any entries in the index (including all of them) that would, if revealed, disclose properly classified information.  Option (a) was suggested by Judge Easterbrook in Bassiouni v. CIA, 392 F. 3d 244 (7th Cir. 2005) – an approach that, as Easterbrook noted, is entirely consistent with the FOIA statute.  Option (b) is simply a more fine-grained substitute for the Easterbrook approach that would force the government to explain its redactions (and which need be no trickier than the already-tricky process of forcing the government to explain why the documents referenced in a Vaughn index need not be disclosed).  The government might be moving toward a version of this compromise position – especially position (a) – since it has acknowledged in related litigation in SDNY that the CIA possesses some responsive documents to the broader FOIA request in SDNY – namely, public speeches by Harold Koh and John Brennan about drone strikes.  But while the USG has admitted that the CIA has responsive documents it still resists acknowledging CIA involvement in court, which is the real issue in the D.C. Circuit. Either version of this compromise would be a pyrrhic victory for the ACLU, for what it really wants is a full, unredacted Vaughn index.  But the compromise would be a way for the court to avoid indulging the governments’ manipulation of the secrecy system by holding that there has been official acknowledgment of CIA involvement, while at the same time avoiding most if not all of the national security costs of doing so – perhaps a sensible first step in a tricky area of law that will recur.

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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