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Yesterday's Oral Argument in ACLU v. CIA

Wells Bennett
Friday, September 21, 2012, 10:02 AM
Here’s your three-part read-out from yesterday’s argument in ACLU v. CIA, or the FOIA action seeking CIA documents about drones. By way of summary, a three judge panel of the D.C. Circuit, comprised of judges Merrick Garland, David Tatel, and Thomas Griffith, squinted pretty hard at the government’s claims---chiefly those about alleged ambiguity in officials’ statements regarding the United States’ use of drones, and the CIA’s involvement in drone strikes.

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Here’s your three-part read-out from yesterday’s argument in ACLU v. CIA, or the FOIA action seeking CIA documents about drones.
By way of summary, a three judge panel of the D.C. Circuit, comprised of judges Merrick Garland, David Tatel, and Thomas Griffith, squinted pretty hard at the government’s claims---chiefly those about alleged ambiguity in officials’ statements regarding the United States’ use of drones, and the CIA’s involvement in drone strikes.

1.      Official Acknowledgement

As Jack explained earlier, a win for the ACLU on the appeal’s key issue---a judicial ruling that the government officially has acknowledged the CIA’s involvement in drone matters---may not lead to disclosure.  The court of appeals could return the case to the district court, with instructions to allow waiver of a Vaughn index, to the extent that producing one would reveal properly classified information; or to require such an index, while allowing the government to redact entries that, if disclosed, might also reveal classified material.   (I think another possibility is a remand to the district court without such specific instructions, but reckon that, in such that event, the district judge nevertheless will opt for a variant of the two approaches Jack identified.)
The question, then, is what the three judges will make of public statements by Obama Administration personnel about drone strikes and the CIA.  Gauging by yesterday’s back-and-forth, the panel seemed vastly more skeptical of the government’s position than the ACLU’s.
To be sure, the panel vigorously engaged the ACLU’s lawyer, Jameel Jaffer.  It pressed him about current case law.  This does not view public statements by former government personnel as amounting to “official acknowledgment,” for FOIA purposes.  Jaffer told the panel that his isn’t a “former official” case, but one in which the disclosing official (Leon Panetta) simply migrated from one top national security post (Director of Central Intelligence) to another (Secretary of Defense).  The judges also closely examined four pronouncements by Leon Panetta, made during his tenure as the Director of the Central Intelligence Agency, and the ACLU’s claim that these officially admit to the CIA’s involvement in drone strikes.  Judge David Tatel seized on Panetta’s appearance before the Pacific Council on International Policy.  There, Panetta had not been asked about the CIA specifically, but instead about the President’s national security strategy; and in any case, Judge Tatel observed, Panetta stopped short of saying that the CIA played a role in drone strikes.  For Jaffer, the context was key, and it left no doubt as to the intelligence chief’s meaning.  At the Council, Panetta had been introduced as DCIA, and talked about his tenure as DCIA.  And, Jaffer argued, to the extent that this or any other of Panetta’s four DCIA-era statements were ambiguous, his subsequent remarks as Secretary of Defense, together with remarks by President Obama, make the official acknowledgement crystal clear.  Tatel followed up with a question about the burden of proof: if the four statements are too ambiguous for the court to find official acknowledgement, doesn’t that mean the plaintiffs lose?  Though flavored with some doubt, the question seemed to land as a gift in Jaffer’s lap. In answering, he emphasized both that Panetta’s four public remarks were plain enough, and that they occurred alongside what appeared to be a concerted executive branch effort to bolster its appearance through deliberate, repeated leaks.  This seemed to mark the day’s toughest sledding for the ACLU’s attorney---who nevertheless managed to underscore court that, although the FOIA action has a narrow focus (the meaning of certain statements by the former head of the CIA), the issue for the public is far bigger: in court, the executive branch won’t acknowledge the CIA’s involvement in drone matters.  But it will talk about them to the media and others, when necessary.
It was tougher sledding for the government.  Judge Tatel wondered why, if the head of the CIA on Monday says “we use drones,” and then, on Tuesday reports that “so and so terrorist was killed by a drone,” the court couldn’t read the two statements together, as an official acknowledgement.  It is not every day that the Department of Justice sends the Acting Assistant Attorney to argue its case, but yesterday, it did.  That lawyer, Stuart Delery, countered that the case law sets a high standard for official acknowledgements, and that Tatel’s hypothetical, two-part statement did not explicitly concede anything about CIA involvement in drone strikes.
Then there was Judge Griffith: he asked Delery about the ACLU’s allegation of a pattern of opportunistic leaking by government personnel.  Delery strongly denied the existence of any such pattern, and emphasized the difference between alleged leaking and the fact of it.  But he admitted that no past cases had involved allegations of such pervasive, sanctioned leaking, while still emphasizing that a loose official acknowledgement regime would take the court (and the country) to a bad place.  Officials would refrain from speaking out on sensitive matters, the lawyer said, and the public would go uneducated.  Judge Garland completed the trifecta, by parsing each of Panetta’s key statements with Delery, and finding ways in which they indeed could be read as officially acknowledging at least something.  Take Defense Secretary Panetta’s reference to the use of “Predators” during his time at the CIA.  Delery parried, calling the comment an “ambiguous aside.” (More about Judge Garland in a minute.)
All of which is to say: if the panel harbored deep feelings of doubt regarding the official acknowledgement issue, it surely didn’t express them loudly.  I count that as at least one reason to believe that Jack’s prediction might yet come to pass.

2.      Motion to Remand Redux

Remember the government’s motion to remand?  It came up again, in a brief exchange between Judge Garland and Delery.
Initially, the Appellee argued that the matter should be returned to the district court for additional proceedings, in light of developments in a related FOIA action before the Southern District of New York.  As in this case, plaintiffs in the Southern District also sought documents about the CIA’s involvement in drone strikes. But there, the government had acknowledged the CIA’s possession of speeches by White House Counterterrorism Advisor John Brennan and Attorney General Holder—and of, maybe, some other documents too.  (At the same time, the CIA opted for a “no number, no list” response as to all other materials not covered by its belated acknowledgment.)  Thus the government sought (but the court of appeals rejected) a remand, so that attorneys could sort out the effect, if any, that disclosures in the New York case might have upon the case before the D.C. Circuit.  Only then did the government file its response brief, and urge affirmance of the judgment below.
When asked by Judge Garland, Delery confirmed that just as in the New York case, the CIA possesses documents responsive to requests by plaintiffs in this case---both speeches by high-ranking officials and other documents related to the U.S. Government’s use of drones.  This prompted Judge Garland to ask whether the CIA had chucked its Glomar response as to these materials.  Delery’s answer?  “Yes.” 

3.      Judge Garland, Waiver, and The Evident Disconnect Between the Cole Declaration and Public Statements by Administration Officials about Drones

Judge Garland did not limit himself to questions about the case’s procedural posture.  He also asked about the origins of the government’s freshly minted “no number, no list” approach.  And, in another line of inquiry, he seemed to highlight a problem in the government’s case.
During Jaffer’s presentation, the judge repeatedly asked about the ACLU’s strongest arguments---or rather, the arguments that struck Judge Garland as most persuasive.  He was keen to know whether, by not stressing such arguments now, Jaffer and company had waived them.  As DCIA, Panetta had described drone strikes as highly effective, and especially helpful in minimizing collateral damage.  But Panetta could not have known about the drones’ precision, unless he had read some potentially-FOIA-responsive documents about drone strikes, right? Was the ACLU backing away from that claim? Jaffer answered no.
Likewise, both the Secretary of Defense and the President had acknowledged the U.S. drone program. That, the judge strongly implied, seemed to cast doubt on claims made by the Clandestine Service’s Information Review Officer, Mary Ellen Cole.  In a declaration filed with the district court, Cole had said that to acknowledge either the CIA’s possession of records about drones, or even the CIA’s intelligence interest in drone strikes, would harm national security.  But neither can be true, Judge Garland seemed to suggest: if indeed Panetta can make clear that he’s reviewed collateral damage reports, it cannot possibly harm national security to acknowledge the existence of some responsive records.  And equally, if Panetta and President Obama can publicly admit to the existence of some government-run drone program, it shouldn’t harm national security to acknowledge an intelligence interest in that program, either.
The same held true about John Brennan’s speech, as Judge Garland saw matters.  During the speech, Brennan pointed to the intelligence community’s provision, to targeting personnel, of up-to-date information regarding a whether a targeted individual is in fact a member of al Qaeda.  The White House adviser even went so far as to say that in making its targeting decisions, the government called on the “full range” of our nation’s intelligence capabilities.  Judge Garland openly doubted that the government could exercise the “full range” of our intelligence capabilities, and not involve the CIA.  Thus he asked Jaffer whether the ACLU did not wish to pursue an apparent inconsistency between Cole’s claims and Brennan’s.  Again Jaffer answered in the negative, while emphasizing his main argument: that, while serving as DCIA, Leon Panetta made four statements that officially acknowledged the CIA’s involvement in drone strikes.
Judge Garland’s questioning struck me as important, considering assertions Cole makes elsewhere in her declaration---for example, that to acknowledge the mere existence of drone-related records would reveal sensitive sources and methods.  How should a court treat those, given that the others seemed to contradict public statements by Panetta and Brennan? Should a court defer to Cole’s other claims?
It will be interesting to see how, if at all, the D.C. Circuit approaches the evident mismatch between the statements of public officials, and the claims advanced by Cole in her declaration.  On this point, Delery acknowledged that Cole’s declaration---filed much earlier in the litigation---was not as detailed as a comparable declaration submitted on the CIA’s behalf more recently, in parallel FOIA litigation in the Southern District of New York.  The government’s attorney said that he would welcome an opportunity to supplement Cole’s declaration at some stage.

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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