A federal court of appeals handed a victory -- although a very limited one -- to the ACLU on Friday in the civil rights group's effort to use the Freedom of Information Act to get documents from the CIA about US drone strikes overseas.
A three-judge panel of the DC Court of Appeals ruled unanimously that the CIA cannot simply refuse to respond by saying that it cannot confirm or deny the existence of any records. That position, the court said, has been completely undercut by public statements about the drone program made by President Barack Obama, CIA Director Leon Panetta and White House counterterrorism adviser John Brennan.
"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," the court said.
Those statements, the court said, make it "implausible that the CIA does not possess a single document on the subject of drone strikes."
But Friday's court victory does not hand the ACLU the key to the documents.
The court sent the case back to a federal judge to decide whether the CIA can still argue that actually handing over any documents it has would damage national security. In fact, Friday's decision even holds out the possibility that the CIA may not have to be very explicit at all in saying what documents it has and why it wants to withhold them.
The ACLU filed a Freedom of Information Act request with the CIA three years ago, seeking records pertaining to the use of drones by the CIA or the armed forces for targeted killings overseas. When the agency failed to respond in time, the ACLU went to court. A federal judge accepted the CIA’s argument that even answering the question of whether it had any drone records would raise national security problems. That ruling was reversed by the appeals court.
Jameel Jaffer, the ACLU lawyer who handles the case, called Friday's decision an important ruling.
“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. It also means that the CIA will have to explain what records it is withholding, and on what grounds it is withholding them," he said.