DC Circuit requires CIA to give some drone strike information to judge in ACLU lawsuit

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A federal appeals court has ruled that the CIA must give some information about its drone strike records to a federal judge overseeing a case filed by the American Civil Liberties Union.

The U.S. Court of Appeals for the District of Columbia Circuit ruled Friday in a panel opinion (PDF) by Judge Merrick Garland, report the New York Times and the Associated Press. A federal judge had dismissed the Freedom of Information suit in September 2011 after the CIA refused to confirm or deny whether it had such records because it could harm national security.

On appeal, the ACLU contended the CIA had waived its right to keep secret the existence of the records because high-level officials had revealed drone strike information in media reports. The appeals court agreed with the argument.

President Obama has himself publicly acknowledged that the United States uses drone strikes against al-Qaida, the opinion said. Obama’s then-counterterrorism adviser, John Brennan, has also done so. Brennan was recently confirmed to lead the CIA.

In addition, then-CIA director Leon Panetta talked about the usefulness of drone strikes in 2009 remarks, the court said. “Given those statements, it is implausible that the CIA does not possess a single document on the subject of drone strikes,” the opinion said.

The government must file an index of drone documents with the court, but the form such list must take is still subject to litigation. The agency could seek to file a “no number, no list” response acknowledging it has documents, but declining to elaborate further. “Such a response would only be justified in unusual circumstances, and only by a particularly persuasive affidavit,” the court said. “But we are getting ahead of ourselves. None of these issues has been litigated in this case.”

ACLU deputy legal director Jameel Jaffer praised the opinion as an important victory in a news release. The decision “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,” Jaffer said.

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