American Civil Liberties Union et al. v. Department of Justice et al.
Court |
United States District Court for the District of Columbia, United States |
Case number |
10-0436 (RMC) |
Decision title |
Memorandum Opinion |
Decision date |
9 September 2011 |
Parties |
- American Civil Liberties Union
- American Civil Liberties Union Foundation
- Department of Justice
- Department of Defense
- Department of State
- Central Intelligence Agency
|
Other names |
|
Categories |
Targeted killing |
Keywords |
drone, jurisdiction, kill, strike, targeted killing |
Links |
|
back to topSummary
Unmanned aerial vehicles, more commonly known as drones, are remote-controlled, unmanned planes that can be operated from anywhere in the world by pilots located thousands of miles away from the drone. Specific individuals can be targeted and fired upon from thousands of miles away.
Amidst reports that the United States Armed Forces and the Central Intelligence Agency (CIA) are using drone strikes to target suspected terrorists in Afghanistan, Pakistan and Yemen, the non-profit organisation, the American Civil Liberties Union (ACLU) filed a request with the US Departments of State, Defense and Justice, as well as the CIA under the Freedom of Information Act seeking access to records about the US drone program as well as its legal basis under domestic and international law. Faced with a refusal from the CIA to even confirm or deny the existence of such records, the ACLU filed a lawsuit before the United States District Court for the District of Columbia. The Court held, however, that the CIA’s refusal to confirm or deny the existence of such records falls within the exemptions to disclosure outlined by the Freedom of Information Act because such records pertain to national security and are protected from disclosure by the Central Intelligence Agency Act of 1949 and the National Security Act of 1947.
The decision is presently on appeal before the United States Court of Appeals for the District of Columbia Circuit.
back to topProcedural history
On 13 January 2010, the American Civil Liberties Union (ACLU) filed a request with the Department of State, Department of Justice, Department of State and Central Intelligence Agency (CIA) under the Freedom of Information Act to obtain record pertaining to the use of drones by the CIA and the Armed Forces for the purpose of targeted killings.
On 16 March 2010, the ACLU filed a complaint for injunctive relief before the United States District Court for the District of Columbia asking the Court to order the immediate release of the records sought in light of the Defendants’ non-release.
On 1 June 2010, the ACLU filed an amended complaint for injunctive relief seeking, as before, the release of the documents requested. In particular, they argued that the CIA’s refusal to even confirm or deny whether the CIA drone program exists is unlawful because the organisation had already publicly confirmed its existence.
back to topRelated developments
This case is one of three Freedom of Information Act (FOIA) lawsuits the ACLU is litigating in pursuit of more transparency about the targeted killing program. One of them, filed in October 2011, seeks information about the strikes that killed three Americans in Yemen, the other, filed in March 2015, demands information about the government’s targeted killing program.
On 15 March 2012, the ACLU appealed the decision of the District Court to the United States Court of Appeals for the District of Columbia Circuit. Oral arguments were held in September 2012.
The appellate court reversed the lower court’s decision by a 3-0 vote in March 2013.The D.C. Circuit Court of Appeals remanded the case to the district court. After the district court ruled the documents were properly classified, the ACLU appealed the decision in July 2015.
back to topLegally relevant facts
Unarmed aerial vehicles, otherwise known as drones, have allegedly been used by the CIA and the United States Armed Forces for the purpose of killing targeted individuals (p. 2).
In a letter of 9 March 2010, the CIA stated to the plaintiffs that it can neither confirm nor deny the existence or non-existence of records pertaining to the plaintiffs’ request to obtain documents pertaining to the use of the afore-mentioned drones in targeted killings (p.1).
back to topCore legal questions
- Does the CIA’s unwillingness to disclose the existence or non-existence of the requested records properly fall within one of the exemptions for disclosure guaranteed by the Freedom of Information Act?
back to topSpecific legal rules and provisions
- Paras. 552(b)(1) and (3) of the Freedom of Information Act.
- Paras. 403(g) and 403-1(i)(1) of the US Code.
back to topCourt's holding and analysis
Citing earlier case-law, the District Court held that the exemptions provided for in the Freedom of Information Act (FOIA) cover not only the content of protected government records but also the fact of their existence or non-existence, if that fact itself properly falls within the exemption. Thus, an agency may a priori refuse to confirm or deny the existence of responsive records if an answer would cause harm cognizable under an FOIA exemption (pp. 5-6).
The CIA argues that its refusal to confirm or deny the existence of the requested records falls within FOIA Exemptions 1 and 3, that is, to respond to the request would reveal classified information protected from disclosure by section 6 of the Central Intelligence Agency Act of 1949 and would implicate information concerning secret intelligence activities, sources and methods (p. 6).
The District Court granted the CIA’s motion for summary judgement (p. 31). It held that the CIA properly relied on Exemption 3 of the FOIA: information related to the use of drone strikes is protected from disclosure (1) by the Central Intelligence Agency Act as whether the CIA cooperates with, is interested in or actually directs drone strikes is “information relating to the functions” of its personnel (p. 9) and (2) by the National Security Act as drone strikes relate to intelligence sources and methods (pp. 16-17). It also found that Exemption 1 was properly relied upon (pp. 26-30).
back to topFurther analysis
- H. Ofek, 'The Tortured Logic of Obama’s Drone War', The New Atlantis 2010;
- N. Hentoff, 'Obama’s Favourite Weapons', Cato Institute, 14 April 2010;
- E. Lieblich, 'Show Us The Films: Transparency, National Security and Disclosure of Information Collected by Advanced Weapon Systems Under International Law', 45 Israel Law Review 459 (2012);
- R. J. Vogel, 'Drone Warfare and the Law of Armed Conflict', 39 Denver Journal of International Law and Policy (2011);
- J. L. Kleidman, 'The Constitutionality of the Predator Drone Programme', 4 Vienna Online Journal on International Constitutional Law 359 (2010).
back to topInstruments cited
back to topAdditional materials
- ACLU, Predator Drone FOIA;
- The Guardian, 'Drone Strikes: Activists Seek to Lift Lid on Open Secret of Targeted Killings', 20 June 2012;
- Global Research, 'ACLU Sues CIA Over Drone Killings', 23 September 2012;
- Pro Publica, 'How the Gov’t Talks About a Drone Program It Won’t Acknowledge Exists', 23 September 2012;
- Jurist, 'DC Circuit Hears Arguments on ACLU Request for Information on Drone Strikes', 21 September 2012;
- ACLU Press Release, 'ACLU in Appeals Court Thursday Arguing Against CIA’s Secrecy Claim on Targeted Killing Documents', 18 September 2012.
back to topSocial media links
- Steve Lendman Blog, 'ACLU Sues CIA Over Drone Killing', 22 September 2012;
- Lawfare, 'Appellant Brief Filed in ACLU v. CIA (Drone Program FOIA Request)', 16 March 2012;
- Politico, 'Judge: CIA need not release drone strike files', 9 September 2011;
- Opinio Juris, 'CIA Does Not Have to Respond to ACLU FOIA', 13 September 2011;
- Brown Human Rights Report, 'A Numbers Game: The Civilian Death Count in a Drone War', 3 November 2011;
- See also twitter.com @drones @ACLU #FOIA