After a nearly three year legal battle to obtain government acknowledgement of its clandestine overseas drone and assassination program, the ACLU waits with determined patience today to see how the Obama administration responds to court imposed deadline for an official response and what, if anything, they will release as part of a Freedom of Information Act request first filed in January of 2010.
A court set the deadline for the administration to either hand over the requested documents or to explain why they are being held.
"They may not release anything at all, they might continue to say it's a secret," Jameel Jaffer, head of the ACLU's Democracy Project, told The Guardian. "It's possible but it's absurd. On the one hand there's extraordinary public interest in the drone program. On the other hand they recently filed a legal brief claiming it's too secret even to acknowledge. It surprised me that they were willing to say that to the appeals court in DC."
The ACLU's lawsuit seeks, in addition to information about the legal basis for the drone program, information about how the program is overseen and data regarding the number of civilians and non-civilians killed in the strikes. Estimates of civilian casualties provided by anonymous government officials quoted in the press and by various non-governmental analysts differ dramatically, says the ACLU, giving an incomplete and inconsistent picture of the human cost of the program.
Jaffer told The Guadian he was sceptical there would be any release of information but said he would like to see the CIA's drone programme moved out of the category of covert action. "I would like to see them put everything on the table. To say 'What we're doing is part of the war on al-Qaida, that has been authorised as part of the authorisation of military force.' The program ought to be normalised and disclosed and debated, he said.
"To pretend that it doesn't exist seems like an act of bad faith. It's an attempt to forestall a controversy that is taking place anyway. The CIA has been hiding behind a pretence of secrecy. It should drop the pretence."
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ACLU: (Press Release - January 13, 2010): ACLU Requests Information On Predator Drone Program
NEW YORK, NY - January 13 - In a Freedom of Information Act (FOIA) request filed today, the American Civil Liberties Union asked the government to disclose the legal basis for its use of predator drones to conduct "targeted killings" overseas. In particular, the ACLU seeks to find out when, where and against whom drone strikes can be authorized, and how the United States ensures compliance with international laws relating to extrajudicial killings.
"The American public has a right to know whether the drone program is consistent with international law, and that all efforts are made to minimize the loss of innocent lives," said Jonathan Manes, a legal fellow with the ACLU National Security Project. "The Obama administration has reportedly expanded the drone program, but it has not explained publicly what the legal basis for the program is, what limitations it recognizes on the use of drones outside active theaters of war and what the civilian casualty toll has been thus far. We're hopeful that the request we've filed today will encourage the Obama administration to disclose information about the basis, scope and implementation of the program."
The administration has used unmanned drones to target and kill individuals not only in Afghanistan and Iraq but also in Pakistan and Yemen. The technology allows U.S. personnel to observe targeted individuals and launch missiles intended to kill them from control centers located thousands of miles away.
Today's FOIA request was filed with the Department of Defense, the Department of Justice (including the Office of Legal Counsel), the Department of State and the CIA.
"The use of drones to conduct targeted killings raises complicated questions – not just legal questions but policy and moral questions as well," said Jameel Jaffer, Director of the ACLU National Security Project. "These are not questions that should be decided behind closed doors. They are questions that should be debated openly, and the public should have access to information that would allow it to participate meaningfully in the debate."
The ACLU's request seeks, in addition to information about the legal basis for the drone program, data regarding the number of civilians and non-civilians killed in the strikes. Estimates of civilian casualties from the government and human rights organizations differ dramatically, from the dozens to the hundreds, giving an incomplete and inconsistent picture of the human cost of the program.
The text of the FOIA request can be found here: www.aclu.org/national-
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The Guardian reports:
The CIA's stance on the issue is based on a 35-year-old judicial doctrine called Glomar, which allows government agencies to respond to requests under FOIA by refusing to confirm or deny that the records exist. It was named after a now-famous ship called the Hughes Glomar Explorer, which the CIA used in the early 1970s to salvage a sunken Soviet submarine. When the LA Times exposed the operation the agency attempted to suppress related FOIA requests, arguing that there were circumstances in which it was impossible for them even to acknowledge the existence of records without revealing facts that the government had a right to withhold.
Aftergood said the Glomar doctrine was no longer appropriate. "That was a unique, unprecedented and one-time effort," he said. "It was not a recurring programme that expands over many years and I think that's a clue to why the current position is unsustainable. The CIA did not fly one drone over one target one time, but repeatedly over years. For that reason alone the Glomar claim is inappropriate and the position untenable."
There are a number of different positions the government could take on Wednesday. It could revoke the invocation of Glomar and say, yes there is a drone programme, but then say that everything about it is classified. It could revoke Glomar and release something but not everything. Or it could continue to invoke Glomar and release nothing. It could also revoke Glomar and release everything ACLU has requested, but no one thinks this is likely.
If it continued to invoke Glomar the court may either yield to the government's position or "because of the public debate it may say 'This is ridiculous' and reject the Glomar claim and say you have to process the claim under FOIA", Aftergood said.
Lawyers at ACLU believe the government is ready to move on the issue. They point to a legal letter to the judge requesting an extension in the case. It states the request comes from Holder himself and that "given the significance of the matters presented in this case, the government's position is being deliberated at the highest level of the executive branch".
"There's only one issue" said Jameel Jaffer, the director of ACLU's Centre for Democracy. "There's nothing to discuss at a higher level except whether to acknowledge a programme they've already discussed many times."
Jaffer admits he has no idea what might happen. "They may not release anything at all, they might continue to say it's a secret. It's possible but it's absurd. On the one hand there's extraordinary public interest in the drone programme. On the other hand they recently filed a legal brief claiming it's too secret even to acknowledge. It surprised me that they were willing to say that to the appeals court in DC.
"Everyone recognised now that the programme will be an important aspect of President Obama's legacy. He ought to be thinking about this not in terms of short-term political considerations but in terms of how the programme will be viewed by history."
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