Reporters for both Reuters and the Associated Press use the word "skeptical" today as they described the tone of US court of appeals judges questioning government lawyers about the CIA's ongoing refusal to release key documents regarding the existence of drone and assassination programs that various top level officials, including one of President Obama's chief national security advisers, have already acknowledged.
The central legal issue before the appellate court is whether the government, through its officials—including President Obama and former CIA Director and current Defense Secretary Leon Panetta—has officially and publicly acknowledged the existence of the CIA’s use of drone airstrikes. According to the ACLU's argument regarding its FOIA request, once the government has acknowledged a fact in public, it is prohibited from refusing to confirm the same fact in court. This rule ensures that the government cannot make self-serving claims about its actions when convenient, but then deny the public access to the full and accurate information about those actions to which the public is entitled under FOIA.
All three appeals judges read aloud to a full courtroom statements from U.S. officials, some of them anonymous, that the judges said made the government's case difficult.
A 2010 story in The Washington Post about drone attacks quoted Leon Panetta, then the CIA director, describing "the most aggressive operation that CIA has been involved in our history."
After Judge David Tatel asked Delery about the passage, Delery responded that Panetta was "talking about CIA efforts generally, but not any specific technique."
And the Associated Press adds:
Judge Merrick Garland cited a speech this year by President Barack Obama's counterterrorism chief, John Brennan, in which Brennan said the government targets terrorists with drones, and uses the "full range" of the government's intelligence capabilities.
"Isn't that an official acknowledgment that the CIA is involved with the drone program?" asked Garland, an appointee of Democratic President Bill Clinton.
Stuart F. Delery, acting assistant attorney general, said Brennan's statement wasn't sufficient to tie the drone program to the CIA because the intelligence community has 17 agencies.
Garland said that the government was asking the court to say "the emperor has clothes, even when the emperor's boss" says the emperor doesn't have clothes.
Judge David Tatel, another Clinton appointee, asked about a 2010 comment that Panetta made to ABC News when he was CIA director: "... the more we continue to disrupt al-Qaida's operations, and we are engaged in the most aggressive operations in the history of the CIA in that part of the world, and the result is that we are disrupting their leadership."
Delery replied that Panetta did not specifically mention drones.
The CIA initially refused to admit or deny that it had any relevant records and said that merely confirming the existence of material would reveal classified information. That refusal to confirm even the existence of a record is a Cold War-era legal defense known as the Glomar response after the Glomar Explorer, a ship built with secret CIA financing to try to raise a Soviet submarine from the ocean floor.
But Delery told the court that the government was no longer making that claim. He pointed to a declaration made in June by John Bennett, director of the CIA's National Clandestine Service, in another FOIA case pending in New York City in which the ACLU is seeking information about the targeted killings of three U.S. citizens in Yemen.
In that declaration, Bennett said that in light of speeches made by senior U.S. officials on the subject of killing al-Qaida leaders, the CIA conducted a search for records responsive to the ACLU's request in the New York case.
"Based on that search, it has determined that it can now publicly acknowledge that it possesses records responsive to the ACLU's FOIA request," he said. But he said the spy agency can't provide the number, nature or categorization of those records without disclosing information protected under FOIA exemptions.
Delery said that the question of whether the CIA has documents on drones is "not where we're drawing the line."
ACLU lawyer Jameel Jaffer said in a telephone interview that the government has "repackaged" the same argument.
"They continue to take the position that they haven't acknowledged the CIA uses drones to carry out targeted killings," he said.
Reuters noted that the judges seemed more sympathetic to ACLU lead attorney Jameel Jaffer.
Garland told Jaffer that the lawyer had stronger arguments than he was using. "You have the president of the United States announcing, 'We have a drone program.' If I were you, I'd start with that," Garland said.
Panetta, now the U.S. defense secretary, was a particular focus as the judges and Jaffer returned multiple times to speeches and interviews he gave.
In May 2009, while Panetta was CIA director, he gave a speech in which an audience member asked about drone strikes. He responded, "These operations have been very effective because they have been very precise in terms of the targeting and it involved a minimum of collateral damage."
That statement "discloses that the CIA has a drone program that is engaged in targeted killing," or at least has documents related to a broader program, Jaffer said.
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