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The Guardian

Obama DOJ Again Refuses to Tell a Court Whether CIA Drone Program Even Exists

As the nation spent the week debating the CIA assassination program, Obama lawyers exploit secrecy to shield it from all review

It is not news that the US government systematically abuses its secrecy powers to shield its actions from public scrutiny, democratic accountability, and judicial review. But sometimes that abuse is so extreme, so glaring, that it is worth taking note of, as it reveals its purported concern over national security to be a complete sham.

Such is the case with the Obama DOJ's behavior in the lawsuit brought by the ACLU against the CIA to compel a response to the ACLU's Freedom of Information Act (FOIA) request about Obama's CIA assassination program. That FOIA request seeks nothing sensitive, but rather only the most basic and benign information about the "targeted killing" program: such as "the putative legal basis for carrying out targeted killings; any restrictions on those who may be targeted; any civilian casualties; any geographic limits on the program; the number of targeted killings that the agency has carried out."

Everyone in the world knows that the CIA has a targeted killing program whereby it uses drones to bomb and shoot missiles at those it wants dead, including US citizens. This is all openly discussed in every media outlet.

Key Obama officials, including the president himself, not only make selective disclosures about this program but openly boast about its alleged successes. Leon Panetta, then the CIA Director, publicly said all the way back in 2009 when asked about the CIA drone program: "I think it does suffice to say that these operations have been very effective because they have been very precise." In 2010, Panetta, speaking to the Washington Post, hailed the CIA drone program in Pakistan as "the most aggressive operation that CIA has been involved in in our history". This is just a partial sample of Obama official boasts about this very program (for more, see pages 15 to 28 here).

Despite all that, the Obama DOJ from the start has refused not only to provide the requested documents about the CIA drone program, but they refuse to say whether such documents even exist. They do so by insisting that whether there even exists such a thing as a "CIA drone program" is itself classified, and therefore, they can neither admit nor deny whether they possess any of the documents sought by the FOIA request: "the very fact of the existence or nonexistence of such documents is itself classified," repeats the Obama DOJ over and over like some hypnotic Kafkaesque mantra.

DOJ secrecy

Even in the face of the endless stream of public statements from the president on down discussing and boasting about the drone program, the federal judge presiding over the lawsuit last September meekly deferred (as usual) to the DOJ's secrecy claims and dismissed the ACLU's lawsuit. The judge, Rosemary Collyer, ruled that all of the public statements cited by the ACLU whereby Obama officials boasted of the drone program do not constitute official acknowledgment that the CIA (as opposed to some other government generally) has a drone program. The ACLU has appealed this decision.

As ludicrous as the DOJ's secrecy claims were before, they have now reached Alice in Wonderland proportions. Just last week, Obama's nominee to lead the CIA, John Brennan, spent hours upon hours before the Senate Intelligence Committee praising the CIA targeted killing program and discussing the oversight he would make available for that program as CIA director. Then, GOP House Intelligence Committee Chairman Mike Rogers went on Face the Nation and did the same; when asked if "the administration has been straight with Congress in sharing information on what the rules are about using" drones, Rep. Rogers replied: "Monthly, I have my committee go to the CIA to review them. I as chairman review every single air strike that we use in the war on terror, both from the civilian and the military side when it comes to terrorist strikes."

Clearer and more definitive acknowledgment by the US government that the CIA has a drone program is impossible to imagine. As a result, late last week, the ACLU wrote a letter to the appellate court where its case is now pending to notify the court of these new public acknowledgments. Specifically, as the ACLU put it, Brennan and the Committee members "extensively discussed various aspects of the CIA's targeted-killing program, including the 'role' of the 'CIA director in [the]
approval process' for targeted killings abroad". Moreover, Rogers openly "discusse[d] his committee's 'monthly' oversight of the CIA's targeted-killing program." Now, there is simply no way to deny in good faith that the US government has publicly and officially acknowledged the CIA drone program.


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But good faith is no impediment to the Obama DOJ when it comes to its abuse of secrecy powers. This morning, the DOJ sent a letter to the court replying to the ACLU. Ever after the events of last week, they have the audacity to claim that even the question of whether there is a CIA drone program must still be concealed. The DOJ argues - completely falsely - that the ACLU "identif[ies] no statement in which Mr. Brennan allegedly confirms purported CIA involvement in the use of unmanned aerial vehicles for 'targeted killing'", but merely cite "general discussions of 'targeted killing' that do not address the involvement of any particular agency". They dismiss the admissions of Chairman Rogers on the ground that "statements made by members of Congress do not constitute official disclosure by an Executive Branch agency."

Just think about that: Obama and his aides routinely boast about the drone program to make the president look like daddy-protector tough guy. Someone in the administration just disclosed last week to NBC News a "white paper" sent by the Obama DOJ to Congress purporting to legally justify the CIA assassination program. Everyone knows and is now debating whether the CIA should be doing this.

But what is missing from the debate is the most basic information about what the CIA does and even their claimed legal justification for doing it. The Obama administration still refuses to publicly disclose the OLC memo that purported to authorize it (they agreed two weeks ago to make it available only to certain members of Congress without stuff present, thus still maintaining "secret law"). They conceal all of this - and thus prevent basic democratic accountability - based on the indescribably cynical and inane pretense that they cannot even confirm or deny the existence of the CIA program without seriously jeopardizing national security.

This is a complete perversion of their secrecy powers. Even among the DC cliques that exist to defend US government behavior, one would be hard-pressed to find anyone willing to defend what is being done here. The Obama administration runs around telling journalists how great and precise and devastating the CIA's assassination program is, then tells courts that no disclosure is permissible because they cannot safely confirm in court that the program even exists.

Such flagrant abuse of secrecy power is at once Orwellian and tyrannical. It has the effect of blocking even the most minimal transparency on the most consequential question: the government's claimed authority to execute anyone it wants without charges, far from a battlefield, in total secrecy. It yet again demonstrates that excessive government secrecy is an infinitely greater threat than unauthorized disclosures. This is why we need radical transparency projects and aggressive whistle-blowers. And it's why nobody should respect the secrecy claims of the Obama administration or believe the assertions they make about national security. What else do they need to do to prove how untrustworthy those claims are?

Use on US soil

Last week, Esquire's Charles Pierce noted that Brennan, at his confirmation hearing, refused to say whether the US government has the power to target US citizens for execution without charges even on US soil. Yesterday, GOP Sen. Rand Paul - who used his State of the Union response to denounce "secret lists of American citizens who can be killed without trial" - said that he would block Brennan's confirmation "until Brennan declares whether he believes the United States has the authority to use unmanned drones to conduct targeting killings of Americans — in the United States."

To understand just how radical the Obama administration is when it comes to secrecy, just think about the fact that it refuses to answer even that question.

Glenn Greenwald

Glenn Greenwald

Glenn Greenwald is a Pulitzer Prize-winning journalist, constitutional lawyer, commentator, author of three New York Times best-selling books on politics and law, and a staff writer and editor at First Look media. His fifth and latest book is, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world. Prior to his collaboration with Pierre Omidyar, Glenn’s column was featured at Guardian US and Salon.  His previous books include: With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the PowerfulGreat American Hypocrites: Toppling the Big Myths of Republican PoliticsA Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency, and How Would a Patriot Act? Defending American Values from a President Run Amok. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, a George Polk Award, and was on The Guardian team that won the Pulitzer Prize for public interest journalism in 2014.

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