Updated 4:28 p.m.
The CIA can no longer outright deny the existence of any agency documents related to drone strikes, a federal appeals court in Washington said today in overturning a trial judge's ruling that allowed the intelligence agency to remain silent on whether any such documents are in the files.
Ruling in a high-profile Freedom of Information Act suit, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said a trial judge in Washington must now determine whether the contents of any CIA records can be disclosed to the public. The trial judge, Rosemary Collyer, in September 2011 allowed the U.S. Justice Department to end the litigation through its refusal to confirm or deny the existence of any such CIA records.
In the arena of litigation over public records, lawyers following the case said the court's victory was a big one—a strike against the government's insistence that it cannot, in some cases, reveal the mere existence of documents. The American Civil Liberties Union filed the suit in U.S. District Court for the District of Columbia in 2010.
"In this case, the CIA asked the courts to stretch that doctrine too far—to give their imprimatur to a fiction of deniability that no reasonable person would regard as plausible," Chief Judge Merrick Garland wrote for the D.C. Circuit panel.
Still, the scope of the D.C. Circuit ruling remains to be seen. The decision doesn't end the case or necessarily require the production of any documents, and the decision doesn't force the CIA to officially acknowledge any agency use of unmanned aerial vehicles.
Rather, the government must produce an index of records "or other description of the kind of documents the agency possesses." In the trial court, there will be litigation over whether certain exemptions in the federal public records law will allow the government to keep documents on that list secret. There's no rule on how descriptive the index of records must be, the appeals court noted.
Stuart Delery, the acting leader of the DOJ Civil Division, who argued the case in the D.C. Circuit, was not immediately reached for comment. The government has the option to ask the full appeals court to review the case. (Click here for Collyer's ruling. As a side note, Collyer on March 8 was appointed to serve on the Foreign Intelligence Surveillance Court in Washington.)
Jameel Jaffer, deputy legal director at the ACLU, said in a statement "we hope that this ruling will encourage the Obama administration to fundamentally reconsider the secrecy surrounding the targeted killing program."
The thrust of the D.C. Circuit decision was its determination that the CIA has an interest in—if not direct involvement with—the Obama administration's use of so-called targeted killing drone strikes against suspected terrorists. The appeals court noted a number of public statements and speeches from senior officials and President Barack Obama that address the strategic and lethal use of drones.
"Although these statements do not acknowledge that the CIA itself operates drones, they leave no doubt that some U.S. agency does," Garland wrote for the panel, which included judges David Tatel and Thomas Griffith. "The CIA does not dispute that these statements qualify as official acknowledgments of at least that much."
Forcing the CIA to disclose the existence of records about drones, Garland said, will not reveal anything that's not already in the public domain—that is, that the agency has, at minimum, an intelligence interest in targeted killing strikes.
"The defendant is, after all, the Central Intelligence Agency," Garland wrote. "And it strains credulity to suggest that an agency charged with gathering intelligence affecting the national security does not have an 'intelligence interest' in drone strikes, even if that agency does not operate the drones itself."
The appeals court said public speeches by Attorney General Eric Holder Jr. and White House counterterrorism advisor John Brennan "render it impossible to believe that those two speeches are the only documents related to drone strikes in the agency's files."
At oral argument in the case, Garland, addressing Delery, said: "If the CIA is the emperor, you're asking us to say the emperor has clothes when the emperor's bosses say that the emperor doesn't. I mean, how can you ask the court to say that at this point?"
Jaffer, who argued the case for the ACLU, said the D.C. Circuit 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."
In his State of the Union address, Obama pledged greater transparency in the national security arena, saying: "I recognize that in our democracy, no one should just take my word for it that we’re doing things the right way." The president didn't mention drones, however.
The Obama administration, Jaffer said today, "should give the public the information it needs in order to fully evaluate the wisdom and lawfulness of the government's policies."
Earlier in the D.C. Circuit, the government asked the court to send the case back to the trial level for an assessment of the CIA acknowledgement of the existence of speeches from Holder and Brennan.
"Such a remand would enable the district court, in the first instance, to determine the effect, if any, of that official acknowledgment on the case at bar," DOJ Civil Division lawyer Catherine Hancock said in the papers.
DOJ said Collyer "is in the best position to receive such new information and to consider, in the first instance, its effect on the government's response in this case."
The D.C. Circuit, however, rejected the request.