Back in March, a federal appeals court in Washington revived a fight over the government's intent to keep secret any document about drone strikes. Ruling for the challengers, the U.S. Court of Appeals for the D.C. Circuit asked a trial judge in Washington to take a second look.
Now, with the case is back in Washington's federal trial court, the challengers contend the U.S. Department of Justice hasn't budged from its earlier position in the Freedom of Information Act lawsuit.
"Quite remarkably…the CIA’s position on remand is not much different than it was when plaintiffs first filed this suit," American Civil Liberties Union attorneys said in court papers filed September 13. The attorneys, including Hina Shamsi and Jameel Jaffer, added: "Although the agency now acknowledges the bare, obvious fact that it possesses records about the drone program, it refuses to describe these records, or even enumerate them."
Justice Department lawyers in the Civil Division, including Amy Powell, wrote in court papers in August that "the government has carefully considered how best to provide the American people as much information as possible about sensitive counterterrorism operations consistent with the protection of our national security."
The government, Powell wrote, has "disclosed key elements the principles and procedures involved in the decision to use targeted lethal force." But, she continued, the disclosure of details of those operations "could reasonably be expected to damage the government's counterterrorism efforts."
Powell argued that the CIA's "no number, no list" response—where the government deems exempt from disclosure even the number of pages of any responsive document—is appropriate.
The ACLU lawyers said in their papers that the CIA failed to show why the government should be allowed not to describe the content of any single document.
"The CIA cannot carry this burden, and its brief barely makes the attempt," the plaintiffs wrote. "The agency’s 'no number no list' response is so obviously deficient that one can only assume that the CIA’s goal is not to prevail on this motion but simply to delay as long as possible the day on which the agency will finally be required to explain what documents it is withholding and why."
The ACLU lawyers wrote: "The CIA’s blanket 'no number no list' response is utterly deficient—indeed, it is so plainly inadequate that it verges on the frivolous."
The plaintiffs asked the presiding U.S. District Court judge, Rosemary Collyer, to reject the “no number no list” response and order the intelligence agency to produce an index of responsive records "that the D.C. Circuit ordered it to provide six months ago."