The decision followed a lower court ruling that the agency did not have to acknowledge drone operations, never mind produce any documents about them, in response to a Freedom of Information Act request from the American Civil Liberties Union.
“This is an important victory. It 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,” said Jameel Jaffer, the ACLU’s deputy legal director, who argued the case before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. “It also means that the CIA will have to explain what records it is withholding and on what grounds it is withholding them.”
The Obama administration has been under increasing pressure from Congress and civil liberties groups to be more forthcoming about drone operations, including by providing some access to the legal opinions written by the Justice Department that justify targeted killings.
The administration has repeatedly said it will be more transparent about counterterrorism operations; the legal shield around covert operations has been further punctured by officials’ discussion of the programs.
The ACLU’s case will be returned to the U.S. District Court for another hearing on whether the CIA has documents on drone operations and whether they should be released.
A spokeswoman for the agency, Jennifer Youngblood, said the CIA “does not, as a rule, comment on matters before the courts.”
The agency had argued that “it could neither confirm nor deny that it had responsive documents because confirming that it did would reveal that the CIA was either involved in, or interested in, drone strikes (while denying that it did would reveal the opposite),” according to the court.
The appeals court judges found that argument unconvincing and quoted statements by President Obama, CIA Director John O. Brennan and one of his predecessors, Leon E. Panetta, on counterterrorism operations. The court said the agency cannot hide behind a claim that drone operations have not been officially acknowledged. And once acknowledged, the CIA could not say it has no interest in the matter, the court ruled.
“The defendant is, after all, the Central Intelligence Agency,” Chief Judge Merrick 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.”