WASHINGTON—A federal appeals court said Friday that it will no longer accept the “fiction” from the Obama administration’s lawyers that the CIA has no interest or documents that describe drone strikes.
“It is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain to say the Agency at least has an intelligence interest in such strikes,” said Chief Judge Merrick Garland. “The defendant is, after all, the Central Intelligence Agency.”
The decision gave a partial victory to the American Civil Liberties Union in a Freedom of Information Act lawsuit that seeks documents on the government’s still-secret policy on drone strikes. The three judges did not say any particular documents must be released, but they rejected the administration’s position that it could simply refuse to “confirm or deny” that it had any such documents.
A federal judge had rejected the ACLU’s suit entirely, but the three-judge appeals court revived the suit. The agency’s non-response does not pass the “straight face” test, Garland concluded.
He cited public statements from President Obama, new CIA Director John Brennan and former Defense Secretary Leon Panetta that discussed the use of drone strikes abroad. In the past, the courts have sometimes allowed government agencies in sensitive cases to refuse to say whether they have certain documents in their files.
“In this case, the CIA has 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,” Garland wrote in ACLU vs. CIA.
ACLU attorney Jameel Jaffer called the decision a victory. “It requires the government to retire the absurd claim that the CIA’s interest in targeted killing is a secret,” he said. “It also means that the CIA will have to explain what records it is withholding and on what grounds it is withholding them.
“We hope that this ruling will encourage the Obama administration to fundamentally reconsider the secrecy surrounding the drones program,” said Jaffer, a deputy legal director for the ACLU.