Last week, a federal appeals court rejected the Central Intelligence Agency's plea for secrecy about its use of unmanned aerial vehicles, commonly called drones, to kill targeted individuals. It's very unusual for a court to override the CIA's claim to secrecy; even more unusual is the language used by the court, characterizing the CIA's position as "illogical," "implausible," "untenable," and "indefensible." The court could have added the words paranoid and disingenuous.
The lawsuit was brought by the American Civil Liberties Union under the Freedom of Information Act (FOIA), requesting various records held by the CIA relating to its drone program. The issue of drone attacks has been gaining increasing public traction, especially since the CIA's drone attacks in Yemen in 2011 which killed three Americans, including the radical Muslim cleric Anwar al-Awlaki. The Obama administration recently provided the Senate Intelligence Committee with information about drone attacks, and Senator Rand Paul led a 13-hour filibuster to skewer the administration's drone policies.
The CIA refused to comply with the ACLU's request for documents. In fact, the CIA would neither confirm nor deny the existence of any records. The CIA claimed that by confirming or denying the existence of documents, the CIA would be revealing whether the Central Intelligence Agency - emphasis on the word "intelligence" -- has any "intelligence interest in drone strikes." The CIA argued that confirming even the existence of records would damage national security, and that since no official in the Executive Branch has ever disclosed whether the CIA is involved in drone strikes, or whether the CIA has an interest in drone strikes, the CIA is exempt under FOIA from disclosure.
But as the appeals court wrote, with undisguised astonishment, the CIA's response "beggars belief." First, as noted above, the CIA has refused even to acknowledge "whether the CIA has an intelligence interest in drone strikes." But this statement is patently preposterous. How can the CIA assert with a straight face that it has no intelligence interest in drone attacks, a subject that is so intimately related to national security and counter-terrorism? It would be as if the Federal Bureau of Investigation refused to acknowledge whether it has an "interest" in criminal investigations.
Moreover, the CIA's claim that no authorized Executive Branch official has ever disclosed whether the CIA is "involved in drone strikes or has an interest in drone strikes" is also preposterous, even dishonest. For example, President Obama has acknowledged the use of drones ("a lot of these strikes have been going after al Qaeda suspects who are up in very tough terrain along the border between Afghanistan and Pakistan"). The President's counterterrorism advisor John Brennan stated that the U.S. "conducts targeted strikes against specific al-Qaida terrorists, sometimes using remotely piloted aircraft." Former CIA Director Leon Panetta noted that the drone program involves "covert and secret operations" that have been "very effective because they have been very precise in terms of the targeting and involved a minimum of collateral damage."
Given these acknowledgements, it is disingenuous for the CIA to claim that it would be revealing confidential information not already in the public domain if it disclosed that it had an "intelligence interest" in drone strikes. Indeed, when Mr. Brennan made his remarks, noted above, he also added that in deciding whether to carry out a strike, "we draw on the full range of our intelligence capabilities" and "may ask the intelligence community to collect additional intelligence or refine its analysis so that a more informed decision can be made." Indeed, he said, "we listen to departments and agencies across our national security team." "We don't' just hear out differing views, we ask for them and encourage them" It is therefore beyond belief that the CIA would seriously contend in official litigation that it does not possess a single document on the subject of drone strikes.
In asking a court to give its imprimatur to an implausible legal position, the CIA risked losing the confidence not only of the judiciary but also of Congress and the American people. The idea of creating a "drone court" similar to the court that reviews wiretap applications under the Foreign Intelligence Surveillance Act would be undermined if courts did not trust representations made by the CIA in its litigation concerning drones, as in this case. Moreover, the CIA's absurd and extravagant claims to secrecy, and therefore diminished accountability, may be a sufficient reason to remove the drone program from the CIA altogether, and transfer the program to the Department of Defense, which has a much better record than the CIA of transparency and accountability.
The CIA's defense of an indefensible position on secrecy suggests that it believes secrecy trumps all other values, even a court's common sense. Killing people secretly, based on secret information, is dangerous. It invites abuse, and replication by other countries. Such a policy should be run by responsible government agencies only, with a lesser obsession with secrecy.