The Erosion of a Secret

Drone Timeline (Click to Enlarge)
Drone Timeline (Click to Enlarge)

In connection with an ACLU Freedom of Information Act lawsuit pending before the U.S. District Court for the District of Columbia, the CIA has agreed to “process” a set of records relating to the CIA’s use of armed drones to carry out “targeted killings,” “signature strikes,” “terrorist attack disruption strikes,” and other “premeditated killings.”  Here’s the substance of the agreement:

 [The CIA] will process:

1 – Any and all final legal memoranda (as well as the latest version of draft legal memoranda which were never finalized) concerning the U.S. Government’s use of armed drones to carry out “premeditated killings”….; and

2 – Four types of records containing charts or compilations about U.S. Government strikes sufficient to show the identity of the intended targets, assessed number of people killed, dates, status of those killed, agencies involved, the location of each strike, and the identities of those killed, if known.

“Processing” and “disclosure” are two very different things.  Still, the agreement reflects progress of a kind.  The CIA originally provided a “Glomar” response in this lawsuit, contending that national-security interests precluded it from confirming or denying that it possessed any responsive document at all.  Even after the D.C. Circuit rejected that argument, the CIA argued that national-security interests precluded it from enumerating or describing any of the responsive documents.  Over the summer, in response to separate lawsuits brought by the ACLU and the New York Times, the Second Circuit rejected that argument.

Perhaps the CIA will now do what it should have done almost five years ago: search its files, provide an index of responsive records, release records that aren’t exempt from the FOIA, and explain the basis on which it’s withholding anything that it views as exempt.  We’ll see.  Judge Collyer has ordered the agency to complete the processing of the request by November 25th.

In the meantime, it’s perhaps worth giving some thought to this: Is the graphic above evidence that FOIA is working, or that it isn’t? 

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About the Author(s)

Jameel Jaffer

Founding Director of the Knight First Amendment Institute at Columbia University, Former Deputy Legal Director at the American Civil Liberties Union and Director of the ACLU’s Center for Democracy, Author of The Drone Memos, Follow him on Twitter (@JameelJaffer).