By Bill Mears
CNN Supreme Court Producer
WASHINGTON (CNN) — A federal appeals court panel has ruled the CIA must acknowledge the existence of any records related to military unmanned drone strikes aimed at people such as terror suspects overseas.
It called the agency’s previous denials “fiction.”
The American Civil Liberties Union and other groups had filed a Freedom of Information Act request, but the spy agency — citing national security — refused to confirm or deny it had any such records.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia did not buy the argument, giving the outside groups a partial legal victory Friday.
“The CIA 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.”
The unanimous ruling written by Chief Judge Merrick Garland added that, given “official acknowledgments that the United States has participated in 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.”
“The defendant is, after all, the Central Intelligence Agency.”
The judges did not immediately order any documents released, but dismissed the government’s argument it had the authority to refuse to “confirm or deny” it even had any such records.
And the court did leave some wiggle room for government officials to shape the scope of any release or acknowledgment.
“Just how detailed a disclosure must be made, even in an index, is another matter,” said the court.
“Conceding (or being compelled by the court to concede) that the agency has some documents,” still allows the CIA to assert that “any description of those documents would effectively disclose validly exempt information,” the ruling said.
“There may be cases where the agency cannot plausibly make the former argument with a straight face, but where it can legitimately make the latter.”
Nonetheless, civil liberties groups applauded this initial ruling in the case in their favor.
“This is an important victory,” said Jameel Jaffer, ACLU’s deputy legal director. “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.”
The agency offered a brief reaction. “The CIA does not, as a rule, comment on matters before the courts,” said spokeswoman Jennifer Youngblood.
The Obama administration now has the option of asking the full appeals court to intervene or taking the case to the U.S. Supreme Court for final review.
The advocacy groups filed suit in January 2010, asking for information about use of the unmanned aerial vehicles in selected strikes on terrorists.
Among those reportedly targeted by the strikes are American-born cleric Anwar al-Awlaki, a top commander in al Qaeda in the Arabian Peninsula. U.S. officials have privately acknowledged he was killed by Hellfire missiles from a U.S. Predator drone strike in remote northern Yemen in September 2011. That raised larger legal questions about the use of deadly force overseas to kill American citizens who are suspected terrorists.
Officials have walked a tricky legal and political line about their use, especially the toll on civilians caught in the attacks.
“I’m going to attempt to forestall any further questions about potentially covert programs by saying that everything I can tell you about it is on this piece of paper,” said White House Press Secretary Jay Carney last month. “And I’m just not going to acknowledge or confirm any of that.”
Carney’s predecessor, Robert Gibbs — now out of government service — told MSNBC the policy was to keep quiet.
“One of the first things they told me was, ‘You’re not even to acknowledge the drone program, you’re not even to discuss that it exists,’” Gibbs said.
But new CIA Director John Brennan last year did admit the program’s existence, saying, “The United States government conducts targeted strikes against specific al Qaeda terrorists, sometimes using remotely piloted aircraft often referred to publicly as drones.”
The ACLU argued in court that selected disclosure should have pre-empted the CIA from making claims it did not need to disclose any further information or records on the drone program.
The appeals court noted that in its 19-page opinion, saying “The president of the United States has himself publicly acknowledged that the United States uses drone strikes against al Qaeda.”
The judges quoted Obama in January 2012 saying, “I think that we have to be judicious in how we use drones. But understand that probably our ability to respect the sovereignty of other countries … is enhanced by the fact that we are able to pinpoint-strike an al Qaeda operative in a place where the capacities of the military in that country may not be able to get them. So obviously 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.”
Between 2004 and 2013, Pakistani officials have estimated 2,200 people have been killed in that country alone from drone strikes, about 400 of them civilians. Other independent estimates have put the death total much higher. Pakistani officials have publicly condemned the use of unmanned aerial vehicles.
Before the U.S. court’s ruling came out, United Nations counterterrorism investigator Ben Emmerson issued a statement Friday saying the American drone program “involves the use of force on the territory of another state without its consent, and is therefore a violation of Pakistan’s sovereignty.”
National security experts have said there are practical reasons for a policy of denial for covert programs.
“Covert actions are secret and they are deniable programs by the United States government, and if you talk about it publicly you begin to deny yourself the legal basis to use it as a covert action,” said Fran Townsend, CNN national security contributor.
Practical, political reasons exits as well. Governments in Yemen and Pakistan want deniability of their own, to dampen any anti-American anger that might erupt over a classified program of killing operating within their borders.
The case is ACLU v. CIA (11-5320).
CNN’s Carol Cratty contributed to this report.
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