American Civil Liberties Union et al. v. Department of Justice et al.

Court	United States District Court for the District of Columbia, United States
Case number	10-0436 (RMC)
Decision title	Memorandum Opinion
Decision date	9 September 2011
Parties	American Civil Liberties Union American Civil Liberties Union Foundation Department of Justice Department of Defense Department of State Central Intelligence Agency
Other names	ACLU case
Categories	Targeted killing
Keywords	drone, jurisdiction, kill, strike, targeted killing
Links	Memorandum Opinion

Summary

Unmanned aerial vehicles, more commonly known as drones, are remote-controlled, unmanned planes that can be operated from anywhere in the world by pilots located thousands of miles away from the drone. Specific individuals can be targeted and fired upon from thousands of miles away.

Amidst reports that the United States Armed Forces and the Central Intelligence Agency (CIA) are using drone strikes to target suspected terrorists in Afghanistan, Pakistan and Yemen, the non-profit organisation, the American Civil Liberties Union (ACLU) filed a request with the US Departments of State, Defense and Justice, as well as the CIA under the Freedom of Information Act seeking access to records about the US drone program as well as its legal basis under domestic and international law. Faced with a refusal from the CIA to even confirm or deny the existence of such records, the ACLU filed a lawsuit before the United States District Court for the District of Columbia. The Court held, however, that the CIA’s refusal to confirm or deny the existence of such records falls within the exemptions to disclosure outlined by the Freedom of Information Act because such records pertain to national security and are protected from disclosure by the Central Intelligence Agency Act of 1949 and the National Security Act of 1947.

The decision is presently on appeal before the United States Court of Appeals for the District of Columbia Circuit.

Procedural history

On 13 January 2010, the American Civil Liberties Union (ACLU) filed a request with the Department of State, Department of Justice, Department of State and Central Intelligence Agency (CIA) under the Freedom of Information Act to obtain record pertaining to the use of drones by the CIA and the Armed Forces for the purpose of targeted killings.

On 16 March 2010, the ACLU filed a complaint for injunctive relief before the United States District Court for the District of Columbia asking the Court to order the immediate release of the records sought in light of the Defendants’ non-release.

On 1 June 2010, the ACLU filed an amended complaint for injunctive relief seeking, as before, the release of the documents requested. In particular, they argued that the CIA’s refusal to even confirm or deny whether the CIA drone program exists is unlawful because the organisation had already publicly confirmed its existence.

Related developments

This case is one of three Freedom of Information Act (FOIA) lawsuits the ACLU is litigating in pursuit of more transparency about the targeted killing program. One of them, filed in October 2011, seeks information about the strikes that killed three Americans in Yemen, the other, filed in March 2015, demands information about the government’s targeted killing program.

On 15 March 2012, the ACLU appealed the decision of the District Court to the United States Court of Appeals for the District of Columbia Circuit. Oral arguments were held in September 2012.

The appellate court reversed the lower court’s decision by a 3-0 vote in March 2013.The D.C. Circuit Court of Appeals remanded the case to the district court. After the district court ruled the documents were properly classified, the ACLU appealed the decision in July 2015.

Legally relevant facts

Unarmed aerial vehicles, otherwise known as drones, have allegedly been used by the CIA and the United States Armed Forces for the purpose of killing targeted individuals (p. 2).

In a letter of 9 March 2010, the CIA stated to the plaintiffs that it can neither confirm nor deny the existence or non-existence of records pertaining to the plaintiffs’ request to obtain documents pertaining to the use of the afore-mentioned drones in targeted killings (p.1).

Core legal questions

Does the CIA’s unwillingness to disclose the existence or non-existence of the requested records properly fall within one of the exemptions for disclosure guaranteed by the Freedom of Information Act?

Specific legal rules and provisions

Paras. 552(b)(1) and (3) of the Freedom of Information Act.
Paras. 403(g) and 403-1(i)(1) of the US Code.

Court's holding and analysis

Citing earlier case-law, the District Court held that the exemptions provided for in the Freedom of Information Act (FOIA) cover not only the content of protected government records but also the fact of their existence or non-existence, if that fact itself properly falls within the exemption. Thus, an agency may a priori refuse to confirm or deny the existence of responsive records if an answer would cause harm cognizable under an FOIA exemption (pp. 5-6).

The CIA argues that its refusal to confirm or deny the existence of the requested records falls within FOIA Exemptions 1 and 3, that is, to respond to the request would reveal classified information protected from disclosure by section 6 of the Central Intelligence Agency Act of 1949 and would implicate information concerning secret intelligence activities, sources and methods (p. 6).

The District Court granted the CIA’s motion for summary judgement (p. 31). It held that the CIA properly relied on Exemption 3 of the FOIA: information related to the use of drone strikes is protected from disclosure (1) by the Central Intelligence Agency Act as whether the CIA cooperates with, is interested in or actually directs drone strikes is “information relating to the functions” of its personnel (p. 9) and (2) by the National Security Act as drone strikes relate to intelligence sources and methods (pp. 16-17). It also found that Exemption 1 was properly relied upon (pp. 26-30).