A federal appeals court held Friday that the Central Intelligence Agency must disclose, at least to a judge, a description of its records on drone strikes in response to a Freedom of Information Act lawsuit filed by the American Civil Liberties Union.
The 19-page opinion by Judge Merrick B. Garland rejected an effort by the Obama administration to keep secret any aspect of the C.I.A.’s interest in the use of drone strikes to kill terrorism suspects abroad.
It does not necessarily mean the contents of any of those records will ever be made public, and it stopped short of ordering the government to acknowledge publicly that the C.I.A. actually uses drones to carry out “targeted killings” against specific terrorism suspects or groups of unknown people who appear to be militants in places like tribal Pakistan.
The Obama administration continues to treat that fact as a classified secret, though it has been widely reported.
But the ruling was a chink in that stone wall. Judge Garland, citing the C.I.A. role in analyzing intelligence, as well as public remarks by a former director and other top officials about what they asserted was the precision and minimal civilian casualties caused by drone strikes, said it was a step too far to ask the judicial branch to give its “imprimatur to a fiction of deniability that no reasonable person would regard as plausible.”
He wrote that “as it is now clear that the agency does have an interest in drone strikes, it beggars belief that it does not also have documents relating to the subject.”
The C.I.A., in urging a District Court judge to dismiss the lawsuit, had argued that it should not be required to produce even an index of the relevant documents in its possession – a normal step in such litigation – because it would harm national security even to confirm or deny whether it had an “interest” in such operations.
The District Court judge, Rosemary Collyer, accepted that argument and rejected the A.C.L.U.’s case, and the ruling on Friday sends the case back to her. It remains to be seen how detailed and public she will require the agency to be now that it must at least describe its records.
Judge Garland, the chief judge of the United States Court of Appeals for the District of Columbia Circuit, is a former Justice Department official and an appointee of President Bill Clinton who is considered a potential nominee to the Supreme Court should a vacancy arise in President Obama’s second term. His opinion was joined by Judge David S. Tatel, another Clinton appointee, and Judge Thomas Griffith, an appointee of President George W. Bush. Judge Collyer, of the District Court, is also a Bush appointee.
Dean Boyd, a Justice Department spokesman, would say only, “We’re reviewing the decision.”
Jameel Jaffer, a lawyer for the A.C.L.U. who argued the case before the appeals court in September, called the ruling “an important victory” that “requires the government to retire the absurd claim that the C.I.A.’s interest in the targeted killing program is a secret.”
Pressure has been mounting on the Obama administration to disclose more information to Congress and to the public about its use of drones generally, and its killing of three Americans in Yemen in the fall of 2011, including the radical Muslim cleric Anwar al-Awlaki, in particular.
In recent weeks, the administration has provided several legal memorandums about the killing of American citizens to the Senate Intelligence Committee as part of its effort to get John O. Brennan confirmed as the director of the C.I.A.
Last week, Senator Rand Paul, Republican of Kentucky, led a nearly 13-hour filibuster before the Brennan vote in which he denounced the administration’s drone policies and the secrecy surrounding its understanding of the scope and limits of its power to kill.
The case stems from a 2010 request under the Freedom of Information Act by the A.C.L.U. for records held by the C.I.A. related to the use of drones to carry out targeted killings.
The A.C.L.U. is also a litigant in a separate Freedom of Information Act case in New York that is seeking documents related to the killing of American citizens, including Mr. Awlaki, who was killed in a C.I.A. drone strike in Yemen in 2011. The New York Times is also part of that case, and is seeking legal memorandums related to the killing of both citizens and to targeted killings generally.
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