CIA Does Not Have to Respond to ACLU FOIA

by Kenneth Anderson

The ruling by Judge Rosemary Collyer was not unexpected; it provides that the CIA does not have to release records related to its drone-targeted killing program, as sought by the ACLU in a Freedom of Information Act (FOIA) suit.  The opinion is here, and Politico gives a brief summary of it here (h/t Lawfare).  Politico’s Josh Gerstein sums it up:

Ruling in a Freedom of Information Act case brought by the American Civil Liberties Union, Judge Rosemary Collyer said records about the use of drones could be withheld under the rubric of “intelligence sources and methods.” She rejected the ACLU’s arguments that lethal drones aren’t really involved in acquiring intelligence.

“At first blush, there is force to Plaintiffs’ argument that a ‘targeted-killing program is not an intelligence program’ in the most strict and traditional sense,” Collyer wrote, before concluding: “The Court has no reason to second-guess the CIA as to which programs that may or may not be of interest implicate the gathering of intelligence.”

Gerstein goes on to note that this ruling does not address other agencies of the government, such as State, which do not have these specific exemptions related to intelligence; without having done an exhaustive survey of FOIA cases, however, I would be surprised if something that the CIA could withhold on intelligence exemptions could be got sideways from other federal agencies.  Perhaps I’m wrong.

From a substantive standpoint, I thought the ACLU’s attempt to sever “intelligence gathering” from drone strikes as targeted killing was clever as a litigation ploy, but not sustainable in real life.  The fundamental point is that drone strikes in targeted killing are the last kinetic step in what is a massive intelligence operation — “intelligence-driven uses of force,” as I’ve been calling them.  Drones in their surveillance role are part of that intelligence gathering, but in Afghanistan and Pakistan, the effectiveness of the drones program of targeted killing depends enormously on the CIA’s ground level intelligence gathering, a network that has taken years of effort to get underway, and which — among other things — angers Pakistan because it has allowed the US to determine its own targets without having to rely on Pakistani military and intelligence.

There is no ability to sever the gathering from the strikes; they are all part of the same operation, from the fat middle of intelligence gathering and assessment from many different sources to the thin tail of the drone strike at the end, followed by more surveillance afterwards to determine what happened.  (I talk about this at the beginning of a working paper in v2 I’ve put up at SSRN, When “Efficiency” Jus in Bello Creates “Inefficiency” Jus ad Bellum: Does Targeted Killing Through Drone Technology Make the Resort to Force “Too Easy”?.  There was an earlier draft of the paper, messy and very first draft; this is a drastically re-organized and re-written version, and frankly a lot better — though it won’t be the final published version.  The paper is mostly a philosophy paper, not directly on targeting operations, but the opening section, on disentangling drone use from targeted killing, addresses some of these issues.)

http://opiniojuris.org/2011/09/13/cia-does-not-have-to-respond-to-aclu-foia/

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