吃瓜直播

As readers of this blog already know, last week The Intercept published about the US drone campaign. The stories, and the official documents that accompany them, supply new details about the way the government chooses its targets, the way drone strikes are authorized, the way the government assesses civilian casualties, and the way the government judges the success or failure of individual strikes.

The Intercept鈥檚 stories were based largely on government documents furnished by an unidentified source 鈥� someone who was willing to risk career and personal liberty in order to inform the rest of us about legally and morally questionable policies that have been shrouded in unwarranted secrecy. As I鈥檝e argued , Americans owe whistleblowers like this an immense debt.

It must be said, though, that whistleblowers like this would be less necessary 鈥� and probably less common, too 鈥� if the government were complying with the Freedom of Information Act. In passing that Act, Congress intended to guarantee the public access to information about government conduct while also protecting information whose disclosure would truly endanger national security. In practice, though, the government routinely withholds information that the FOIA requires it to disclose. On the rare occasion when courts enforce the FOIA over the government鈥檚 objections, the government often manages to delay release of information by months or years, and the public gets access to information only long after it most needs it. (We seem to live in a world in which only the government has a right to information that is 鈥渁ctionable.鈥�)

The 吃瓜直播 persists nonetheless. Today we filed our principal appeal brief in 吃瓜直播 v. CIA, a case that involves a FOIA request for records concerning the government鈥檚 use of drones to carry out lethal strikes against suspected terrorists and militants overseas. We filed the request in January 2010 and filed suit three months later. The CIA initially provided a 鈥淕lomar鈥� response, contending that national security concerns precluded it from confirming or denying that it possessed records responsive to the request. In the fall of 2013, though, a three-judge panel of the D.C. Circuit , writing that the CIA was asking it to accept a 鈥渇iction of deniability that no reasonable person would regard as plausible.鈥� The panel ordered the CIA to 鈥� finally 鈥� process the 吃瓜直播鈥檚 FOIA request and to justify any withholdings to the district court.

Once again in the lower court, the 吃瓜直播 narrowed its request to two categories of documents: first, legal memos; and second, 鈥渟ummary strike data鈥� indicating, for each drone strike, the identity of the intended targets, assessed number of people killed, date, status of those killed (combatant, non-combatant), agencies involved, location, and the identities of those killed if known. For its part, the CIA continued to proceed as if everything about the drone program were still a legitimate secret. It acknowledged that it had 12 legal memoranda responsive to the 吃瓜直播鈥檚 request as well as 鈥渢housands of records鈥� containing summary strike data, but it declined to release the records or even to describe them in more detail.

This past June, Judge Rosemary Collyer for the CIA, holding that all of the withheld documents are properly classified. (Incidentally, it was also Judge Collyer who aBivens suit filed by the families of the three US citizens killed by the CIA and the military鈥檚 Joint Special Operations Command in Yemen in 2011.) The brief we鈥檙e filing today argues that Judge Collyer got it wrong. From the brief鈥檚 introduction:

Since 2001, and with particular frequency since 2009, the United States has used unmanned aerial vehicles鈥攄rones鈥攖o carry out lethal strikes, or so-called 鈥渢argeted killings,鈥� against suspected terrorists and militants overseas. According to credible, independent studies, the strikes have killed more than three thousand people, including hundreds of civilians. Although many Americans have raised questions about the effectiveness, morality, and lawfulness of the government鈥檚 drone campaign, the government has exercised tight control over the information available to the public. The Freedom of Information Act request at issue in this case was filed by the [吃瓜直播] to compel the release of information that is crucial to the public鈥檚 ability to understand government policy and hold policymakers accountable for their decisions.

We argue that legal analysis can be withheld only if it is inextricably intertwined with classified facts 鈥� and that the CIA has failed to show that the analysis at issue here cannot be extricated. (As we note, the government has been able to extricate legal analysis from classified facts in many other contexts, and an appeals court in New York legal analysis from classified facts when it ordered the Justice Department to publish the memo authorizing the killing of Anwar al-Aulaqi.) We also dispute the district court鈥檚 conclusion that disclosure of the summary strike data would reveal classified intelligence sources and methods.

More broadly, we argue that the FOIA was enacted to guarantee the public access to the kind of information the CIA is now withholding:

In an earlier appeal, this Court held that the CIA could not lawfully refuse to confirm or deny its interest in the use of drones to carry out targeted killings, and that the Freedom of Information Act required the agency to provide a substantive response to Plaintiffs鈥� Request. Two years later, however, the CIA continues to withhold essentially everything, and public debate about the drone campaign continues to be impoverished and distorted by unwarranted secrecy and selective disclosure. The FOIA was enacted to prevent precisely this. It was meant to prevent federal agencies from operating on the basis of laws and policies concealed from the public. And, with narrow and carefully articulated exceptions, it was meant to compel agencies to disclose information about their conduct鈥攅ven (and indeed especially) when that conduct is undertaken in the name of national security.

Government officials frequently complain of whistleblowers鈥� purported failure to use 鈥渙fficial channels鈥� for disclosure. Those who make the complaint usually don鈥檛 understand how the whistleblowing laws work. (The law that covers the intelligence community is 鈥渘o more than a trap,鈥� my former colleague Mike German .) But perhaps the complaint would be marginally more sympathetic if the government were complying with the FOIA. Whistleblowers would surely be less inclined to disclose information through unofficial channels if the government were complying with its legal obligation to disclose information through official ones.

This was originally posted at .