WASHINGTON - A federal appeals court Friday reversed a lower court ruling that allowed the CIA to refuse to confirm whether it had information on the use of unmanned drones to kill suspected terrorists.
A lower court federal judge had sided with the CIA and dismissed a lawsuit by the American Civil Liberties Union seeking those records. In response to the ACLU's Freedom of Information Act request, the CIA said that merely confirming the existence of drone records would reveal classified information. But the government subsequently backed off that claim during oral arguments before the appellate court.
Friday's ruling by a three-court panel sends the case back to the lower court, where the agency can argue that the records it has on drones are exempt from FOIA disclosure requirements.
The initial refusal to confirm even the existence of a record is a Cold War-era legal defense known as the Glomar response after the Glomar Explorer, a ship built with secret CIA financing to try to raise a Soviet submarine from the ocean floor. The CIA had said that confirming or denying records in this case would reveal "among other things, whether or not the CIA is involved in drone strikes or at least has an intelligence interest in drone strikes."
In his opinion for the panel, Judge Merrick Garland noted that officials from President Barack Obama to John Brennan, then-counterterrorism chief and now the new CIA director, have acknowledged the use of drones by the government.
"Given these 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 that the agency `at least has an intelligence interest' in such strikes," wrote Garland, an appointee of Democratic President Bill Clinton.
"The defendant is, after all, the Central Intelligence Agency. And it strains credulity to suggest that an agency charged with gathering intelligence affecting the national security does not have an `intelligence interest' in drone strikes, even if that agency does not operate the drones itself."
Garland wrote that "the CIA itself now appears to have recognized the indefensibility of its position." Stuart F. Delery, acting assistant attorney general, said in oral arguments last year that that the question of whether the CIA has documents on drones is "not where we're drawing the line."
