Overview
In a case we've written about before, and which has generated a great deal of public attention, the ACLU today opposed the government's motion for summary judgment, and sought partial summary judgment of its own, in its case seeking information about the government's use of drones and other methods to effect the targetted killing of U.S. citizens abroad. The ACLU summarizes its argument in the preliminary statement of its brief:
This case concerns a Freedom of Information Act (“FOIA”) request for basic information about the most extreme authority our government can claim: the authority to kill its own citizens without charge or trial. The FOIA request also seeks information about the government’s actual killings of three U.S. citizens in Yemen last year. The government’s claimed authority has generated immense public concern and debate, a debate that the President, members of his cabinet, and other senior officials have joined. Top government officials have acknowledged that the government operates a targeted killing program. Officials have confirmed both that the government claims the authority to target U.S. citizens and that it has actually targeted them. Top government lawyers have discussed the purported legal basis for the targeted killing program, the President has acknowledged the killing of a U.S. citizen in an American drone strike in Yemen last year, and former Central Intelligence Agency (“CIA”) Director and current Secretary of Defense Leon Panetta has discussed both agencies’ roles in targeting U.S. citizens. Yet, in response to the FOIA request and to this Court, Defendants Department of Justice (“DOJ”), Department of Defense (“DOD”), and the CIA claim that they cannot even confirm or deny the existence of the CIA’s targeted killing program, nor release any information about the DOD’s program. All agencies have gone so far as to deny the American public access to records setting out the government’s purported legal basis for targeting American citizens for death. Because of the government’s official disclosures, the issues before this Court are clearcut and this case requires only the straightforward application of well-settled law. Senior officials have already acknowledged the very information at issue in this suit to the public and the press, and the government cannot therefore invoke the Glomar doctrine or the No Number, No List response to avoid its statutory obligation to release records. There is no occasion for the Court to defer to the government’s argument that harm would result from disclosing that the CIA and the military have the authority to conduct and do in fact conduct targeted killings of U.S. citizens when top executive branch officials have already made those disclosures. President Obama, for example, took credit for the killing of U.S. citizen Anwar al-Awlaki (“al-Awlaki”) within hours of his death, calling it a “tribute to our intelligence community,” (Normand Dec., Ex. H), and further stated on the Tonight Show with Jay Leno that “we were able to remove [al- Awlaki] from the field.” (Wicker Dec., Ex. 5.) As a legal matter, the government’s acknowledgments dispose of its arguments in support of summary judgment. But even if they did not, the Glomar and No Number, No List responses would be improper because the targeted killing of individuals is not an intelligence source or method. The targeted killing program is concerned with killing of individuals, not with gathering intelligence, and therefore the government’s concern that intelligence sources and methods will be revealed by its mere acknowledgment of the program is without force. Of course, the targeted killing program might rely on undisclosed, and therefore protectable, intelligence sources and methods. But those intelligence details can be protected on a document-by-document basis, and do not warrant the sweeping non-response the government offers here. For these reasons, the Court should deny the government’s motion for summary judgment, grant the American Civil Liberties Union’s and The American Civil Liberties Union Foundation’s (together, “the ACLU”) cross-motion for partial summary judgment, and order the government to produce records responsive to the ACLU’s request.