ACLU v. CIA on Targeted Killings and Drones
R. Tamara de Silva
On March 15, 2013, the United States Court of Appeals for the District of Columbia in an opinion written by Chief Justice Garland, held that the Central Intelligence Agency could not invoke the Glomar response in requests made by the American Civil Liberties Union (“ACLU”) under the Freedom of Information Act (“FOIA”) for "records pertaining to the use of the use of unmanned aerial vehicles [drones]…by the CIA and armed forces for the purpose of killing targeted individuals.”  The CIA had responded to the ACLU’s request for information about the use of drones for targeted killings by issuing what is called the
Glomar response, that is it said that it could “neither confirm nor deny” the existence of any records in response to the ACLU’s FOIA request. In other words, the CIA responded that it could not confirm nor deny the existence of a drone program- that it had an “intelligence interest” in drones. The Court of Appeals ruled that in light of all the public statements that had already been made about the existence of drones and a drone program, the CIA could not reasonably claim not to be able to comment on their existence.
The Court of Appeals held that the CIA had not offered any reason why it could not confirm nor deny the existence of records related to drones strikes because drone strikes were already known to exist. The existence of drone strikes is a matter in the public domain when the President refers to the use of drones against Al-Qaeda targets as well as John Brennan and one time CIA director, Leon Panetta.
[G]iven [such] statements by the Director, the President, and the President’s counterterrorism advisor, the Agency’s declaration that “no authorized CIA or Executive Branch official has disclosed whether or not the CIA . . . has an interest in drone strikes,” is at this point neither logical nor plausible.
For the CIA to claim that acknowledging the existence of records on drone strikes would divulge the existence of drone strikes, what was in essence their argument, goes beyond the limits of credulity and asks the Court to approve a fiction.
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. 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.
FOIA was enacted in 1966 to allow Americans to hold their government accountable by being informed about its operations. The Supreme Court described the function of FOIA as being, “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” 
There are nine exemptions under which a federal agency served with a FOIA request can refuse to answer.  In this case, the CIA can now invoke one of these nine exemptions and the ACLU is back to square one but at least it can no longer refuse to acknowledge that drone programs exists by use of the Glomar response. According to a study by the National Security Archive the
Glomar response has been used by the CIA three times more often since 9/11 than it was used in the twenty-five years preceding it.
Hence this decision is an important victory for the ACLU and anyone using FOIA because it provides a specific situation in which the Glomar response cannot be used. The Court of Appeals’ language about the CIA’s invoking of
Glomar by seeming to beggar the truth is a rare example of the one branch of government checking the apparent excess of another,
The Glomar doctrine is in large measure a judicial
construct, an interpretation of FOIA exemptions that flows from
their purpose rather than their express language. In this case, the
CIA asked the courts to stretch that doctrine too far -- to give
their imprimatur to a fiction of deniability that no reasonable
person would regard as plausible. “There comes a point
where . . . Court[s] should not be ignorant as judges of what
[they] know as men” and women. Watts v. Indiana, 338 U.S.
49, 52 (1949) (opinion of Frankfurter, J.). We are at that point
with respect to the question of whether the CIA has any
documents regarding the subject of drone strikes.
The public’s need for transparency has always been at odds with the intelligence community whose operations necessitate secrecy. The CIA’s invocation of the Glomar response is not an exception to FOIA but a response that is perhaps more frustrating for journalists and the public because it has been invoked so often since 9/11 and it is often a dead end to any FOIA inquiry. There are only two ways to argue against or appeal a
Glomar response: 1) to argue that the information requested does exist because it has been disclosed previously, as in this case; or 2) to re-file a FOIA request as part of a broader issue whose existence is established.
The most interesting thing about the Glomar response other than its liberal invocation, is its origin. It is not always that I get to write about the point of intersection between the CIA, targeted killings, the ACLU and the reclusive Howard Hughes.
In 1968 and at the height of the Cold War, a soviet submarine carrying nuclear missiles called K-129 sank about 800 miles south of Hawaii and more than three miles below the ocean’s surface. In 1972, the CIA turned to perhaps the most interesting man of the twentieth century to help recover it-a recovery that had to be kept secret from the American public and the Soviet Union. Apparently, there was no known technology at the time that could have recovered the sunken submarine.
This is where Howard Hughes comes in. Howard Hughes’s Glomar Explorer was ostensibly built to recover potato sized mineral deposits from ocean beds. In 1974, the CIA used the
Glomar Explorer in what it called project Azorian, to try and pull the sunken Soviet sub from the ocean floor and to recover its nuclear missiles. The
Glomar was a vessel only a Howard Hughes could have built at the time, with special engines and thrusters that managed to keep the ship from drifting more than 50 feet in any direction in the open ocean despite the ocean’s waves, gusts and currents.  When a journalist, Harriet Ann Phillippi asked that the CIA produce information about the recovery of K-129 and the CIA’s attempts to censor publication about it, the intelligence agency responded simply that it could neither “confirm nor deny” the story or any censorship of it. This was the first
Since then the CIA’s use of the Glomar response when asked about matters ranging from torture, renditions to what have been observed by international journalists and government officials as obvious unmanned aerial aircraft in the Middle East, has become ubiquitous and far less interesting. This same Court of Appeals upheld the CIA's use of the
Glomar response last year in the context of cybersecurity.
What is significant about the Court of Appeals decision in the ACLU v. CIA case is that it is a rare and very real check by the Judiciary of the Executive’s otherwise seemingly absolute power over law and process for the sake of the War on Terror. For this reason alone, it is a triumph.
R. Tamara de Silva
March 18, 2013
 ACLU v. CIA (No. 11-5320)
 United States Supreme Court in NLRB v. Robbins Tire Co. 437 U.S. 214, 242 (1978).