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ACLU Drone FOIA - Appeals Court Ruling

ACLU Drone FOIA - Appeals Court Ruling

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Published by LeakSourceInfo
http://leaksource.wordpress.com/2013/03/15/dc-appeals-court-rejects-cias-secrecy-claims-in-aclus-targeted-killing-foia-lawsuit/
http://leaksource.wordpress.com/2013/03/15/dc-appeals-court-rejects-cias-secrecy-claims-in-aclus-targeted-killing-foia-lawsuit/

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Published by: LeakSourceInfo on Mar 15, 2013
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11/06/2013

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 20, 2012Decided March 15, 2013No. 11-5320A
MERICAN
C
IVIL
L
IBERTIES
U
NION AND
A
MERICAN
C
IVIL
L
IBERTIES
U
NION
F
OUNDATION
,A
PPELLANTS
v.C
ENTRAL
I
NTELLIGENCE
A
GENCY
,A
PPELLEE
Appeal from the United States District Courtfor the District of Columbia(No. 1:10-cv-00436)
 Jameel Jaffer
argued the cause for appellants. With him onthe briefs were
Ben Wizner
and
Arthur B. Spitzer
.
Ranjana Natarajan
was on the brief for
amici curiae
TheBureau of Investigative Journalism, et al. in support of appellants.
Stuart F. Delery
, Acting Assistant Attorney General, U.S.Department of Justice, argued the cause for appellee. With himon the brief were
Ronald C. Machen Jr.
, U.S. Attorney,
Beth S.Brinkmann
, Deputy Assistant Attorney General, and
MatthewM. Collette
and
Catherine Y. Hancock
, Attorneys.
Douglas N.Letter
and
Sharon Swingle
, Attorneys, entered appearances.
USCA Case #11-5320 Document #1425559 Filed: 03/15/2013 Page 1 of 19
 
2Before: G
ARLAND
,
Chief Judge
,
 
and
 
 T
ATEL
and G
RIFFITH
,
Circuit Judges
.Opinion for the Court filed by
Chief Judge
G
ARLAND
.G
ARLAND
,
Chief Judge
: The plaintiffs filed a Freedom of Information Act request for records held by the CentralIntelligence Agency pertaining to the use of unmanned aerialvehicles (“drones”) to carry out targeted killings. The Agencyissued a so-called
Glomar
response, refusing to confirm or denythat it had any such records. The district court affirmed theAgency’s response and granted summary judgment in its favor. The question on appeal is whether the Agency’s
Glomar
response was justified under the circumstances of this case. Weconclude that it was not justified and therefore reverse andremand for further proceedings.IOn January 13, 2010, the American Civil Liberties Unionand American Civil Liberties Union Foundation (collectively,the ACLU) submitted a Freedom of Information Act (FOIA)request to the Central Intelligence Agency (CIA), seeking“records pertaining to the use of unmanned aerial vehicles(‘UAVs’) -- commonly referred to as ‘drones’ . . . -- by the CIAand the Armed Forces for the purpose of killing targetedindividuals.” FOIA Request 2 (J.A. 48);
see
5 U.S.C. § 552(a). The CIA responded with what is commonly known as a
Glomar
response,” declining either to confirm or deny theexistence of any responsive records.
1
The CIA’s Agency
1
 The name is derived from the facts o
Phillippi v. CIA
, in whichthis court addressed the CIAs refusal to confirm or deny whether ithad documents relating to Howard Hughes’ ship, the Glomar Explorer,
USCA Case #11-5320 Document #1425559 Filed: 03/15/2013 Page 2 of 19
 
3Release Panel accepted an administrative appeal, but failed tomake a determination within twenty days as FOIA requires.
See
5 U.S.C.
 
§ 552(a)(6)(A)(ii). The ACLU then filed suit againstthe CIA in the United States District Court for the District of Columbia, seeking the immediate processing and release of therequested records.
See id.
§ 552(a)(4)(B). The CIA moved for summary judgment. It asserted that theanswer to the question of whether it possessed responsiverecords was itself exempt from disclosure under FOIAExemptions 1 and 3.
See id.
§ 552(b)(1), (3). And it rejectedthe ACLUs contention that there had been official publicacknowledgments that warranted overriding the Agency’sexemption claims. In support of those arguments, the CIAsubmitted the affidavit of Mary Ellen Cole, the InformationReview Officer for the Agency’s National Clandestine Service,who explained at some length why the CIA believed its
Glomar
response was justified.
See
Declaration of Mary Ellen Cole(Cole Decl.).On September 9, 2011, the district court granted the CIAsmotion for summary judgment.
Am. Civil Liberties Union v.Dep’t of Justice
, 808 F. Supp. 2d 280, 284 (D.D.C. 2011). Thecourt agreed with the CIA that the existence
vel non
oresponsive records was exempt under both Exemptions 1 and 3,and that there had been no official acknowledgment sufficient tooverride those exemptions. As a consequence, the court held,the CIA was not required to confirm or deny that it had anyresponsive records, let alone describe any specific documents itmight have or explain why any such documents were exemptfrom disclosure. The ACLU filed a timely appeal.
which had reputedly been used in an attempt to recover a lost Sovietsubmarine. 546 F.2d 1009 (D.C. Cir. 1976);
see Military AuditProject v. Casey
, 656 F.2d 724 (D.C. Cir. 1981).
USCA Case #11-5320 Document #1425559 Filed: 03/15/2013 Page 3 of 19

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