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ACLU Wins Appeal 2013 Mar

ACLU Wins Appeal 2013 Mar

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A three-judge panel, at the U.S. Court of Appeals for the District of Columbia Circuit, ruled March-15 in favor of ACLU. The court ruled the CIA must acknowledge the existence of any records related to military unmanned drone strikes targeting individuals, such as overseas terror suspects. The CIA had tried to block ACLU lawsuit citing national security. This appeals court rejected that argument, saying the lawsuit may go forwards.

The judges said the government's stance was no longer credible, nor justified, as President Barack Obama and a senior adviser had publicly acknowledged drone attacks on al-Qaida suspects abroad.

A lower court federal judge had sided with the CIA and dismissed a lawsuit by the American Civil Liberties Union seeking those records. The appeals court over-ruled the lower court, and sent the case back there to continue.

This does not mean that the CIA data will ever be made public. The court battle will continue. .

The ACLU FOIA lawsuit seeks to learn when, where, and against whom drone strikes can be authorized, and how and whether the U.S. ensures compliance with international law restricting extrajudicial killings.

See my Drone Scribd doc for perspective on the importance of this lawsuit.
A three-judge panel, at the U.S. Court of Appeals for the District of Columbia Circuit, ruled March-15 in favor of ACLU. The court ruled the CIA must acknowledge the existence of any records related to military unmanned drone strikes targeting individuals, such as overseas terror suspects. The CIA had tried to block ACLU lawsuit citing national security. This appeals court rejected that argument, saying the lawsuit may go forwards.

The judges said the government's stance was no longer credible, nor justified, as President Barack Obama and a senior adviser had publicly acknowledged drone attacks on al-Qaida suspects abroad.

A lower court federal judge had sided with the CIA and dismissed a lawsuit by the American Civil Liberties Union seeking those records. The appeals court over-ruled the lower court, and sent the case back there to continue.

This does not mean that the CIA data will ever be made public. The court battle will continue. .

The ACLU FOIA lawsuit seeks to learn when, where, and against whom drone strikes can be authorized, and how and whether the U.S. ensures compliance with international law restricting extrajudicial killings.

See my Drone Scribd doc for perspective on the importance of this lawsuit.

More info:

Published by: Alister William Macintyre on Mar 15, 2013
Copyright:Attribution Non-commercial

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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
 Matthew M. Collette
and
Catherine Y. Hancock 
, Attorneys.
 Douglas N. Letter 
and
Sharon Swingle
, Attorneys, entered appearances.
 
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 of 
Phillippi v. CIA
, in whichthis court addressed the CIA’s refusal to confirm or deny whether ithad documents relating to Howard Hughes’ ship, the Glomar Explorer,
 
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 ACLU’s 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 CIA’smotion 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
of responsive 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 Audit Project v. Casey
, 656 F.2d 724 (D.C. Cir. 1981).

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