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Administration Maintains Drone Program They Have Repeatedly Touted Is a Secret

The ACLU has been attempting to get information from the government on its drone program, filing FOIA requests that have so far been denied. This is the subject of two lawsuits in Washington and New York. The government filed its brief in the case before the DC Circuit Court of Appeals today, and it includes an amusing passage.

Senior government officials, from Defense Secretary Leon Panetta to the President himself, have confirmed the existence of the drone program, by touting it in public as highly effective in keeping the country safe from terrorists. The ACLU has seized on this acknowledgement to argue for the release of documents and data on the program, since its existence has now become public knowledge. However, in the government’s brief yesterday, they contend that, despite these high-profile admissions, they can still neither confirm nor deny the existence of a drone program. The government acknowledged Panetta’s comments – which occurred when Panetta was the SITTING DIRECTOR OF THE CIA – even including them in their brief. But they go on to say this, borrowing from the opinion of a friendly district court (this case in DC is the appeal):

The district court properly concluded that this statement “did not officially disclose the CIA’s involvement in the drone strike program.” JA 283. The court explained that, “[e]ven if Director Panetta were speaking squarely on the issue of drone strikes, he never acknowledged the CIA’s involvement in such program. That Director Panetta acknowledged that such a program exists and he had some knowledge of it, or that he was able to assess its success, is simply not tantamount to a specific acknowledgment of the CIA’s involvement in such program, nor does it waive the CIA’s ability to properly invoke Glomar.” JA 283. Indeed, Director Panetta’s statement does not even explicitly acknowledge whether the U.S. Government is involved in such operations […]

Plaintiffs contend that the district court’s interpretation of Director Panetta’s remarks “defies logic.” Br. at 21. They argue that because the “sitting CIA Director” “referenced the existence” of drone strikes in Pakistan, his statement “surely comprises an acknowledgment.” Br. at 21. Yet plaintiffs do not even specify exactly what that statement purportedly acknowledges. Plaintiffs also ignore the fact that Director Panetta never even mentioned the term “drones” or “unmanned aerial vehicles” in his answer. Even if one accepts plaintiffs’ reading of Director Panetta’s statement as referring to drone strikes, however, at most he recognizes that drone strikes occur in Pakistan; he says nothing about whether the CIA possesses records about such drone strikes or whether the CIA is involved or has an intelligence interest in such drone strikes.

This is one of those head-exploding moments. Here’s how that exchange went. Note that the questioner specifically mentions “remote drone strikes.”

Q: [Audience member] . . . You mentioned that you believe the strategy in Pakistan is working – the President’s strategy in Pakistan in the tribal regions, which is the drone – the remote drone strikes. You’ve seen the figures recently from David Kilcullen and others that the strikes have killed 14 midlevel operatives and 700 civilians in collateral damage. And his assessment as a counterinsurgency expert is it’s creating more anti-Americanism than it is disrupting al-Qaeda networks […]

A: [Panetta] On the first issue, obviously because these are covert and secret operations I can’t go into particulars. I think it does suffice to say that these operations have been very effective because they have been very precise in terms of the targeting and it involved a minimum of collateral damage. I know that some of the – sometimes the criticisms kind of sweep into other areas from either plane attacks or attacks from F-16s and others that go into these areas, which do involve a tremendous amount of collateral damage. And sometimes I’ve found in discussing this that all of this is kind of mixed together. But I can assure you that in terms of that particular area, it is very precise and it is very limited in terms of collateral damage and, very frankly, it’s the only game in town in terms of confronting and trying to disrupt the al-Qaeda leadership.

The government is honestly trying to say that Panetta, in talking about operations that have been “very effective” and “precise in terms of the targeting” with a “minimum of collateral damage” has NOTHING to do with drones, even though he was responding to a question about drones, because he DIDN’T SAY THE WORD? Is that the insult to the intelligence we’re getting here? And mind you, Panetta’s acknowledgement of the drone strikes is not the only one from a high-ranking Administration official.

ACLU Deputy Legal Director Jameel Jaffer responded thusly:

Senior government officials have repeatedly disclosed information about the CIA’s use of unmanned drones to carry out targeted killings, taking credit for its putative successes, defending its legality, and dismissing concerns about civilian casualties. Now the CIA, relying on strained and implausible interpretations of officials’ earlier statements, tells the court that “the public does not know” the agency’s targeted killing program even exists. This is an absurd argument and the appeals court should reject it.

Adam Serwer has more. I guess “state secrets” are now defined as things that aren’t actually secrets, but which simply contain information that the government doesn’t want you to see.

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David Dayen

David Dayen