Judge Merrick Garland of the US Court of Appeals for the DC Circuit [official website] on Friday reversed [opinion, PDF] a lower court ruling which allowed the CIA [official website] to refuse to confirm or deny whether it has records pertaining to the use of unmanned drones to kill suspected terrorists. The case arises from a Freedom of Information Act (FOIA) [text] claim filed by the American Civil Liberties Union (ACLU) [advocacy website] requesting records on the CIA's drone program regarding the legal justification for using drones [AP report] and information concerning civilian casualties. The CIA gave a "Glomar response," which allows an agency to refuse to confirm or deny the existence of records following a FOIA request in certain limited circumstances, stating that disclosure of the information could damage national security. However, when there has been "official acknowledgment" of the information in question, then the agency has waived its right to claim any exemption. Following the district court's holding that there has not been "official acknowledgement" of the drone program, the ACLU appealed resulting in Friday's ruling. Noting that US President Barack Obama and CIA Director John Brennan have both acknowledged that the US has utilized drone strikes against suspected terrorists, Judge Garland stated that "it is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain" in responding to the FOIA request.
The use of drone strikes by the US has come under scrutiny in recent months. Last week, Attorney General Eric Holder wrote a letter [JURIST report] to Senator Rand Paul suggesting that a drone strike on US soil would be legal only in extraordinary circumstances following a lengthy filibuster by the Senator in the confirmation of John Brennan as CIA director. In January, UN Special Rapporteur on human rights and counter-terrorism Ben Emmerson announced that he will begin investigating [JURIST report] the legality of the use of drone strikes. Following a request to allow an independent investigation [JURIST report] into the use of targeted killings last year, Emmerson stated that there is still no consensus among the international community as to the legality of the conduct. Also in January, Pakistan's foreign Affairs Minister condemned US drone attacks [JURIST report] as a violation of Pakistan's sovereignty and international law. In December, the US Department of Justice filed a motion to dismiss [JURIST report] a lawsuit challenging the US government's targeted killing of three US citizens in drone strikes.