James Obergefell and John  Alarmed at the reported use of drones to kill human targets, the American Civil Liberties Union (ACLU) submitted a broad request under the Freedom of Information Act (FOIA) to the Central Intelligence Agency (CIA). The request sought information on drone strikes, including selection of targets, number of strikes, and number and identity of civilians killed.

The CIA denied the FOIA request. After years of litigation, it released only one heavily-edited document. The agency argued that VOIA exempted it from disclosure for two reasons. First, the CIA contended that he requested information related to intelligence activity, the integral legal mission of the CIA. Second, FOIA exempts classified information in the interest of national security. The CIA argued that the disclosure of drone strike records would imperil defense and foreign policy.

The ACLU did not agree. It maintained that the requested information was not secret because government officials had discussed drone strikes publicly. In fact, both President Obama and his CIA Director Leon Panetta had talked about the use of drone strikes in the fight against al-Qaeda.

The district court granted summary judgment in favor of the CIA. The ACLU appealed. 

You Be the Judge: Does FOIA require the disclosure of CIA records on drone strikes? 

Argument for the ACLU: Your Honors, the CIA is improperly withholding information to which the American public is entitled. First, it is hiding behind the VOIA exemption that protects the disclosure of information about its functioning. The CIA’s principal mission is foreign intelligence. A targeted-killing program is not an intelligence program; drone strikes are not a primary function of the CIA.

Under the CIA’s interpretation of the national security exemption, it could refuse to provide any information about anything it does because everything in some way relates to foreign activities or national security. Is that the blanket license we want to give the CIA? We only request facts and figures, not anything that would reveal an intelligence operation. 

Finally, a FOIA exemption can serve no purpose if the protected information is already public. The president and the director of the CIA had already acknowledged that the United States engages in drone strikes. All we respectfully request is the ability to keep the American public informed. 

Argument for the CIA: The law gives the CIA broad power to protect the secrecy and integrity of the intelligence process. Responding to the ACLU’s FOIA request would reveal sensitive information about the CIA’s capabilities, limitations, priorities, and resources. There is no doubt that this kind of detail would reveal intelligence activities and is properly protected under FOIA exemptions. The law protects this information from disclosure for good reason, as its revelation would unnecessarily compromise the Agency’s efforts and endanger Americans. As for President Obama’s disclosures, acknowledging that drone strikes exist has very different implications from disclosing all of the detail surrounding their use. The latter goes too far in the name of freedom of information – and compromises other freedoms in the process. 

Holding: The Court ruled that the Agency had satisfied its burden of showing that the records requested were properly classified. 

Questions:

1. Do you agree with the CIA’s argument that revealing the existence of drone strikes is different from disclosing all of the detail surrounding their use?

2. Do you agree with the court’s decision?

3. How do you balance the needs of the public for information with the needs of security agencies for secrecy?