“Public debate is impoverished and distorted by unwarranted secrecy and selective disclosure,” according to the ACLU’s case, which will be argued Wednesday by its deputy legal director, Jameel Jaffer, before the U.S. Court of Appeals for the District of Columbia Circuit.
The Justice Department, representing the Central Intelligence Agency, has said that making public such “granular” information would damage national security. In court filings, government attorneys note that U.S. officials have already provided some details about the use of armed drones “in order to provide greater transparency on a topic of significant public interest.”
“That effort should not be penalized by compelling the disclosure of additional classified and privileged information,” according to the government’s case, which will argued by Justice Department attorney Sharon Swingle.
When the ACLU initially filed its lawsuit in 2010, the CIA declined to confirm the existence of any relevant records.
However, because President Obama and the former CIA director, among others, had publicly described the program, the appeals court found that the agency was required to tell the ACLU what records exist.
“It is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain,” Chief Judge Merrick B. Garland said of such a disclosure in his 2013 opinion.
In a separate case filed by the ACLU and the New York Times, an appellate court judge in New York in 2014 released a government memo outlining the justification for the 2011 drone strike in Yemen that killed Anwar al-Awlaki, a U.S. citizen and accused al-Qaeda operative.
On Wednesday, the D.C. case will be heard by a three-judge panel comprising Judges David S. Tatel, Thomas B. Griffith and David B. Sentelle.
Civil liberties advocates suggest that the court could separate the legal analysis behind the program from any classified facts that could compromise national security. The ACLU says that because government officials have already acknowledged the use of armed drones in places such as Yemen, Somalia and Pakistan, the legal justification is essentially government policy.
But Justice Department lawyers say that even if the memo analyzes whether the operations are legal, the records the ACLU is seeking are not “secret law.”
The documents do not “compel any particular action by the CIA or any other government agency, nor do they determine what government policy will be.”
In addition, releasing the identity of the agency’s targets or the locations of each strike, Justice Department lawyers say, would “self-evidently be revealing of the CIA’s intelligence capabilities.”