WASHINGTON, Sept 20: A US appeals court responded sceptically on Thursday to Obama administration’s assertions that the government can withhold documents about a programme that uses aerial drones for targeted killings in Pakistan and other countries.
A suit brought by the American Civil Liberties Union is part of a broad legal strategy, also playing out in federal court in New York, to learn more about the drone programme that the government says targets Al Qaeda militants.
The programme is shrouded in secrecy, even as officials up to President Barack Obama acknowledge it exists.
What remains in dispute is whether the government has confirmed the involvement of the CIA in the programme, and if so, whether the CIA must turn over documents to the ACLU.
Pressing government lawyer Stuart Delery, judge Merrick Garland asked: “If the CIA is the emperor, aren’t you asking us to say that the emperor has clothes even when the emperor’s bosses say it doesn’t?”
All three appeals judges read aloud to a full court room statements from U.S. officials, some of them anonymous, that the judges said made the government’s case difficult.
A 2010 story in The Washington Post about drone attacks quoted Leon Panetta, then the CIA director, describing “the most aggressive operation that CIA has been involved in in our history”.
After Judge David Tatel asked Delery about the passage, Delery responded that Panetta was “talking about CIA efforts generally, but not any specific technique”.
Given the high stakes of the operations, Delery told the judges that they should have a “very high bar” before finding that the CIA had disclosed its involvement.
DOCUMENTS AT STAKE: A ruling against the US government could lead to the release of such information as the government’s legal explanation of how the targeted killings comply with international law and the rights of US citizens abroad.
A drone strike in Yemen in September last year killed Anwar al Awlaki, a US-born militant who joined Al Qaeda’s Yemen affiliate, and naturalised US citizen Samir Khan.
Any decisions to force the release of documents would be made by a lower court in what could be a lengthy process.
US officials call the drone strikes an essential element of their attacks on Al Qaeda militants and their affiliates in countries such as Pakistan and Yemen, even as those strikes ignite local anger and fray diplomatic relations.
Attacks on people born in the United States or having US citizenship have received widespread attention, and US officials have spoken, often anonymously, to media outlets about them and about other drone attacks.
Judge Thomas Griffith asked whether an anonymous statement to the media - what the ACLU calls a pattern of strategic leaks - “in facts works as an acknowledgement”. Could outlets such as The New York Times be misinformed, he asked?
Delery urged the court not to turn a case about documents into a case about leaks, and said government officials must feel free to speak with the press.
FOCUS ON PANETTA: ACLU lawyer Jameel Jaffer faced friendlier questions.
Garland told Jaffer that the lawyer had stronger arguments than he was using. “You have the president of the United States announcing, 'We have a drone programme.’ If I were you, I'd start with that,” Garland said.
Panetta, now the U.S. defence secretary, was a particular focus as the judges and Jaffer returned multiple times to speeches and interviews he gave.
In May 2009, while Panetta was CIA director, he gave a speech in which an audience member asked about drone strikes. He responded, “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.”
That statement “discloses that the CIA has a drone programme that is engaged in targeted killing,” or at least has documents related to a broader programme, Jaffer said.—Reuters