DC Circuit Sends CIA’s Glomar Claims Back to the Drawing Board

The DC Circuit just remanded the ACLU’s drone targeted killing lawsuit (the one I talked about here) to the District Court.

The decision is based on a theory Merrick Garland used in the hearing (which Wells Bennett analyzed here). Whether or not the CIA had admitted to the agency being involved in drones, it had admitted to having an interest in them. Which makes any claim that it cannot reveal it has documents ridiculous.

And there is still more. In 2009, then-Director of the CIA Leon Panetta delivered remarks at the Pacific Council on International Policy. In answer to a question about “remote drone strikes” in the tribal regions of Pakistan, Director Panetta stated:

[O]bviously 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 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.8

It is hard to see how the CIA Director could have made his Agency’s knowledge of — and therefore “interest” in — drone strikes any clearer. And given these statements by the Director, the President, and the President’s counterterrorism advisor, the Agency’s declaration that “no authorized CIA or Executive Branch official has disclosed whether or not the CIA . . . has an interest in drone strikes,” Cole Decl. ¶ 43; see CIA Br. 43, is at this point neither logical nor plausible.

It is true, of course, that neither the President nor any other official has specifically stated that the CIA has documents relating to drone strikes, as compared to an interest in such strikes. At this stage of this case, however, those are not distinct issues. The only reason the Agency has given for refusing to disclose whether it has documents is that such disclosure would reveal whether it has an interest in drone strikes; it does not contend that it has a reason for refusing to confirm or deny the existence of documents that is independent from its reason for refusing to confirm or deny its interest in that subject. And more to the point, as it is now clear that the Agency does have an interest in drone strikes, it beggars belief that it does not also have documents relating to the subject.

But again, there is more. In the above-quoted excerpt from the CIA Director’s Pacific Council remarks, the Director spoke directly about the precision of targeted drone strikes, the level of collateral damage they cause, and their usefulness in comparison to other weapons and tactics. Given those statements, it is implausible that the CIA does not possess a single document on the subject of drone strikes. Unless we are to believe that the Director was able to “assure” his audience that drone strikes are “very precise and . . . very limited in terms of collateral damage” without having examined a single document in his agency’s possession, those statements are tantamount to an acknowledgment that the CIA has documents on the subject.

This is where things might get interesting. Garland sent the case back to the District for CIA to produce a Vaughn Index or something similar, but left open the possibility Judge Rosemary Collyer could accept something other than a detailed Vaughn Index.

With the failure of the CIA’s broad Glomar response, the case must now proceed to the filing of a Vaughn index or other description of the kind of documents the Agency possesses, followed by litigation regarding whether the exemptions apply to those documents.


Just how detailed a disclosure must be made, even in an index, is another matter. A Vaughn index indicates in some descriptive way which documents the agency is withholding and which FOIA exemptions it believes apply. As the plaintiffs acknowledge, there is no fixed rule establishing what a Vaughn index must look like, and a district court has considerable latitude to determine its requisite form and detail in a particular case.

It even entertained accepting a No Number No List response, just like the one recently accepted in the Awlaki FOIA.

A Glomar response requires the agency to argue, and the court to accept, that the very fact of the existence or nonexistence of responsive records is protected from disclosure. That is conceptually different from conceding (or being compelled by the court to concede) that the agency has some documents, but nonetheless arguing that any description of those documents would effectively disclose validly exempt information. There may be cases where the agency cannot plausibly make the former (Glomar) argument with a straight face, but where it can legitimately make the latter.

Collyer has actually been more open to CIA’s outrageous claims than Colleen McMahon in SDNY. So it’s likely she’ll take this opportunity to permit a No Number No List response.

Still, I keep wondering how long the CIA will be able to sustain a Glomar (or limited Glomar) when they’ve got a document pertaining to its role in targeted killing sitting out there in plain sight — the Stephen Preston speech talking about the legal process CIA uses before it engages in lethal force operations. CIA effectively Glomared that speech in SDNY.

The DC Circuit seems most concerned about the absurdity of the government’s public position.

In this case, the CIA asked the courts to stretch that doctrine too far — to give their imprimatur to a fiction of deniability that no reasonable person would regard as plausible. “There comes a point where . . . Court[s] should not be ignorant as judges of what [they] know as men” and women.

Maybe it’s just me. But I find the Glomaring of a speech given as part of a whole series of speeches on drone killing to reach that same level of absurdity.

So we shall see just how much absurdity the courts continue to allow.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

9 replies
  1. Peterr says:

    Shorter DC Circuit: “These ARE the drones you’re looking for.”

    Marcy, as I read the blockquotes you’ve got above, I don’t get the sense that the DC Circuit is necessarily saying that the CIA can get away without a Vaughn index disclosure in this case, but they’re trying to be more “above the fray” in their role as as an appellate court. That is, I think the issue that looms larger in their thinking is the relationship between the district court and the appeals courts. They are trying to give the district court judge the leeway as the finder of fact to examine the specifics first (or the CIA/DOJ to hang themselves further), rather than to do that themselves.

    In so doing, I sense that the circuit judges are trying to remove a potential avenue for appeal of their ruling, where they CIA would run to SCOTUS shouting “The appeals court exceeded their authority here . . .”

  2. What Constitution? says:

    This is a court that recognizes that if it is to retain any credibility it has to demand credibility and render decisions that possess credibility themselves. In this particular regard, the structure of this decision is potentially a very good message — the Court of Appeals here actually reversed the trial judge’s absurd deference to specious CIA nonsense and sent the case back down. The CIA itself appears to have tried to avoid having this happen by actually submitting an appellate request for a remand — but the CIA’s grounds for that suggestion were based on the subsequent admissions and statements made in the Second Circuit litigation, which happened after the trial court had ruled in this case. The DC Circuit here wasn’t buying into that and did not take the CIA up on the gambit of trying to get the case sent back without passing upon whether the original grounds urged for dismissing the ACLU’s FOIA case (the repeated statements of the President and the CIA Director), considered alone, were insufficient to constitute “acknowledgement”. The DC Circuit said that, yes, of course when the CIA stipulates in another case that may change things here, but the DC Circuit still reviewed, and found wanting, the specious arguments that were “deferred to” by the District Court in originally dismissing this case. It does so emphatically. And that is saying something: in the bullshit environment that has been contributing to judicial abdication of responsibility that has become so pervasive that the very predictability of judicial cowardice has become a core element of the executive’s arrogance in presuming the degree of deference can be counted on to expand exponentially with every successive court test. This court, this time, has called bullshit.

    It remains true that, on remand, the District Court will have to address specific “secrecy” arguments specifically (since the basis of the last ruling was acceptance of the CIA’s contrary-to-reality contention that even knowing whether any documents exist at all was so very unjustifiable). But at least the District Judge will do so knowing that it is not “obligated” to ignore reality, common sense and credibility when doing so. That is actually a step forward, as tragic as it sounds, and that is much better than a poke in the eye with a sharp stick.

    Maybe, just maybe, these DC Circuit judges felt a few pangs of concern when it was brought to their attention that Judge McMahon had felt she had no recourse but to go on record remarking about the absurdity of the stare decisis straitjackets being woven by increasingly absurdist “deference” language being patriotically bandied about by some courts. Judge McMahon ruled in favor of the government in a FOIA case, but not without making it perfectly clear that she felt constrained to turn a blind eye to plainly unconstitutional conduct in doing so, writing “I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret. “ That was a FOIA case. And Chief Judge Garland of the DC Circuit, in today’s FOIA decision, takes a needed step back in emphasizing that it isn’t the courts’ job to simply accept any and every excuse for secrecy tossed against the wall by the government: “In this case, the CIA asked the courts to stretch that doctrine too far — to give their imprimatur to a fiction of deniability that no reasonable person would regard as plausible. ‘There comes a point where . . . Court[s] should not be ignorant as judges of what [they] know as men’ and women.”

    It’s nice to have that written down somewhere in the Federal Reporter.

  3. Frank33 says:

    The Secret Government has used National Security Letters, NSL. These are secret orders from the secret government that have the force of law. According to Eric Holder, is a crime to talk about receiving one. It is a crime to legally ask for due process against these atrocities.

    A Federal Judge has objected. We will see who wins this battle. The CIA calls these kind of judges “drone targets”.

    U.S. District Judge Susan Illston ordered the government to stop issuing so-called NSLs across the board, in a stunning defeat for the Obama administration’s surveillance practices. However, she also stayed her order for 90 days to give the government a chance to appeal to the Ninth Circuit Court of Appeals.

  4. Peterr says:

    @Frank33: Even with the stay, I think someone at the DOJ will be working hard this weekend, so as to be able to explain things to the boss on Monday morning.

  5. thatvisionthing says:

    ianal, and this is just embarrassing:

    A Glomar response requires the agency to argue, and the court to accept, that the very fact of the existence or nonexistence of responsive records is protected from disclosure.

    Mind wanders: Judge Rules White Girl Will Be Tried As Black Adult

  6. beowulf says:


    That’s exactly what Glomar refers to. Howard Hughes was funded by Uncle Sam– likewise, as it happens, Robert Ballard’s discovery of Titanic, for the same reason, to explore sunk nuclear submarines.

    In response to a FOIA request regarding Hughes’s Glomar Explorer, the CIA would neither confirm or deny it had documents related to it. The “neither confirm nor deny” answer is now known as a “Glomar response”.

  7. Thomas says:

    This all makes me think the judges must find that this administrations dismissive attitude has gone far too far! The judges are O.K. with being lap dogs, but not door mats. Once the judiciary starts treating lies and obfuscations as real, the rule of law is doomed and the judges become decorative….. “Look WE got LAW, see… See the judges judge!” Death is life, black is white and we’re the good guy, even when we target….. CHILDREN to make the Caspian Corridor safe for Exxon, Enron and Conocco. It’s the old. The old practicioner Hermann Goering is of course is preferred.. ““The bigger the lie, the more people will believe it.” and the most applicable…. “All you have to do is tell them they are being attacked, and denounce the [(peacemakers)–Substitute judiciary] for lack of patriotism and exposing the country to danger. It works the same in any country.”

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