Glomar and CIA’s Propagandistic Campaign of Sanctioned Leaks

The ACLU submits briefs.

In response to Plaintiffs’ January 2010 request under the Freedom of Information Act, the CIA asserted that its use (or non-use) of drones to carry out targeted killings was a “classified fact.” The assertion was far-fetched then, but it is fantastical now.


… allowing the CIA to deny the existence of the drone program while it carries on a propagandistic campaign of officially sanctioned leaks would make a mockery of the classification system.


Indeed, the Court should approach the CIA’s arguments here with special skepticism, because the volume and consistency of media leaks relating to the CIA’s drone program strongly suggest that the government is relying on the Glomar doctrine in this Court while government officials at the same time, under cover of anonymity, disclose selected information about the program to the media. This kind of campaign of selective disclosure is precisely what FOIA was enacted to prevent.

As you can imagine, the filing makes liberal use of Jack Goldsmith’s post from the other day.

Here’s the nut of it:

The FOIA’s particular concern with selective disclosure should inform this Court’s analysis here. The Glomar doctrine cannot be construed so broadly, or the official acknowledgment exception so narrowly, as to license the very “selective disclosures, managed news, half-truths, and admitted distortions” that the FOIA was meant to preclude. For more than two years now, senior government officials have freely disclosed information about the CIA’s drone program, both on the record and off, while the CIA has insisted to this Court and others that the program cannot be discussed, or even acknowledged, without jeopardizing national security. One consequence is that the public’s understanding of the effectiveness, morality, and legality of the government’s bureaucratized killing program comes solely from the government’s own selective, self-serving, and unverifiable representations concerning it. This is not simply lamentable but dangerous, and, again, it is precisely what the FOIA was designed to prevent. This Court should vacate the judgment below and order the CIA to process Plaintiffs’ FOIA request.

5 replies
  1. Along The Same Lines says:

    Drone wars and state secrecy – how Barack Obama became a hardliner

    He was once a liberal law professor who campaigned against the Iraq war. Now, according to revelations last week, the US president personally oversees a ‘kill list’ for drone strikes in Yemen and Pakistan. Then there’s the CIA renditions, increased surveillance and a crackdown on whistleblowers. No wonder Washington insiders are likening him to ‘George W Bush on steroids’

    “Whoever gets elected, whether it’s Obama or Romney, they are going to continue this very dangerous path,” said Jesselyn Radack, who now works for the Government Accountability Project, defending fellow whistleblowers. “It creates a constitutional crisis for our country. A crisis of who we are as Americans. You can’t be a free society when all this happens in secret.”

  2. Michael Murry says:

    The usual meaningless body counts and free-fire zones that produce them.

    The blowback, though, comes round in time
    No one has yet escaped
    Vietnamized, Iraqified
    Corrupted by the raped
    The victors thus are vanquished by
    The monkeys that they aped

    (from “Boobie Counter Insurgency,” an episode of Fernando Po, U.S.A., America’s post-literate retreat to Plato’s Cave)

  3. MadDog says:

    OT – Via the NYT’s Eric Schmitt, the powers that be tell SOCOM’s out-of-control Admiral McRaven “Wait a minute!”:

    Elite Military Forces Are Denied in Bid for Expansion

    “In late April, the military’s Special Operations Command presented the State Department and Congress with an urgent request for new authority to train and equip security forces in places like Yemen and Kenya.

    The request, which included seeking approval to train foreign internal security forces that had been off-limits to the American military, was the latest effort by the command’s top officer, Adm. William H. McRaven, to make it easier for his elite forces to respond faster to emerging threats and better enable allies to counter the same dangers.

    …But in a rare rebuke to the admiral and his command, powerful House and Senate officials as well as the State Department, and ultimately the deputy cabinet-level aides who met at the White House on the issue on May 7, rejected the changes. They sent the admiral and his lawyers back to the drawing board with orders to use security assistance programs already in place, particularly one created last year by Secretary of State Hillary Rodham Clinton and the defense secretary at the time, Robert M. Gates, for just these types of issues…


    …“I was trying to figure out how to stand in front of this juggernaut that is the Special Operations Command, particularly in today’s world,” Adm. Timothy J. Keating, a former head of the military’s Northern and Pacific commands, said at a Special Operations conference in April in Washington. “I don’t fundamentally understand what needs fixing…”

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