Is a drone strike an intelligence activity?
This was a question posed by judge David Tatel of the on Wednesday.
Tatel and colleagues Thomas Griffith and David Sentelle were considering the latest chapter of brought by the American Civil Liberties Union (ACLU) for the release of CIA lists of drone killings.
Since 2010 the ACLU has been fighting in the courts to find out when, where, and against whom have been authorised, and how the US ensures compliance with international laws relating to extrajudicial killings.
The definition of “intelligence” is crucial because, under an executive order, the government is allowed to withhold information about intelligence activities for national security reasons. So on Wednesday, Tatel pondered whether a drone strike counts as an intelligence activity.
Unsurprisingly, the rival lawyers disagreed. Sharon Swingle of the Department of Justice, representing the government, said: “Our position is that yes, it is. It pertains to intelligence because of the question of who the intended target is, who is actually killed, what their status is, the identity of the agency doing it, the location, the date.”
When Sentelle expressed scepticism over whether a strike is intrinsically an intelligence activity, Swingle conceded that a strike “concerns” such activity.
Jameel Jaffer, deputy director of the ACLU, saw it differently. “I don’t think that the drone strike in itself is an intelligence source or method. I don’t take the government to be arguing that. I take the government’s argument to be that disclosing the kind of information we’ve asked for would tend to reveal sources and methods.”
Drone strikes have become a frequent and controversial tool in countries including Afghanistan, Iraq, Pakistan, Somalia, Syria and Yemen. The government often maintains secrecy around the programme yet is quick to announce the killing of Isis targets such as Mohammed Emwazi, known as “Jihadi John”, in Syria.
The ACLU is seeking “summary strike data” that would show identities of targets, numbers of people killed, dates and other information. It also wants legal memos on the government’s use of drones to conduct premeditated killings. The initially insisted that it could not confirm or deny whether it even owned records related to drones.
The DC circuit appeals court the CIA’s position in 2013, saying it “beggar[ed] belief” that the agency did not have such records given the numerous public statements by government officials about the programme and the agency’s role in it.
The case returned to the district court but while the CIA acknowledged that it had some records, it refused to say how many or identify any specific ones. In June last year its position was upheld by the district court, which said the CIA could withhold the documents, prompting the ACLU to lodge an appeal.
Jaffer told the court in Washington on Wednesday: “I think this is not just an unusual case but a unique case ... This court has already rejected some of the CIA’s representations as illogical and implausible ... The CIA’s representations turned out to be not well founded.”
He also questioned the contention that revealing the lists would harm national security. “Our view is that the harm analysis has to be informed by the fact that drone strikes themselves are not secret. People witness them overseas every day; it’s not a secret to them. It’s a secret, if it’s a secret at all, only to us.
“The harm analysis also has to take into account the government’s continuing disclosures about the programme ... The government should not be permitted to keep claiming that all this is a secret.”
Jaffer also filed a letter with the court noting that a book written by general , director of the CIA during the last three years of the George W Bush administration, will be published next week. The publisher’s note indicates that Hayden will address the CIA’s role in the targeted-killing campaign, the expansion of the campaign after 2008 and its purported effectiveness.
Publicity material for the book says: “This was a time of great crisis at CIA, and some agency veterans have credited Hayden with actually saving the agency. He himself won’t go that far, but he freely acknowledges that CIA helped turn the American security establishment into the most effective killing machine in the history of armed conflict.”
After the oral arguments hearing, which deferred judgment to a later date, Jaffer told reporters: “We were frustrated by the fact that the government continues to pretend that all this is a secret while senior officials, both current and former, almost daily disclose information about the programme. At a certain point I think it starts to implicate the court’s credibility and integrity.”
Explaining the fundamental motivation behind the legal action, he added: “This is one of the government’s most significant counter-terrorism policies. It shouldn’t be the case that the government alone gets to decide what the public knows about it and what it doesn’t know. At some point the secrecy just becomes a fiction. It’s more about controlling perceptions of the drone programme inside the United States than it is about protecting national security.”