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American Civil Liberties, Union, et al v. Department of Justice

September 9, 2011


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Alarmed at the reported use of unmanned drones to kill selected human targets in Pakistan, Afghanistan, and elsewhere, the American Civil Liberties Union and the American Civil Liberties Union Foundation submitted identical broad requests under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to the Central Intelligence Agency, the Department of Defense, the Department of State, the Department of Justice, and DOJ's Office of Legal Counsel for records documenting the alleged practice. When the CIA refused to admit or deny that it had any relevant records, and therefore denied the FOIA request, Plaintiffs sued and cited public comments by Leon E. Panetta, former CIA Director, to support their argument that CIA use of drones has been officially acknowledged and that a program of drone strikes is not an intelligence activity, source or method protectable from disclosure under FOIA Exemptions 1 and 3. Plaintiffs read the FOIA exemption for intelligence gathering too narrowly and Mr. Panetta's comments too broadly. Whether or not the CIA has any relevant records, that fact is exempt from disclosure under FOIA. Summary judgment will be granted to the CIA.


Plaintiffs ACLU and ACLU Foundation followed the customary path before bringing this dispute to court. The background facts are uncontested and are taken from the declaration of Mary Ellen Cole, Information Review Officer for the CIA. See CIA's Mot. for Summ. J. [Dkt. # 15] ("CIA Mem."), Ex. 1 (Declaration of Mary Ellen Cole ("Cole Decl.")). In a letter to the CIA's Information and Privacy Coordinator on January 13, 2010 (incorrectly dated as January 13, 2009), Plaintiffs submitted a FOIA request seeking "records pertaining to the use of unmanned aerial vehicles ('UAVs')-commonly referred to as 'drones' and including the MQ-1 Predator and MQ-9 Reaper-by the CIA and the Armed Forces for the purpose of killing targeted individuals." Cole Decl., Ex. A (Jan. 13, 2010 FOIA Request) ("FOIA Request") at 2. In particular, Plaintiffs were seeking "information about the legal basis in domestic, foreign, and international law for the use of drones to conduct targeted killings." Id.

By letter dated March 9, 2010, the CIA issued a final response to Plaintiffs' request, stating that "the CIA can neither confirm nor deny the existence or nonexistence of records responsive to your request." Id., Ex. B (Mar. 9, 2010 CIA Response). The CIA explained that the "fact of the existence or nonexistence of requested records is currently and properly classified and is intelligence sources and methods information that is protected from disclosure by section 6 of the CIA Act of 1949, as amended." Id. The CIA cited FOIA Exemptions 1 and 3 as the basis for its response. Id. Plaintiffs appealed this denial on April 22, 2010. Before the appeal was decided, Plaintiffs filed an amended complaint on June 1, 2010, adding the CIA as defendant.*fn1 The CIA thereafter closed the administrative appeal file.

Plaintiffs seek information on "drone strikes;" a term used by Plaintiffs (and the Court for the sake of consistency) to mean the "targeted killing" of a human with a drone. Paraphrasing the ten categories of information listed in the FOIA request, Plaintiffs seek records pertaining to:

1. The "legal basis in domestic, foreign and international law upon which unmanned aerial vehicles" can be used to execute targeted killings, including who may be targeted with this weapon system, where and why;

2. . . . .

3. The "selection of human targets for drone strikes and any limits on who may be targeted by a drone strike;"

4. "[C]ivilian casualties in drone strikes," including measures to limit civilian casualties;

5. The "assessment or evaluation of individual drone strikes after the fact," including how the number and identities of victims are determined;

6. "[G]eographical or territorial limits on the use of UAVs to kill targeted individuals;"

7. The "number of drone strikes that have been executed for the purpose of killing human targets, the location of each such strike, and the agency of the government or branch of the military that undertook each such strike;"

8. The "number, identity, status, and affiliation of individuals killed in drone strikes;"

9. "[W]ho may pilot UAVs, who may cause weapons to be fired from UAVs, or who may otherwise be involved in the operation of UAVs for the purpose of executing targeted killings," including records pertaining to the involvement of CIA personnel, government contractors, or other non-military personnel, and;

10. The "training, supervision, oversight, or discipline of UAV operators and others involved in the decision to execute a targeted killing using a drone."

Cole Decl., Ex. A (Jan. 13, 2010 FOIA Request) at 5--8 (emphasis omitted). In briefing, Plaintiffs abandoned their request of the CIA for information on category 2 and subcategory 1(B) as listed in the FOIA request, both of which concern records on the understanding, cooperation or involvement of foreign governments in drone strikes. See Pls.' Opp'n & Cross-Mot. for Summ. J. [Dkts. ## 20, 21] ("Pls.' Opp'n") at 3.


Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party; however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252.

Federal district courts have original jurisdiction over civil actions arising under federal statutes. See 28 U.S.C. § 1331. As Plaintiffs bring suit under FOIA, this Court has original jurisdiction. FOIA cases are typically and appropriately decided on motions for summary judgment. See, e.g., Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13 (D.D.C. 1980); Reliant Energy Power Generation, Inc. v. FERC, 520 F. Supp. 2d 194, 200 (D.D.C. 2007).

Jurisdiction in a FOIA case is dependent upon a showing that an agency has (1) improperly (2) withheld (3) agency records. U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989); United We Stand America, Inc. v. IRS, 359 F.3d 595, 598 (D.C. Cir. 2004). The agency bears the burden to demonstrate -- not the requester to disprove -- that it has not improperly withheld agency records. Tax Analysts, 492 U.S. at 142 n.3. This is consistent with the purpose of FOIA which was "enacted to facilitate public access to Government documents," U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991), in order "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976). "Consistently with this purpose, as well as the plain language of the Act, the strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents." Ray, 502 U.S. at 173.

An agency may meet its burden solely on the basis of information provided in agency declarations that describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstratethat the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). "[C]onclusory affidavits that merely recite statutory standards, or are overly vague or sweeping will not, standing alone, carry the government's burden." Larson v. Dep't of State, 565 F.3d 857, 864 (D.C. Cir. 2009). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." Id. at 862 (internal quotation marks omitted). Further, the "court owes substantial weight to detailed agency explanations in the national security context." King v. U.S. Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). A "defendant in a FOIA action is entitled to summary judgment if the defendant proves that it has fully discharged its obligations under the Act." Reliant Energy, 520 F. Supp. 2d at 200.

The exemptions under FOIA "cover not only the content of protected government records but also the fact of their existence or nonexistence, if that fact itself properly falls within the exemption." Larson, 565 F.3d at 861. Thus, an agency may refuse to confirm or deny the existence of responsive records -- an answer commonly known as a Glomar response -- when "to answer the FOIA inquiry would cause harm cognizable under an FOIA exception." Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982); see also Larson, 565 F.3d at 861. A Glomar response takes its name from the Hughes Glomar Explorer, an oceanic research vessel at issue in the case that first authorized the government to refuse to confirm or deny the existence of records responsive to a FOIA request. See generally Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976).


Neither side disputes the customary principles that govern FOIA requests to the CIA. In this matter, the CIA has invoked FOIA Exemptions 1 and 3 to justify its Glomar response. The CIA "invoked the Glomar response in this case because confirming or denying the existence or nonexistence of CIA records responsive to Plaintiffs' FOIA request would reveal classified information that is protected from disclosure by statute. . . . [S]uch a response would implicate information concerning clandestine intelligence activities, intelligence sources and methods, and U.S. foreign relations and foreign activities." Cole Decl. ¶ 12; see also ¶ 15 ("[T]he CIA asserted a Glomar response to Plaintiffs' request because the existence or nonexistence of CIA records responsive to this request is a currently and properly classified fact, the disclosure of which reasonably could be expected to cause damage to ...

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