United States District Court, District of Columbia
ROSEMARY M. COLLYER, District Judge.
The Central Intelligence Agency (CIA) engages in covert actions in foreign countries on behalf of the United States and, by necessity, practice, and statute, keeps its activities secret. The American Civil Liberties Union and the American Civil Liberties Union Foundation (collectively ACLU) are concerned about CIA activities overseas. Relying on the Freedom of Information Act, ACLU requested all CIA records pertaining to the United States' use of drone strikes to carry out targeted killings of alleged Islamist terrorists overseas. CIA initially provided a Glomar response to ACLU, i.e., it refused to confirm or deny that CIA had such records, which this Court approved. See ACLU v. Dep't of Justice, 808 F.Supp.2d 280 (D.D.C. 2011) ( Drones I ). Thereafter various government officials made public statements about a U.S. operational role in drone strikes. The D.C. Circuit reversed and ordered CIA to begin the FOIA process anew. See ACLU v. CIA, 710 F.3d. 422, 430 (D.C. Cir. 2013) ( Drones II ).
On remand, ACLU narrowed its request, and CIA searched for and acknowledged the existence of twelve legal memoranda and thousands of classified intelligence products responsive to the narrowed request. CIA released a redacted version of a classified DOJ White Paper, but has withheld the other eleven legal memoranda and all of the intelligence products on the basis that disclosing these records would compromise classified, statutorily-protected, and privileged information. ACLU objects to CIA's response and asserts that some records must be released, specifically those records that (1) contain information that has already been officially acknowledged; (2) contain legal analysis or statistical or factual information that is not intertwined with classified intelligence information; and (3) have not been shown by CIA to be subject to a privilege.
Both parties move for summary judgment. For the reasons set forth below, the Court will grant CIA's Motion for Summary Judgment and deny ACLU's Cross-Motion for Summary Judgment.
In September 2001, Congress authorized the use of military force against enemies of the United States. Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (reprinted at 50 U.S.C. § 1541 note). Since that time, the United States and its allies have been engaged in a war with al-Qa'ida and its associated forces in Afghanistan, Pakistan and elsewhere. One of the recently-used weapons by the United States is an unmanned drone, which can deliver a missile strike against an enemy target with greater precision and less risk to innocent humans than a traditional bomb. ACLU has sued CIA over its refusal to release records concerning the United States' use of drones. See Am. Compl. [Dkt. 11].
A. Original FOIA Request
In a January 13, 2010 letter,  ACLU submitted a request for documents under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to CIA's Information and Privacy Coordinator 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 CIA and the Armed Forces for the purpose of killing targeted individuals." CIA 1st Mot. [Dkt. 15], Declaration of Mary Ellen Cole (Cole Decl.), Ex. A (Jan. 13, 2010 FOIA Request) at 2. ACLU specifically requested all records containing ten categories of information:
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;
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.
Jan. 13, 2010 FOIA Request at 5-8 (emphasis omitted).
B. Prior Proceedings
CIA responded to the Jan. 13, 2010 FOIA Request on March 9, 2010, stating that "the CIA [could] neither confirm nor deny the existence or nonexistence of records responsive to [ACLU's] request." Cole Decl., Ex. B (Mar. 9, 2010 CIA Response). CIA stated 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. CIA specifically relied on FOIA Exemptions 1 and 3 as the basis for its response. Id. ACLU filed an administrative appeal on April 22, 2010 but then filed the Amended Complaint in this litigation (adding CIA as a defendant) and CIA closed the administrative file.
CIA moved for summary judgment on October 1, 2010, arguing that it could neither confirm nor deny the existence of responsive records. ACLU opposed, citing inter alia, a May 18, 2009 response to a question by then-CIA Director Leon J. Panetta after a speech, about the United States' use of drone strikes in Pakistan. Director Panetta responded:
On the first issue, obviously 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 know that some of the- sometimes the criticisms kind of sweep into other areas from either plane attacks or attacks from F-16s and others that go into these areas, which do involve a tremendous amount of collateral damage. And sometimes I've found in discussing this that all of this is kind of mixed together. But 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.
Pl. Opp'n to CIA 1st Mot. [Dkt. 20], Declaration of Alexander Abdo, Ex. B (May 18, 2009 Panetta Remarks at the Pacific Council on International Policy) at 10. ACLU also quoted from an interview Director Panetta gave to the Washington Post. Id., Ex. C at 1 ("In an interview with the Washington Post, Mr. Panetta described the drone strikes in Pakistan as the most aggressive operation that CIA has been involved in in our history.'") (quoting Joby Warrick & Peter Finn, Al-Qaida Crippled as Leaders Stay in Hiding, CIA Chief Says, Wash. Post, Mar. 17, 2010).
This Court granted CIA's Motion for Summary Judgment on September 9, 2011, finding that CIA's Glomar response was justified under FOIA Exemption 3 based on the non-disclosure provisions of the Central Intelligence Agency Act of 1949, as amended, 50 U.S.C. § 403-4 et seq. (CIA Act), and the National Security Act of 1947, as amended, 50 U.S.C. § 401 et seq. (the NSA). See Drones I, 808 F.Supp.2d at 287-93. With respect to Director Panetta's comments, the Court found that:
[C]omments by Director Panetta did not officially disclose the CIA's involvement in the drone strike program.... Even if Director Panetta were speaking squarely on the issue of drone strikes, he never acknowledged the CIA's involvement in such program. That Director Panetta acknowledged that such a program exists and he had some knowledge of it, or that he was able to assess its success, is simply not tantamount to a specific acknowledgment of the CIA's involvement in such program, nor does it waive the CIA's ability to properly invoke Glomar.
Id. at 294 (citing Wilner v. NSA, 592 F.3d 60, 70 (2d Cir. 2009) (other citations omitted)). This Court noted that "Plaintiffs seek exactly what is not publicly available-an official CIA acknowledgment of the fact that it is or is not involved in the drone strike program." Id. at 296 (citing Public Citizen v. Dep't of State, 11 F.3d 198, 201 (D.C. Cir. 1993)). This Court also ruled that CIA's Glomar response was independently authorized under FOIA Exemption 1 based on Executive Order 13526, as well as the potential damage to national security that could occur by providing insight into CIA's foreign intelligence activities. Id. at 298-301.
ACLU filed its notice of appeal on November 9, 2011. Thereafter, on January 30, 2012, President Obama appeared on a live internet video forum, and stated:
I think that we have to be judicious in how we use drones. But understand that probably our ability to respect the sovereignty of other countries... is enhanced by the fact that we are able to pinpoint-strike an al Qaeda operative in a place where the capacities of th[e] military in that country may not be able to get them. So obviously a lot of these strikes have been... going after al Qaeda suspects who are up in very tough terrain along the border between Afghanistan and Pakistan.
President Obama Hangs out with America, White House Blog (Jan. 30, 2012), http://www.whitehouse.gov/blog/2012/01/30/president-obama-hangs-out-america (last visited June 18, 2015); The White House, Your Interview with the President-2012, YouTube, at 28:37-29:23 (Jan. 30, 2012), http://www.youtube.com/watch?v=eeTj5qMGTAI; see id. at 26:20-30:18 (President Obama Hangout) (last visited June 18, 2015).
On April 20, 2012, then-Assistant to the President for Homeland Security and Counterterrorism John Brennan remarked:
So let me say it is as simply as I can. Yes, in full accordance with the law... the United States Government conducts targeted strikes against specific al-Qaida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones. And I'm here today because President Obama has ...