September 21, 2012

Written by

Jack Serle
This page is archived from original Bureau of Investigative Journalism reporting on US military actions in Yemen, Somalia, Pakistan and Afghanistan.

Appeals court judges scrutinised the US government’s secrecy bid. (

Three federal appeal court judges greeted US government efforts to block the release of information on the CIA’s targeted killings programme with skepticism on Thursday, as they grilled the administration’s lawyers for double the scheduled time.

The American Civil Liberties Union (ACLU) is challenging the Obama administration to reveal records of the CIA’s drone programme, including the legal basis and policy decisions that allow the intelligence agency to target and kill alleged militants in foreign countries.

But the government refuses even to confirm or deny whether the records exist. Judge Merrick Garland responded by saying that the government was asking the court to say ‘the emperor has clothes, even when the emperor’s boss’ says the emperor does not have clothes’, according to AP.

Sitting in the Washington DC circuit appeals court, Judge Garland put it to the government legal team that a speech by John Brennan, President Obama’s chief counter terrorism adviser, amounted to an official acknowledgment of the CIA drone programme.

Jameel Jaffer, ACLU deputy director, who gave evidence to the court, later told the Bureau: ‘All three judges questioned the government aggressively about the disconnect between its position in court…and the many statements it has made publicly about the programme.’

But Department of Justice lawyers stuck to their position that the government has not officially acknowledged the CIA’s use of drones.

‘Hardly secret’

Yesterday’s hearing was the latest installment of a two-and-half year legal battle between the ACLU and the US government.

The human rights group is also suing the government to reveal information about the killing of Anwar al Awlaki in a US drone strike in Yemen last year, and a cruise missile strike in Yemen in 2009 that killed 22 children. The ACLU is also helping al Awlaki’s family to bring cases against former CIA director and current Secretary of Defence Leon Panetta, and President Obama.

The Bureau is one of a number of bodies that has filed an amicus brief with the Washington DC court in support of the ACLU’s argument, saying: ‘The existence of the CIA’s targeted killing programme… is so widely acknowledged and heavily reported upon that it can hardly be called a secret anymore.’

The government’s justification for refusing to give up information about its drone strikes is only applicable if the government has not officially acknowledged the CIA is using the unmanned aerial vehicles in Pakistan. Last year a district court decided in the government’s favour.

The ACLU is now appealing that decision, saying that senior members of the Obama administration, including Obama and Panetta, have openly discussed the programme in speeches and interviews.

The ACLU believes this equates to official acknowledgement of an eight-year campaign that has seen the CIA launch 344 drone strikes, killing between 2,562 and 3,325 people in Pakistan. At least 474 of those killed were civilians and 176 children, according to data collected by the Bureau.

‘I continue to feel that anyone who reads these statements can’t possibly come away with the impression that the CIA has done anything except acknowledge that it uses drones to carry out targeted killings,’ said Jaffer.