Earlier this week, President Obama did something unprecedented when he acknowledged the existence of the CIA’s drone campaign—the first time an American president has publicly declared that the United States is using unmanned drones to kill al Qaeda terrorists.
It is unclear whether the disclosure was inadvertent, or the result of a conscious decision by the administration to be more forthcoming about the drone program. But one of the consequences of the president’s remarks is that it exposes the program to greater risk of successful legal challenges by groups opposed to the drone campaign.
Before the president spoke, the government could argue in court that the very fact that the United States is conducting drone strikes in a given area and context was classified and thus within the scope of a “state secret” assertion. Indeed, the administration has successfully argued in previous legal cases that national security prohibits the discussion of the covert program.
Now, if a civil plaintiff were to claim harm from a drone strike in the general area and context implicitly acknowledged by Obama, the plaintiff might be allowed to proceed—even if the government could still assert state secrets privilege over specific details of an operation or the workings or techniques of the drone program. The president’s public acknowledgment of these operations has thus narrowed the ground for a “state secrets” assertion and made it at least marginally more difficult to get cases dismissed on national security grounds.
Indeed, the Washington Post reports this morning that the ACLU has already seized on Obama’s comments:
The American Civil Liberties Union asked a federal court Wednesday to force the Obama administration to release legal and intelligence records related to the killing of three U.S. citizens in drone attacks in Yemen last year.
The lawsuit, filed in the U.S. District Court for the Southern District of New York, charged the Justice and Defense departments and the CIA with illegally failing to respond to requests made in October under the Freedom of Information Act (FOIA). It cited public comments made by President Obama, Defense Secretary Leon E. Panetta and other officials in arguing that the government cannot credibly claim a secrecy defense…. Most recently, Obama made extensive comments Monday about the overall drone program — which has included hundreds of strikes against non-U.S. citizens in Pakistan, Yemen and Somalia — in an online town hall meeting. Panetta discussed it in a Sunday interview on CBS’s “60 Minutes”….
Last year, the ACLU lost a case demanding drone information from the CIA when the same court said administration comments on the drone program were not specific enough to constitute public disclosure. Wednesday’s case argues that more recent comments by Obama, Panetta and others make a mockery of that defense.
You can read the full story here.
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