The government seems to claim in court that the drone program in Pakistan is an official "secret." That's plain absurd.
If it’s a secret, it’s surely one of the worst kept secrets in the world. Although the U.S. government has tried for more than a decade to shroud its use of drones to conduct targeted killings abroad in official secrecy, its latest effort is extraordinary.
In August 2016, the government blacked out a court ruling against government secrecy (yes, really), hiding from the public its reasons for why the ruling should remain secret. Then, it also hid its reasons for appealing that ruling to a higher court. In our latest attempt to shed light on this controversial lethal program through Freedom of Information Act litigation, we explained to the appeals court why we think the government’s appeal is about a fact that everyone knows to be true: the United States has a targeted killing program in Pakistan. But first, marvel with us at what a public court filing from the government has to say:
Here’s what the world knows: Since the inception of the U.S. targeted killing program over a decade ago, the use of lethal drones outside of war zones has dramatically expanded. The United States has conducted drone strikes in Yemen, Somalia, and Libya — but its longest and most relentless effort has taken place in Pakistan. The United States has carried out over 400 drone strikes in Pakistan since 2004, killing thousands of people, including hundreds of civilians, according to independent research and reporting. Human rights organizations and media have regularly reported on drone strikes there. Government officials, too, have confirmed the use of U.S. drones in Pakistan. In just one example, in 2015, Leon Panetta, the former CIA director, acknowledged that he personally approved the targeted killing by drone of an alleged al-Qaeda operative in the country.
Remarkably, though, the government still claims that the existence of a drone program in Pakistan is a secret. And while overbroad and official secrecy is too-often par for the course when it comes to the government’s approach to national security matters, its approach to this particular “secret” is exceptional. The government claims that neither it nor the courts can even talk about the topic publicly — even in the context of examining whether the government’s claimed secrecy is justified at all.
Last year, we provided evidence to a district court that government officials had “officially acknowledged” a long list of information concerning its targeted killing program. Under FOIA, courts have held that information is “officially acknowledged” only when the government has made public, on-the-record statements that specifically confirm it. Once the government has “officially acknowledged” information, it can no longer rely on secrecy claims to withhold it from the public. As we’ve explained before, this rule ensures that the government cannot make self-serving claims about the legality and wisdom of its actions but then deny fuller information that allows the public to assess the accuracy of the government’s claims.
One of the items on our list of “official acknowledgments” was evidence that the United States conducts targeted killings in Pakistan using drones. This evidence included a statement straight from former Secretary of State John Kerry, made in an August 2013 interview on Pakistani television. When Secretary Kerry was asked by the Pakistani journalist if he envisaged a timeline for ending U.S. drone strikes in Pakistan, Secretary Kerry responded that he did, and that “the president has a very real timeline and we hope it’s going to be very, very soon.” That’s a straightforward acknowledgment, and one that made headlines around the world.
Here’s where things get weird. In the district court’s opinion, which the government reviewed and before it was publicly issued, the court apparently addressed our argument about the Kerry acknowledgment — but the government blacked out what the court said. Then, the government appealed the court’s decision, but wouldn’t say what, exactly, it was appealing.
Despite the government’s liberal use of the black-out pen, we are fairly certain that it relates to former Secretary Kerry’s statement. If we’re right, it’s absurd that the government is arguing with a straight face that U.S. targeted killing in Pakistan is an official secret. Besides Secretary Kerry’s plain words, the Pakistani government has publicly condemned U.S. drone strikes dozens of times. President Obama himself discussed U.S. drone strikes in Pakistan in a live Google Plus hangout. And, again, former CIA Director Panetta has openly talked about his decision to “take the shot” and execute a suspected terrorist with a drone there. But when it comes to U.S. courts and disclosures to the American public, the government apparently thinks the drone program in Pakistan is still an official secret.
FOIA allows the government to protect legitimate secrets — but this, plainly, is not one of them. In a similar case several years ago, the D.C. Circuit ruled in our favor when the CIA tried to keep information about the very existence of its drone program from the public. The court explained that it couldn’t give its “imprimatur to a fiction of deniability that no reasonable person would regard as plausible.” This was because “‘[T]here comes a point where . . . Court[s] should not be ignorant as judges of what [they] know as men’ and women.”
In other words, sometimes, enough is enough — and that’s exactly what we asked the appeals court to say about the supposedly “secret” fact that the United States uses drones in Pakistan.