Second Circuit deems classified documents relating to the 2014 government-sanctioned drone killing of three Americans as exempt from disclosure under the Freedom of Information Act (ACLU v. DOJ)

The Policy

What it does

Provides guidance on the type of documents that are exempt from the Freedom of Information Act and limits public inquiry into government drone strikes.

Synopsis

ACLU v. United States DOJ, 844 F.3d 126 (2d. Cir. 2016) is a decision regarding the  the disclosure of documents regarding US drone strikes that killed Americans Anwar Al-Awlaki, Samir Khan, and 16-year-old Abdulrahman Al-Awlaki in Yemen in 2011. The American Civil Liberties Union (ACLU) was seeking the documents under the Freedom of Information Act (FOIA), which grants the public the right to request access to records from federal agencies.

The published opinion is heavily redacted because it considers information that the court ultimately deemed classified.  However, the decision had five core holdings:

  1. The continued withholding of 52 challenged documents is warranted;
  2. An internal Department of Justice (DOJ) memo, which summarized a meeting at which the legal justification for the killings was discussed, is pre-decisional, and therefore falls within the scope of FOIA’s exemption for inter-agency or intra-agency memoranda;
  3. A draft of paragraphs relating to the legal justification for the drone strikes was pre-decisional, and therefore exempt from FOIA disclosure;
  4. A set of suggested talking points on the legal bases for drone strikes, as well an internal outline of classified facts and some fragmentary discussion of legal advice, are exempt as pre-decisional;
  5. A draft of an unpublished op-ed article that suggested ways to justify the DOJ’s legal reasoning is also exempt as it was pre-decisional; and
  6. Two documents, CIA 109 and 113, which the District Court disclosed in part, are informal and preliminary. The second is unsigned and undated. Despite the redactions, some phrases are still entitled to secrecy. Although both appear to have been written after the action they comment on, they are nonetheless pre-decisional with respect to the formulation of a policy or a clear legal position.

Although increasingly regulated at the local, state, and federal level, this decision exhibits the extent to which the federal government’s use of drone strikes—lethal attacks by unmanned aircraft—abroad is legally shielded from public scrutiny. Though controversial, the use of unmanned aerial assault vehicles in the global war on terror is ever increasing.

Context

The Science

Science Synopsis

Drones are often referred to in the military context as Unmanned Aerial Vehicles (UAVs) or Remotely Piloted Aerial Systems (RPAS). Their value comes from the fact that they can be controlled and operated remotely, allowing the unmanned aircraft to perform strikes or gather intelligence on missions that would generally be considered too dangerous for a servicemember to perform.

Military drones, such as the MQ-1B Predator, are controlled via a communications satellite link from a military ground-control station. Using GPS technology, the drone relays its position to a remote Air Force crew, who are able to maneuver the drone and control its onboard equipment. The Predator, originally designed as a surveillance drone, is equipped with onboard sensors, cameras, image intensifiers, radar, infra-red imaging, and laser targeting systems to aid pilots in intelligence, surveillance, reconnaissance, and targeted strikes. Certain versions of the Predator drone are outfitted with laser-guided Hellfire missiles.

Relevant Experts

Missy Cummings, PhD, Professor in the Department of Mechanical Engineering and Materials Science, Duke University. Dr. Cummings’ research interests include human-unmanned vehicle interaction, human-autonomous system collaboration, human-systems engineering, public policy implications of unmanned vehicles, and the ethical and social impact of technology.

Robert Sparrow, PhD, Professor of Philosophy, Monash University. Dr. Sparrow’s primary research interests are bioethics, political philosophy and applied ethics.


The Debate