ACLU Asks Court To Force Government To Fight Fairly In FOIA Lawsuit Over Drone Strike Docs

from the this-is-some-[redacted]-right-here dept

The ACLU is headed to the Second Circuit Appeals Court, hoping to force the DOJ to be more... realistic about the government's drone strike operations in Pakistan. It's an FOIA lawsuit, with the ACLU seeking drone documents and being told -- in so many black bars -- that this publicly-acknowledged program is too secret to disclose.

The ACLU goes into this battle fighting blind:

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.

The DOJ argues the Pakistan drone strike program has never been officially acknowledged or disclosed. Going from there, it argues it shouldn't have to turn over the information the ACLU is requesting. But, as the ACLU points out, there's plenty of public knowledge about the program's existence. From the ACLU's filing [PDF]:

In this case, the government has not made public the subject of its appeal, and it has redacted any reference to the ruling it challenges from the district court’s opinion. But as best as the ACLU can tell, the appeal asks this Court a simple question: Is it a secret that the United States conducts drone strikes in Pakistan? To answer that question, the Court need only read the plain words, spoken in public while in Pakistan, by the United States’ former Secretary of State. Reading those words, the only logical and plausible answer to that question is “no.”

Here's John Kerry's statement on the program the DOJ says no one is talking about because it arguably may not officially exist:

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.”

Journalists, activists, human rights advocates, and Pakistani citizens have gathered plenty of data on drone strikes the US may or may not be performing. More than 400 strikes have been reported since 2004. And yet, the government claims nothing can be disclosed -- much less discussed openly in court -- because it's a "secret" operation.

In the last courtroom round, the ACLU handed this info to the judge and then watched the government take its paperwork and arguments somewhere the ACLU couldn't participate.

Nevertheless, in the district court, the government argued that former Secretary of State Kerry’s words did not amount to an official disclosure, and it did so in open court. Once the district court apparently agreed with the ACLU, however, the government took its arguments—and the court’s ruling—behind closed doors. The ruling at issue is hidden behind redactions, as are the government’s arguments on appeal. What’s more, the government now asks this Court to erase the district court’s ruling from the books—perhaps even without deciding whether the information at issue is actually a secret.

The ACLU is now asking the Appeals Court to make this a fairer fight.

The ACLU has endeavored to respond to the government’s arguments as comprehensively as possible. However, almost 60% of the publicly filed version of the government’s opening brief is redacted, and the government has eliminated every reference to the district court ruling that it challenges from its brief and the opinion itself. It is therefore possible that the ACLU misconstrued or failed to identify some of the government’s arguments.

You can't fight what you can't see. The government wants the district court's ruling (in favor of the ACLU) overturned and has left the ACLU with the least-useful 40% of its briefing to work with. Before everything gets considered by the court, the ACLU would at least like a second stab at a brief, possibly with the assistance of some less-redacted documents.

The ACLU seeks to litigate this case fairly, and to be as helpful as possible to the Court in adjudicating it. To that end, the ACLU asked the government to review again the redactions in the district court’s opinion before the government filed its appellate brief so that the parties could meaningfully address the relevant issues on appeal. In response, the government asserted that no further information could be provided. Therefore, if the ACLU did not address a particular issue the Court deems important to the resolution of this case, the ACLU would welcome the opportunity to submit supplemental briefing, with the benefit of the Court’s (rather than solely the government’s) views about what can and cannot be said in open court.

Everything's so secret no one can look at it (at least no one who doesn't work for the government) and no one can talk about it (except those who work for the government). The government is using claims of national security to stack the deck in this litigation. Hopefully, the appeals court will realize it can't hold a fair hearing if one side remains blindfolded.


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  • identicon
    Yes, I know I'm commenting anonymously, 31 Jul 2017 @ 3:54am

    And hopefully, the court creates precedent that the government may no longer claim publicly available information to still be secret.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Jul 2017 @ 4:22am

    Fairness

    Hopefully, the appeals court will realize it can't hold a fair hearing if one side remains blindfolded.

    I remember as a child being told about Santa Clause, the fairness of the legal system, and other such fantasies.

    reply to this | link to this | view in chronology ]

  • identicon
    Harley, 31 Jul 2017 @ 5:16am

    Everything old is new again

    From Doonesbury: 10 Nov, 73

    reply to this | link to this | view in chronology ]

  • identicon
    lost the balance, 31 Jul 2017 @ 5:52am

    lost the balance

    "When the USA loses the balance, then the whole world is plunged into unimaginable war and bloodshed." Nostradamus

    What you have here is the usa losing the balance. What you have next is unimaginable war.

    reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 31 Jul 2017 @ 6:24am

      Re: lost the balance

      Good 'ol Nostradamus. Make a prediction so utterly vague that it'll be applied to WWII, WWI, the Napoleonic Wars and countless others.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 31 Jul 2017 @ 6:25am

      Re: lost the balance

      A guy who died in 1566 directly referenced a country by name that wasn't founded until 1776? He was a more talented prophet than I realised!

      reply to this | link to this | view in chronology ]

  • icon
    Roger Strong (profile), 31 Jul 2017 @ 6:16am

    But... but...

    If they acknowledge the drone strikes, they they'll have to acknowledge a few related unpleasantries.

    Like their record of killing 49 innocent civilians for every known terrorist, according to a joint study by Stanford and New York Universities of drone strikes in Pakistan.

    And the US's use of "double-taps" - something the US itself calls terrorism - and international law experts call war crimes - where after the first strike they'll send in more missiles to target rescuers.

    You wouldn't want anyone thinking that American military contractors and the agencies they're in bed with, are creating the next generation of anti-American terrorists to kick-start the next war. Why, that would be as silly as the telecommunications industry being in bed with the FCC boss and working against Americans' interests.

    Best to keep it a secret so the Pakistanis don't find out about it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Jul 2017 @ 10:10am

      Re: But... but...

      international law experts call war crimes...

      It's only a crime when other people do it. When the US does it that automatically means it's not a crime.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Jul 2017 @ 7:03am

    The Kind is naked

    Pretending that things are still secret is the favorite game of the government. The break literally every law by spying on you in every way possible, yet disarm any and all attempts to fight these illegal actions in court by pretending that the Kind is wearing clothes and anyone stating otherwise is automatically guilty.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Jul 2017 @ 7:51am

    Simple solution

    Make it law that the judges are only allowed to base their ruling on the documents that both sides are permitted to read. If the government wants to file its arguments under heavy redactions, that's fine, but the judge is going to read the same redacted form as the defense. If any important arguments are hidden behind redactions, the judge won't see them and will necessarily ignore them (or, if he/she is feeling particularly uncharitable, hold it against the government for making the brief harder to read).

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anthony Scaramucci, 31 Jul 2017 @ 8:26am

    This is BullShit!

    I'm not trying to suck any cocks here! But someone needs to fuckin FRONT STAB THE SHIT out of this fucking lawyer!!!

    And if you are confused, I'm talking about the GD ACL mutha fucking U!

    I said it's not secret, Don said it's not secret, FUCK, even those fag, cocksuckers Kerry n Bannon, and don't tell me that's not a thing, said it's not secret. So STFU and get to work on my divorce case!! That bitch only deserves the dick she's already got!

    MOOCH OUT!!!

    Brought to you by the Press Corpse of The Whithouse of The United States of America

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anthony Scaramucci, 31 Jul 2017 @ 8:26am

    This is BullShit!

    I'm not trying to suck any cocks here! But someone needs to fuckin FRONT STAB THE SHIT out of this fucking lawyer!!!

    And if you are confused, I'm talking about the GD ACL mutha fucking U!

    I said it's not secret, Don said it's not secret, FUCK, even those fag, cocksuckers Kerry n Bannon, and don't tell me that's not a thing, said it's not secret. So STFU and get to work on my divorce case!! That bitch only deserves the dick she's already got!

    MOOCH OUT!!!

    Brought to you by the Press Corpse of The Whithouse of The United States of America

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 31 Jul 2017 @ 10:09am

    Everyone saw the UFO hovering over the town, but the Government says they didn't & refuses to admit they were even there.

    The UFO used death rays and wiped the town out, but the Government refutes the existence of the town or the corpses.

    reply to this | link to this | view in chronology ]

  • icon
    stderric (profile), 31 Jul 2017 @ 10:52am

    The DOJ argues the Pakistan drone strike program has never been officially acknowledged or disclosed. Going from there, it argues it shouldn't have to turn over the information the ACLU is requesting.

    In other words, the DOJ's case is based on something it read on one of Adam Savage's t-shirts.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Jul 2017 @ 11:32am

    Wait a minute ...

    "The DOJ argues the Pakistan drone strike program has never been officially acknowledged."

    Pakistan drone program? Well, if the DOJ says we have one, we must officially have one. Good job, DOJ!

    reply to this | link to this | view in chronology ]


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