ACLU Opposition to CIA Motion to Remand in DC Circuit FOIA Case

From the Blog of the Legal Times, we learn that the ACLU has filed its opposition to the CIA's motion to remand, in the Freedom of Information Act ("FOIA") appeal now awaiting oral argument before the D.C. Circuit.  In seeking remand, the CIA had noted its acknowledgement, in separate FOIA litigation before the Southern District of New York ("SDNY"), of records potentially responsive to a similar but separate FOIA request for documents pertaining to the use of drones and the administration's targeted killing program.  In particular, the CIA said it had found in its files copies of two widely disseminated speeches on targeted killing, by the Attorney General and the White House's counterterrorism adviser, respectively.    That's no basis for a remand in the D.C. Circuit case, according to the ACLU's recent filing:  

3. On June 20, 2012, the government moved for summary judgment in the two S.D.N.Y. cases, which concern FOIA requests for (among other things) records relating to the CIA’s use of drones to carry out targeted killings. In its June 20 filing, the agency acknowledged that it possessed two records responsive to those FOIA requests, namely, copies of recent, widely-publicized speeches made by Attorney General Eric Holder and White House counterterrorism adviser John Brennan. Memorandum of Law in Support of Defendants’ Motion for Summary Judgment at 8, Am. Civil Liberties Union v. Dep’t of Justice, No. 12 Civ. 794 (S.D.N.Y. June 20, 2012) (“[I]t does not harm national security to reveal thatcopies of the Attorney General’s and Mr. Brennan’s speeches exist in the CIA’s files.”). As to any other responsive records, however, the CIA stated that it “cannot further describe or even enumerate on the public record the number, types, dates, or other descriptive information about these responsive records because to do so would reveal classified information about the nature and extent of the CIA’s interest in” the targeted killing of U.S. citizens. Declaration of John Bennett at ¶ 28, Am. Civil Liberties Union, No. 12 Civ. 794. The CIA termed this a “no number, no list” response. Id.

4. Before June 20, the CIA’s position was that it had not officially acknowledged the agency’s use of drones to carry out targeted killings. Its position now is exactly the same, and the CIA’s June 20 filing in the S.D.N.Y. cases does not change the factual or legal context of this case. Cf. Maydak v. U.S. Dep’t of Justice, 218 F.3d 760, 768 (D.C. Cir. 2000) (finding remand inappropriate where “there ha[d] been no substantial change in the factual or legal context of th[e] case”). The speeches that the CIA apparently has in its files were already publicly available, and had already been cited to this Court. See Gov’t Br. 40 (citing speech of John Brennan); Pl. Reply Br. 7 n.5 (same). See also Br. of Amici Curiae 31 & n.33 (citing speeches by Attorney General Holder, John Brennan, and State Department Legal Advisor Harold Koh). The CIA’s acknowledgment that it possesses copies of the speeches in its files has as much relevance to this case as if it acknowledged that it has copies of the newspaper articles cited in Plaintiffs’ briefs (as we assume it does). The acknowledgment has no bearing on this appeal because the CIA continues to maintain its Glomar response with respect to any other records. The CIA’s position in this case has not changed in any material respect.

5. To the extent the CIA suggests that the legal landscape has changed because it is now abandoning its Glomar invocation in favor of a “no number, no list” response to Plaintiffs’ FOIA request, the CIA elevates form over substance. In Bassiouni v. CIA, 392 F.3d 244 (7th Cir. 2004), the only Court of Appeals decision to have addressed the “no number, no list” response, Judge Easterbrook, joined by Judges Posner and Sykes, explained that the “no number, no list” response is “legally identical” to the Glomar response: “the Glomar response and the no number, no list response are functionally identical and . . . the verbal distinction should be eliminated, lest it confuse or mislead requesters and judges into thinking that something depends on the turn of phrase.” Id. at 247. Thus, the CIA may have relabeled its argument here, but the argument is the same, and accordingly remand is unnecessary.