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D.C. Circuit to Hear Dispute Over Drones and Targeted Killings in September

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by Justin Shubow
Posted June 15, 2012, 9:07 AM

BLT: The Blog of Legal Times reports:

A federal appeals court in Washington has scheduled a hearing in a dispute between the American Civil Liberties Union and the Central Intelligence Agency over the government's use of drones in targeted killings.

The U.S. Court of Appeals for the D.C. Circuit set a Sept. 20 argument date in the closely watched public records dispute. The ACLU sued in Washington's federal trial court in 2010 to press for access to any government records about the use of drones.

The CIA, however, has refused to confirm or deny the existence of a drone program, despite statements from President Barack Obama and press reports, citing senior government officials, about targeted killing. The ACLU on Wednesday, citing "immense public interest," asked the appeals court (PDF) to expedite its review of the dispute.

The government "cannot lawfully release selected information about the CIA's drone program to the media, both on the record and off, while insisting to the courts that the release of any information about the program would jeopardize national security," ACLU deputy legal director Jameel Jaffer said in court papers.

Sen. John McCain (R-Ariz.) has accused the White House of selectively leaking classified information to reporters to "enhance President Barack Obama's image as a tough guy for the elections."

Obama recently told reporters that "the notion that my White House would purposefully release classified national security information is offensive."

On June 8, Attorney General Eric Holder Jr. assigned two U.S. attorneys-Ronald Machen Jr. and Rod Rosenstein of Maryland-to lead an investigation into the possible unauthorized disclosure of classified information.

Jaffer said in the court papers yesterday that "the CIA's refusal to release responsive records, or even to confirm or deny the existence of the drone program, inhibits an ongoing and time-sensitive public debate about this subject."

This month, the ACLU said "allowing the CIA to deny the existence of the drone program while it carries on a propagandistic campaign of officially sanctioned leaks would make a mockery of the classification system."

Representing the CIA, DOJ lawyer Catherine Hancock said in a brief filed May 21 that the CIA has never officially acknowledged whether the agency has any involvement or intelligence interest in drone strikes.

Hancock urged the appeals court to reject the ACLU's attempt "to cobble together an official CIA acknowledgment by combining together the substance of various news reports, unofficial statements and imprecise statements by former CIA Director (Leon) Panetta and President Obama."

The guiding principle in the dispute, Hancock said, is that "even if there is speculation about a fact, unless an agency officially confirms that fact, the public does not know whether it is so."

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