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Drone controversy highlights the importance of government transparency

Government entities – particularly those at the federal level – have been resistant to public-record requests about some of the weightiest drone-related matters.

As drone use has burgeoned, its growth has lacked a critical check.

Unmanned aerial vehicles (colloquially known as “drones”) have become subjects of intense discussion and controversy, sparking debates in Washington hearings and statehouses alike.

Matt Ehling
Matt Ehling

Drone-based weapons platforms have become tools of choice in overseas counterterrorism operations. Their ability to hit targets without exposing military personnel to live-fire risks has led to their widespread adoption in recent years. The PBS newsmagazine “Frontline” has reported that more than 6,000 unmanned aircraft are available for military missions – a tenfold expansion from a decade ago.

Drones have also started to infiltrate into the domestic arena, where law-enforcement agencies have been using lightweight drones to conduct a variety of surveillance operations. Police drones can be equipped with all manner of monitoring equipment – from high-resolution cameras to thermal-imaging devices that can read heat signatures within buildings. In 2015, the Federal Aviation Administration (FAA) is also scheduled to institute a permitting process for civilian drone operations, further integrating drones into domestic airspace and raising additional questions about their deployment.

As drone use has burgeoned, its growth has lacked a critical check. Government entities – particularly those at the federal level – have been resistant to public-record requests about some of the weightiest drone-related matters. Their resistance raises serious questions about the public’s ability to hold its government accountable in its use of this controversial technology.

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FOIA, drones, and secrecy

The Freedom of Information Act (FOIA) is the federal government’s primary open records law, and has facilitated public access to government documents for almost five decades. At its most basic, the FOIA presumes that government information is public unless it falls under one of FOIA’s nine exemptions (such as its exemption for active criminal investigations). Exempt data can be redacted from government documents, but the remaining data is presumed to be public, and can be released upon request.

The FOIA also largely holds the government to a 20-day time frame, during which it must respond to requests for government information, and provide answers as to whether it will release documents in whole or in part. 

Both of these foundational FOIA presumptions have been undercut in recent decades, to the point where agencies routinely delay document production for months or years, and sometimes withhold much more information than they are legally entitled to. When significant public policy matters arise, the FOIA – designed to be the public’s key to unlocking data necessary to evaluate these matters – increasingly stumbles under the weight of agency obstruction. Recognizing this problem, Washington, D.C.-based FOIA attorney Scott Hodes has noted that “one of the central tenets of FOIA – namely for citizens to find out what their government is up to – is in critical condition.”

To make the FOIA work in such circumstances, requesters may need to resort to litigation in order to compel agencies to produce the documents that they seek. Such was the case with the Electronic Frontier Foundation (EFF), a public-policy group that sought documents related to the number of operational drones within the United States. EFF submitted a FOIA request for this information in April of 2011, but had to resort to court action to compel the FAA to produce such basic data after a delay of many months. 

Drones and lethal force

At present, the most controversial drone-related issue has involved the use of a drone to target and kill a U.S. citizen outside of a battlefield environment. That citizen – al-Qaida propagandist Anwar al-Awlaki – was killed by a missile attack in Yemen in 2011. Once publicly disclosed, the Awlaki operation raised immediate questions about the breadth of the Obama administration’s assertions about when, where, and under what circumstances it could target and kill other American citizens. 

The legal justifications for such executive branch actions are frequently generated by the Office of Legal Counsel (OLC), a component of the U.S. Department of Justice (DOJ). After the Awlaki killing became public, the New York Times reported that the OLC had produced a legal opinion on the matter. Several organizations – including the New York Times, the ACLU, and the First Amendment Coalition – filed FOIA requests for the document. My own organization – Public Record Media (PRM) – also sought the Awlaki memo, and requested access to other drone-related legal opinions in order to learn more about the scope of the OLC’s decision making in this area. PRM’s FOIA request asked for legal memos about the delivery of lethal force via drones in two circumstances: against U.S. citizens outside the United States, and against any person within the United States.

We sought the last category of records based on the supposition that counterterrorism and domestic drone missions may intersect in the near future (in the context of border defense, for instance.)

The multiple FOIA requests for the Awlaki memo all dealt with substantive questions about the government’s most invasive and consequential authority – its ability to take human life in the furtherance of its national security mission. The definitions and boundaries of that mission have sparked intense pubic controversy over the last ten years, making independent review of government decisions in this area especially critical.

How, then, has the government responded to public inquiries about the scope of its powers – particularly within the FOIA context? 

Legal memos and government secrecy

Since the advent of the War on Terrorism, tremendous pressure has been applied to the legal infrastructure of government transparency. During the George W. Bush administration, the executive branch pushed hard against the FOIA. Bush-era agencies tried to retroactively re-classify documents, and instituted a generalized resistance to the release of information through public record requests.

The Bush administration also sought to expand the degree to which it could withhold the legal basis for its actions from public scrutiny – effectively closing off access to legal memos, even if they were stripped of operational details. During the Bush years, several legal battles centered on OLC opinions written to describe the scope of purported executive branch powers. The Bush administration refused to “confirm or deny” the existence of many of these memos, and fought FOIA disclosure in court fervently.

In 2009, the incoming Obama administration took steps to reverse this trend, by publicly disclosing the contents of several Bush-era OLC opinions on detention authority, domestic use of the military, and torture. Upon taking office, Obama also signed directives governing how executive agencies would respond to FOIA requests in the future. At least according to the letter of those directives, the Bush-era practice of reflexively withholding documents under FOIA was no more.

The OLC drone memo

Over the past four years, actual agency practice has varied considerably from the mandates set forth in the president’s 2009 orders. The OLC’s response to FOIA requests for the Awlaki memo provides a case study.

The OLC told all FOIA requesters that they could neither “confirm nor deny” the existence of the Awlaki memo. Courts have upheld the use of this so-called “Glomar” response in situations in which acknowledging the existence of a document would reveal a classified fact. However, the government’s prolific use of the Glomar response has led to increasingly absurd results.

After receiving Glomar responses to their FOIA requests, the New York Times, the ACLU, and First Amendment coalition moved on to litigation, hoping to force the release of the Awlaki memo. While the Obama administration fought the release of information in federal court, its top officials publicly discussed many specifics that – presumably – were contained within the Awlaki memo itself. The president and his top advisers disclosed the existence of a U.S. drone program. They confirmed that U.S forces killed Anwar al-Awlaki. John Brennan and Eric Holder even gave speeches at prominent universities that described parts of the legal framework at issue in the OLC memo cases. While battling disclosure in court, the administration released pieces of relevant information at times and places politically advantageous to itself.

This Glomar schism — and the strange duality it represents — was remarked on by federal Judge Colleen McMahon in her ruling on the consolidated New York Times/ACLU suit for the Awlaki memo. While noting the grave public policy matters at issue in the FOIA requests, Judge McMahon nonetheless ruled in favor of the government, and allowed the DOJ to keep the OLC drone memo under wraps. “The Alice-in-Wonderland nature of this pronouncement is not lost on me,” wrote Judge McMahon, “but … I can find no way around the thicket of laws and precedents.”

PRM’s drone lawsuit

PRM had a different result flow from its OLC request. While we received a Glomar response to our request for the Awlaki memo, we also received a more specific reply to our requests for opinions on the delivery of lethal force against citizens overseas, and lethal force against persons inside the United States. Regarding these last two categories, OLC stated that they held documents “responsive to the remaining items” in our request, but denied access to them all. We only pursued access to the last (domestic) category, since there was already ongoing litigation related to the other issues. We challenged OLC’s withholding at the agency level, but received no substantive response after a four-month period. This period provided OLC with an opportunity to make clarifications, or to expand on its withholding justifications, but it did neither. Understanding the government to be withholding documents, PRM (represented by attorney JT Haines) filed suit to gain access.

Once we filed suit, the DOJ reversed course and said that it, in fact, had no memos similar to those that we sought. We held out for additional information, and the DOJ eventually filed a sworn declaration stating that the OLC knew that it had no responsive memos in October of 2011. However, in a Nov. 3, 2011, FOIA response letter, OLC told us that they held “documents responsive to the remaining items” of our request. Since there were no underlying records, we moved to dismiss the case. We then sought fees due to the fact that we went to court based upon DOJ’s representation that there were responsive documents. Chief Magistrate Judge Arthur Boylan recently awarded fees in our case due to the DOJ’s change in position. His order noted:

“Despite the fact that no documents were produced, the Plaintiff and the public at large can still glean important information from this change — namely, the government does not possess any documents related to the lethal use of UAVs within U.S. jurisdiction.”

The order in our case underscores the importance of clarity in agency FOIA responses, and we are hopeful that it will be upheld as proceedings continue. One can also hope that such clarity will be brought to bear on the larger legal fight over the Awlaki memo, which is still continuing in federal court.

Hiding in plain sight

Despite the ongoing courtroom battle over disclosure of the Awlaki memo, the Obama administration recently leaked what has been described as a “summary version” of the memo to ABC News, in advance of John Brennan’s CIA confirmation hearings. The full text of the opinion was also later released to members of congressional intelligence committees who had unsuccessfully attempted to get access to it for months. 

The leaked drone “white paper” goes on at some length about the presumptions underscoring the administration’s use of lethal force against American citizens. Those presumptions are constrained, in some fashion, by the parameters that the administration has set for its own analysis. The white paper describes the use of lethal force against Americans as constitutional if used overseas, against an al-Qaeda leader engaged in operational planning, and when capture is not feasible. 

Within this analysis, there are many areas that could lead to problematic expansions of executive authority. The white paper describes “non-judicial” due process, and sets out a broad reading of the concept of “imminence,” for example. This later concept is drawn from 4th Amendment case law governing police use of force in “shoot-or-be-shot” situations. However, the white paper stretches this concept to cover an arguably non-imminent situation, decoupling it from prior legal parameters.

The only way to know for sure how sound (or potentially problematic) the OLC’s analysis is, is to see the Awlaki memo itself, even if it is stripped of operational details. Such redacted opinions have been released in the past, and the FOIA provides sufficient mechanisms to do so.

Drones are just the first controversy

FOIA scrutiny of government conduct is increasingly important as the government’s powers and capabilities increase. Remotely piloted drones are merely the first step toward more ambitious and unconventional weapons systems that will raise serious policy (as well as moral) questions for our society. The Defense Advanced Research Projects Agency (DARPA) is well down the road toward the development of so-called autonomous weapons systems – weapons that make movement, targeting, and “kill” decisions on their own, independent of human operators. Will the government attempt to prevent the public from understanding the future use of machines that raise such fundamental and weighty questions?

The existence of our democratic republic is premised upon the consent of an informed public. In order to preserve that balance, the public needs to understand the legal basis for actions that the government undertakes in its name — particularly when the stakes are so high.

Matt Ehling is a St. Paul-based writer and television producer. He is the president of Public Record Media (PRM), a media organization that seeks out and publishes government documents.


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