Tuesday, July 10, 2018

Unusual national security drone ruling from the Second Circuit

The ACLU has been suing the federal government in an effort to obtain documents relating to the drone strikes that are taking place in your name around the world, at least one of which has killed an American citizen. Naturally, the government has resisted these efforts to release documents like this, so the case has been the Court of Appeals on several occasions. This case is unusual, however, because the government wants the Second Circuit to remove certain facts about the case from the public record.

The case is ACLU v. Department of Defense, issued on July 5. Here is how the Court of Appeals summarizes the issues this time around: "The Defendants‐Appellants seek to vacate a ruling that a certain fact has been officially acknowledged and to leave redacted from the District Court’s public opinion the fact and related sentences." What happened was the district court, in resolving this dispute, identified certain facts in her decision that the government was not disputing.

When the district court resolved this case, it "provided a proposed opinion to the Government for classification review ex parte and filed that opinion under seal." Hey, national security, right? The government responded to the district court's proposed ruling by claiming it did not concede the truth of a particular fact relating to the case. We don't know what that fact is, by the way; the Second Circuit keeps that under wraps. This whole thing is quite unusual, and the Court of Appeals says it may be unprecedented. The Court rules in the government's favor.

First, the Court says, "it is reasonably debatable whether the official acknowledgement ruling is correct," and "the affidavit of a senior United States official, submitted ex parte and under seal, provides a substantial basis for concluding that public disclosure of both the fact at issue and a ruling that the fact has been officially acknowledged would harm important security interests of the United States." In addition, "a transcript of an interview with former Secretary of State John F. Kerry, which the ACLU interprets to reveal what it speculates is the fact at issue, is available to the public. That transcript is included in the public version of the joint appendix and in the Government’s unredacted reply brief." So the public has some opportunity to make its own interpretation of the interview transcript. "On balance, vacating and redacting the District Court’s official acknowledgement ruling is of minimal significance compared to the risk of injury to important security interests of the United States in the event that the ruling is upheld and made public."

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