In Yemen, Pakistan and elsewhere the C.I.A. has used drones to kill thousands of people — including several Americans. Officials have aggressively defended the controversial program, telling journalists that it is effective, lawful and closely supervised.
But in court, the Central Intelligence Agency refuses even to acknowledge that the targeted killing program exists. The agency’s argument is based on a 35-year-old judicial doctrine called Glomar, which allows government agencies to respond to requests under the Freedom of Information Act, or FOIA, by refusing to confirm or deny the existence of the records that have been requested.
The doctrine sometimes serves a legitimate purpose, but the C.I.A. has grossly abused it, in cases relating to the targeted killing program and other counterterrorism operations. It is invoking the doctrine not to protect legitimately classified information from disclosure, but to shield controversial decisions from public scrutiny and to spare officials from having to defend their policies in court.
The doctrine owes its name to a ship called the Hughes Glomar Explorer, which the C.I.A. used in the early 1970s to salvage a sunken Soviet submarine. When The Los Angeles Times exposed the effort in 1975, the agency tried to suppress coverage, asking news organizations not to publish follow-up stories. Harriet A. Phillippi, a journalist for Rolling Stone, filed a FOIA request to learn more about the C.I.A.’s effort. The C.I.A. refused to confirm or deny the existence of the records Ms. Phillippi had requested.
The C.I.A.’s response was unusual. Ordinarily, an agency served with a FOIA request is required to produce a list of relevant records. The agency must then release the listed records or cite specific legal justifications for keeping them secret. In the Glomar case, the C.I.A. argued that there were circumstances in which it was impossible for an agency to acknowledge even the existence of relevant records without also revealing some fact that the government had a right to withhold.
There are indeed cases in which merely confirming or denying the existence of certain records would reveal a classified fact, such as whether a particular person is a covert intelligence agent or the current target of lawful surveillance.
Those cases, however, are far less common than the C.I.A.’s increasingly frequent reliance on the Glomar doctrine would suggest. A study by the National Security Archive shows that federal court opinions cited the doctrine three times as often in the decade after 9/11 as in the quarter-century preceding it.
There has been a qualitative shift, too. Most of the cases before 2001, including the 1976 Glomar case, involved relatively narrow intelligence-gathering programs that were plainly within the C.I.A.’s mandate. More recently, the agency has used the Glomar doctrine to shield exceptionally controversial programs, and even unlawful conduct, including the torture and rendition of terrorism suspects.
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