Just days after Donald Trump assumed the powers of the presidency, he convened a group of top intelligence and military officials for dinner at the White House. The group included Secretary of Defense James Mattis and CIA Director Michael Pompeo. Presumably they were not there for the steak.
Instead, they were there to discuss and sign off on an intelligence-gathering raid in al Ghayil, Yemen — the first of its kind under the Trump presidency, though planning for it had commenced under his predecessor. Days later, Navy SEAL Team 6 carried out the raid, but early reports were that the raid went awry. One service member and multiple Yemeni civilians — the exact number remains disputed — were killed.
Still, the White House defended the raid as a success. From the White House podium, then–Press Secretary Sean Spicer explained that “the goal of the raid was intelligence-gathering. And that’s what we received, and that’s what we got. That’s why we can deem it a success.”
But criticism continued, and reports surfaced that prior to the raid, President Trump had exempted the area of Yemen in which the raid took place from rules governing the United States’ use of lethal force outside of war zones. Those rules were put in place by President Obama and were intended — however flawed they were — to limit civilian casualties.
To provide the public with information about the legal and factual bases for the raid, the administration’s justification for circumventing the Obama-era rules, and the outcome of any government investigations into what happened, the ACLU filed a Freedom of Information Act request in March with various government agencies. All but one has agreed to search for records.
That outlier is the CIA, which instead offered a so-called “Glomar response” refusing to confirm or deny the existence or nonexistence of records relating to our request, asserting that to do so would reveal intelligence secrets. (If “Glomar” sounds familiar, that’s because the ACLU has been fighting such responses for many years — most recently, in connection with the U.S drone program.)
This week, we went to court to challenge the agency, filing a motion asking the court to rule that the CIA’s response is unlawful and to order the agency to produce responsive records. Glomar responses can sometimes be appropriate, but only in unusual circumstances and with a particularly strong justification for secrecy. That is because a Glomar response cuts off an agency’s FOIA responsibilities at the threshold, preempting any need for the agency to defend the secrecy of particular, identified, responsive documents.
Here, the CIA doesn’t have one. As the D.C. Circuit explained in a separate case brought by the ACLU to challenge the CIA’s use of Glomarto hide its records about the drone program, merely acknowledging the existence of records would not reveal details about the CIA’s role. And anyway, one of Spicer’s statements about the raid placed the CIA director at the dinner meeting during which the “intelligence gathering” raid was approved. It’s entirely unsurprising that the CIA would be involved somehow in a raid like this, and the agency’s attempt to use Glomar to keep the public in the dark about it is absurd.
As one federal judge wrote in an ACLU Glomar case more than a decade ago, “[t]he danger of Glomar responses is that they encourage an unfortunate tendency of government officials to over-classify information, frequently keeping secret that which the public already knows, or that which is more embarrassing than revelatory of intelligence sources or methods.” That’s exactly what the CIA is trying to do here, and that’s why we’ve gone to court to stop it.