Court Rejects CIA's Alice-in-Wonderland Defense of Drone Secrecy

FILE - In this Jan. 31, 2010 file photo an unmanned U.S. Predator drone flies over Kandahar Air Field, southern Afghanistan,
FILE - In this Jan. 31, 2010 file photo an unmanned U.S. Predator drone flies over Kandahar Air Field, southern Afghanistan, on a moon-lit night. White House attempts to lift the cloak of secrecy over its use of armed drones have only raised more questions about the counterterrorism program, particularly President Barack Obama's legal authority to kill American citizens. (AP Photo/Kirsty Wigglesworth, File)

A federal appeals court rebuffed the Obama administration's drone policy on Friday, ruling that the CIA stretched its considerable secrecy powers "too far."

The stinging decision may be the biggest news in the war on terror that you've never heard about.

The Washington Court of Appeals is second only to the Supreme Court in prestige and authority over how the federal government operates. It is often deferential to national security arguments, and on drones, it was hearing a case Obama had won in lower court. Yet, a bipartisan panel unanimously ruled against the administration -- partly because all the public debate over drones served to undermine the administration's bizarre defense of aggressive secrecy.

There is no easy way to describe the CIA's argument in the case without making it sound bad.

The intelligence agency literally told the court that it could not respond to a request for drone documents because the program may not exist. Even to discuss the request, without releasing documents, would compromise the (potential) program's secrecy.

That kind of defense can work for genuine secrets. It makes no sense, however, for a program that's been discussed everywhere from congressional hearings to the president's own Google Hangout. In fact, the court cited that Hangout to note that Obama "himself publicly acknowledged that the United States uses drone strikes."

The White House wanted it both ways -- pretend drones are a secret to duck court oversight, then tout them as a tough security tactic in the public debate. The court basically told Obama's lawyers to take a hike on that argument. In judicial-speak, that translates to this:

"The CIA [proposed] a fiction of deniability that no reasonable person would regard as plausible."

Implausible fiction is a very diplomatic smackdown.

The rebuke is hard to ignore, not only as a matter of law -- the administration must now discard its "fiction," and provide a measured secrecy defense back in the lower court -- but also in the public debate over the secretive kill list.

It is not the only crack in the administration's policy, either. The White House had lost a major ally in this fight two days before this ruling...

Ari Melber is an attorney and opinion contributor to Reuters, where this article was first published.

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