MANHATTAN (CN) – Two years ago, the U.S. government won the right to keep information about its predator-drone program classified. It went to the Second Circuit on Tuesday to keep a portion of the court’s secret ruling redacted.
The American Civil Liberties Union believes the still-censored passage of the ruling confirms the existence of a targeted-killing program in Pakistan, a widely assumed fact that former Secretary of State John Kerry even acknowledged while in office.
“I think the program will end as we have eliminated most of the threat and continue to eliminate it,” Kerry said in a 2013 interview by Pakistani television.
At Tuesday’s hearing, Assistant U.S. Attorney Sarah Normand refused to confirm or deny that the passage of the ruling in dispute relates to this interview. She urged a three-judge panel to remove any reference to the language that the public cannot see.
“It wouldn’t be obliterated from a sealed document, normally,” U.S. Circuit Judge Jon Newman noted. “Are you asking for that?”
“Yes, your honor,” Normand replied.
Newman noted that this is an uncommon demand for secrecy.
“If we reverse a judgment, we don’t tell the judge burn it or obliterate it,” Newman said. “We say ‘reverse.’”
Backing off that position, Normand said that the government does not ask to “purge” that information but rather to keep it under seal.
Since 2004, the still-active predator-drone program has killed more than an estimated 400 people, but the U.S. government’s quest to keep it quiet continues apace.
Normand wants to vacate U.S. District Judge Colleen McMahon’s finding that the passage in question contains an “official acknowledgement.”
Abounding with substitutions and euphemisms, the three-judge panel tiptoed around that passage for more than an hour.
“Can we say it’s an interview?” U.S. Circuit Judge Rosemary Pooler asked.
Normand replied in the negative.
“X is officially acknowledged,” Newman said. “You want that kept off the public record?”
“We certainly do,” Normand said.
The ACLU’s attorney Hina Shamsi cut through what she described as the case’s “extraordinary” and “unnecessary” secrecy.
“Secretary Kerry acknowledged that this country has a targeted killing program in Pakistan which includes the use of drones,” she said.
“You’re saying it was public already,” Judge Pooler told her. “We can’t make it private.”
In a 45-page brief, Normand insisted that the disclosure of the passage presumed to confirm the program in Pakistan would “cause substantial harm to the national security of the United States.”
“The district court’s erroneous and inappropriate ruling should be vacated, and the district court should be directed to remove from its decision the still-classified information,” the government’s memo states, with the remainder of the sentence redacted.
She emphasized again in court that the acknowledgement “could be harmful to U.S. interests.”
The ACLU’s reply letter argues the government cannot ask an appellate court to rewrite an opinion in which it prevailed.
“[A] winner cannot appeal a judgment merely because there are passages in the court’s opinion that displease him — that may indeed come back to haunt him in a future case,” the group’s attorney Hina Shamsi wrote in a 9-page letter, quoting the Seventh Circuit’s ruling in Abbs v. Sullivan. “He can appeal only if the judgment gives him less relief than he considers himself entitled to.”
The three-judge panel reserved decision on the matter.