Marks v. Central Intelligence Agency

¶6LEVENTHAL, Circuit Judge:

¶7This appeal challenges the district court’s judgment dismissing an action under the Freedom of Information Act (FOIA) challenging the withholding of certain documents requested from the Central Intelligence Agency (CIA). Marks v. CIA, 426 F.Supp. 708 (D.D.C.1976). Plaintiff, John D. Marks, was employed by the Department of State between 1966 and 1970, at which time he received a top-secret State Department security clearance and a top-secret liaison clearance from the CIA. The CIA also granted Marks “certain special compartmented security clearances which are utilized for information which is so sensitive that Top Secret classification is insufficient for its protection.”1 When Marks resigned from the State Department, he pledged in writing not to reveal classified information. The CIA’s Office of Security undertook a national security intelligence investigation of Marks in 1973 “when it learned that he planned to publish a substantial quantity of classified information and when it was reported by sources that he was contacting present and former government employees in sensitive positions in an attempt to secure specific classified information from them. ”2

¶8Plaintiff sought from the CIA “all files, dossiers, communications, computer printouts and other documents” that the .CIA then, or in the past, maintained concerning him. Some 41 documents were identified as responsive to plaintiff’s FOIA request, but by the time of judgment the dispute focused on 14 documents.3 Defendants claimed that nine documents were exempt under Exemptions 1 and 3 of the FOIA, and that five documents were exempt under Exemptions 3 and 7.4 The district court denied plaintiff’s motion for in camera inspection, and granted a summary judgment upholding all the government’s claims. Marks v. CIA, 426 F.Supp. 708 (D.D.C.1976).

¶9I.

¶10“On this appeal, plaintiff only challenges the district court’s decision with respect to documents withheld under exemption 7.” *999Appellant’s Brief p. 5. Those five documents were also withheld under Exemption 3. Plaintiff-appellant abandons the contention made in the district court that Exemption 3 is wholly inapplicable as a matter of law. He submits only that a remand is necessary to determine whether there are segregable portions that do not fall within Exemption 3. Id.

¶11While the case was pending on appeal the CIA released Document 10.5 The material portion of the CIA affidavit describing the remaining four documents and its basis for withholding appear in the footnote.6

¶12*1000It is apparent on inspection that a substantial claim has been made that disclosure would reveal the identity of confidential sources of information. The district court ruled that under Exemption 3, which applies to matters “specifically exempted from disclosure by statute,” section 102(d)(3) of the National Security Act of 1947,7 is a qualifying statute. It supported that ruling with authority. That ruling is not contested.

¶13Plaintiff claims that the district court’s Exemption 3 ruling may not suffice to support withholding of the entire documents). This presents the segregability issue, which was not addressed by the district court. Apparently the district court was concentrating on the broader contention that it considered to be the plaintiff’s primary argument.

¶14We remand to the district court to determine whether the four documents involved are entirely exempt under Exemption 3, in which event there is no need to determine any other legal issue, or whether there are fairly segregable portions, in which event other issues may remain if the government continues to resist disclosure.

¶15In conducting the remand proceeding the district court will proceed in accordance with the principles of de novo review outlined in Ray v. Turner, 190 U.S.App.D.C. -, 587 F.2d 1187 (1978), decided this day.

¶16II.

¶17In view of the possibility that there will be no need to consider the legal issues under Exemption 7, we do not address them. One could say with equal logic: (1) explore Exemption 3, in which case it may not be necessary to consider Exemption 7; or (2) explore Exemption 7, in which case it may not be necessary to consider Exemption 3.

¶18The matter calls for judgment in judicial administration. The court is of the view that the legal issues involved in Exemption 7 are of some delicacy and perhaps difficulty. The sound administration of justice is enhanced by addressing those issues only in the context of a record where they must be faced and hence fuller perspective is likely.

¶19What plaintiff Marks craves is a broad ruling that the CIA’s national security investigation of him was in violation of law.

¶20*1001The issue turns on the scope of the provision of the National Security Act of 1947 that provides: “the Agency shall have no police, subpena, law-enforcement powers, or internal-security functions.” 50 U.S.C. § 403(d)(3). In Weissman v. CIA, 184 U.S.App.D.C. 117, 565 F.2d 692 (1977), the court ruled that Exemption 7 did not protect the records generated by an investigation conducted by the CIA to determine whether plaintiff “was a safe candidate for recruitment by the Agency.” 184 U.S.App.D.C. at 120, 565 F.2d at 695. The court reviewed the legislative history, Congress’s realistic fear of a secret police, and its desire to protect America’s security without “making the mistake of creating an American ‘Gestapo.’ ” Id.The court concluded that § 403(d)(3) “was intended, at the very least, to prohibit the CIA from conducting secret investigations of United States citizens, in this country, who have no connection with the Agency.” Id.The court further stated:

Whatever may be the power to check on its own personnel, we are obliged to agree with the Church Committee when it commented on § 403(d)(3):

Given the prohibition against internal security functions, it is unlikely that the provision was meant to include investigations of private American nationals who had no contact with the CIA, on the grounds that eventually their activities might threaten the Agency.

¶21184 U.S.App.D.C. at 121, 565 F.2d at 696.

¶22Weissman recognized that a distinct issue would be presented in the case of a person who did have a “connection” or “contact” with the CIA. While the language of the 1947 Act excludes from the CIA’s mandate “law enforcement powers, or internal-security functions,” Weissman does not resolve the issue whether Congress intended to foreclose all CIA authority to investigate its current employees, and beyond that, former employees or persons such as State Department employees with top-secret liaison clearance giving them access to the inner recesses and confidential files of the CIA.

¶23We are of course aware of the 1976 report of the Church Committee8 to which the Weissman opinion referred. In general, that Committee considered its approach to the problem of Central Intelligence Agency activities to be “similar to Executive Order 11905”9 but with some further restrictions on CIA activity.10 The restrictions are reflected in its Recommendation 8, which provides that the CIA should not collect information within the United States concerning Americans, subject to exceptions such as information concerning CIA employees, contractors, applicants for employment or contracting; individuals or organizations providing, or offering, or being considered by CIA as potential sources of, assistance to the CIA.11

¶24*1002Of some interest is the Report’s Recommendation 7 to limit physical surveillance and confidential inquiries to specified situations. The Report explains:

The Committee would permit the CIA to conduct physical surveillance of persons on the premises of its own installations and facilities. Outside of its premises, the Committee would permit the CIA to conduct limited physical surveillance and confidential inquiries of its own employees as part of a preliminary security investigation.

Although the Committee generally centralizes such investigations within the FBI, it would be too burdensome to require the Bureau to investigate every allegation that an employee has personal difficulties, which could make him a security risk, or allegations of suspicious behavior suggesting the disclosure of information. Before involving the FBI, the CIA could conduct a preliminary inquiry, which usually consists of nothing more than interviews with the subject’s office colleagues, or his family, neighbors or associates, and perhaps confrontation of the subject himself. In some situations, however, limited physical surveillance might enable the CIA to resolve the allegation or to determine that there was a serious security breach involved.

Unlike the Executive Order, however, the Committee recommendations limit this authority to present CIA employees who are subject to summary dismissal. The only remedy available to the Government for security problems with past employees is criminal prosecution or other legal, action. All security leak investigations for proposed criminal prosecution should be centralized in the FBI. Authorizing the use of any covert technique against contractors and their employees, let alone former employees of CIA contractors, as the Executive Order does, would authorize CIA surveillance of too large a number of Americans. The CIA can withdraw security clearances until satisfied by the contractor that a security risk has been remedied and, in serious cases, any investigations could be handled by the FBI.

¶25S.Rep. No. 94-755, supra note 8, at 299-300.

¶26An overriding question is the extent to which the Church Committee Report proposes a change in existing law or a clarification of existing law. Its views would not be controlling on a court, nor does it speak to the issue directly. It proposed a restriction on the CIA by “transfer to the FBI” of “activities which might involve the CIA in internal security or law enforcement matters.” 12

¶27If the prohibition in the 1947 Act against CIA exercise of “police, subpena, law-enforcement powers, or internal-security functions” is an absolute and broad imperative, it would prohibit the limited kind of physical surveillance and confidential inquiry that the Committee regards as appropriate, e. g., with respect to preliminary security investigations of employees of the CIA or of contractors having comparable access. Presumably such investigations were regarded not as violations of the 1947 law, but as permitted by implications of reasonable exceptions.

¶28This problem is studiously ignored by the dissent, which builds on an assumption that the statute and Weissman unmistakably prescribe an unqualified ban on any “law enforcement” activity, without vouchsafing an explanation of any possible basis for Weissman’s reservation concerning the CIA’s “power to check on its own personnel.” 184 U.S.App.D.C. at 121, 565 F.2d at 696 (footnote 8 and accompanying text).

¶29If the prohibition of CIA confidential inquiry concerning past employees is based on the premise that all security leak investigations for proposed criminal prosecution should be centralized in the FBI, the question arises as to investigation not for criminal prosecution but to avoid compromise of the CIA’s claim of right to review material prior to publication. Compare United States v. Marchetti, 466 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063, 93 S.Ct. 553, 34 *1003L.Ed.2d 516 (1972). More important is the problem of investigation of possible contact between former and present CIA employees (or other government employees given CIA top-secret liaison status) for the purpose of forestalling future breaches by those still having access to confidential information.

¶30On January 24, 1978, President Carter issued Executive Order 12036, as a clarifying order building on the experience under President Ford’s E.O. 11905. As to the issue of former employees, it apparently widens the role assigned by the President to the CIA.13 Of course, an executive order cannot supersede a statute. What does emerge, however is that the interpretation of the 1947 law is a legal issue that relates to an area of tension.

¶31It may be that in any case where the- CIA might have a claim under Exemption 7(D), it can handle the situation satisfactorily by a claim under Exemption 3 that the production of investigatory records would “disclose the identity of a confidential source.”14

¶32We have noted Attorney General Bell’s policy of defending FOIA suits “only when disclosure is demonstrably harmful,” even when exemptions are technically available. See footnote 5 supra.

¶33Some tension is inevitable when a court must decide the extent of CIA authority collaterally, in the context of an FOIA action. We think it appropriate to reserve that function for cases where the FOIA requires it. In a particular case where any material confidential under Exemption 3 has been segregated out and the Department of Justice defends the withholding on the ground that the disclosure is “demonstrably harmful,” the court will have a specific context and a concrete record, probably one sealed in part, likely to be helpful in its exploration of the disputed issue of CIA authority.

¶34If the issue were such as to admit of no possible need for further and careful exploration there would be room for uttering decision forthwith, taking into account that the FOIA is one of the dozens of statutes that prescribe expedition. However, it is our view that the issue requires more probing and insight. If the district court concludes on remand that Exemption 3 does not provide a complete exemption, it should attend to a more searching examination of Exemption 7 issues, including (1) an inquiry into the nature of access to CIA confidences that is available to a State Department employee with top-secret liaison and compartmented security clearances, (2) the basis of CIA authority to conduct investigations involving either (a) suspected violations of agreements not to reveal classified information or (b) persons making contact with current CIA employees, with or without the use of former CIA credentials.

¶35The case is remanded for further proceedings not inconsistent with this opinion.

¶36So ordered.

¶52J. SKELLY WRIGHT, Chief Judge,

¶53concurring in part and dissenting in part:1

¶54In this Freedom of Information Act (FOIA) suit appellant John D. Marks, a former State Department employee, seeks from the Central Intelligence Agency (CIA) certain documents containing information about himself. In response to Marks’ original FOIA request the Agency released some material concerning him, but withheld certain portions of its files on Marks claiming *1004Exemptions 1, 3, or 7, depending on the document.2 The District Court sustained the Agency’s action on the basis of the exemptions claimed.3 Marks appeals from the District Court’s conclusions as to five documents withheld pursuant to Exemptions 3 and 7. The Agency has recently released one of these documents.4

¶55Unlike Judge Leventhal, I would hold now, as this court did in Weissman v. CIA, 184 U.S.App.D.C. 117, 119-121, 565 F.2d 692, 694-696 (1977), a case indistinguishable from this case, that Exemption 7 is inapplicable to the remaining four documents because they were not “compiled for law enforcement purposes” in a “lawful national security intelligence investigation,” 5 U.S.C. § 552(b)(7)(D) (1976), in that they were compiled in an unlawful domestic intelligence investigation by the CIA of a United States citizen. 50 U.S.C. § 403(d)(3) (1970).5*1005I agree with Judge Leventhal that the District Court’s consideration of the Agency’s Exemption 3 claim was inadequate. I would remand this case for further proceedings under Exemption 3 consistent with this opinion.

¶56I. BACKGROUND

¶57From 1966 to 1970 appellant Marks was employed by the State Department. During this time he was granted a top secret State Department security clearance and also a top secret liaison clearance from the CIA.6 In 1970 Marks left the State Department and became Executive Assistant to Senator Clifford Case of New Jersey, a member of the Senate Foreign Relations Committee. While serving in this capacity Marks was instrumental in an investigation of the CIA’s covert support of Radio Free Europe. In 1972 he took a leave of absence from Senator Case’s office to work on a book about the CIA with Victor Marchetti, a former CIA employee. After the book was published in 1974 Marks joined the Center for National Security Studies in Washington, D.C., where he is still employed.

¶58In 1973 the CIA became concerned about Marks’ work with Marchetti on the book, and its “Office of Security undertook a national security intelligence investigation” of Marks.7 In March 1975 Marks made a FOIA request of the CIA for “any files, dossiers, computer printouts, or other documents it now has or has ever had on me as an individual citizen, Foreign Service Office, Senate aide, journalist, writer, or Associate of the Center for National Security Studies.”8 The Agency identified 41 such documents and released 12 in their entirety, but withheld six in their entirety and portions of 22 others. One document was referred to the State Department for disposition.

¶59Marks, seeking the materials withheld by the CIA, brought this suit in District Court in October 1975. During the litigation his request was narrowed to 14 documents. The District Court refused to conduct an in camera inspection of the disputed materials and sustained the Agency’s refusal to disclose the documents on the basis of Exemptions 1, 3, or 7. As mentioned above, this appeal focuses on four documents, which the Agency has withheld in reliance on Exemptions 3 and 7. Since the District Court in affirming the Agency’s action dealt more extensively with Exemption 7, that Exemption will be examined first.

¶60II. EXEMPTION 7

¶61The relevant portion of Exemption 7 applies to “investigatory records compiled for law enforcement purposes, but only to the *1006extent that the production of such records would … (D) disclose the identity of a confidential source and, in the case of a record compiled … by an agency conducting a lawful national security intelligence investigation, confidential information- furnished only by the confidential source …5 U.S.C. § 552(b)(7)(D) (1976). The CIA contends that the four documents sought in this appeal are covered by this exemption because they were products of a lawful national security investigation and because releasing any portion of them would reveal the identity of confidential sources and information obtained solely from confidential sources.9 Appellant argu*1007es that Exemption 7 does not apply to these documents because they were not compiled for law enforcement purposes in a lawful national security investigation. The District Court rejected appellant’s position, holding that the CIA’s investigation of Marks was a “lawful national security intelligence investigation” under Exemption 7(D).

¶62The basic issue governing the application of Exemption 7 in this case is thus the scope of the CIA’s legal authority to investigate persons in Marks’ situation. This issue has two aspects: first, in accordance with the general prescription of Exemption 7, whether the documents were “compiled for law enforcement purposes”; and, second, in accordance with the language of subsection (D), whether the documents were compiled in a “lawful national security investigation.” These two aspects of the issue in fact collapse into a single determination. That is to say, in order for the CIA to have fulfilled the requirement that the documents be “compiled for law enforcement purposes,” the Agency must have been engaged in a “lawful national security investigation,” for only in such an investigation would the documents in suit have been “compiled for law enforcement purposes.” Hence our inquiry here must focus on the lawfulness of the CIA’s investigation of appellant.

¶63Two months after the District Court’s decision in this case this court considered the CIA’s authority to conduct domestic investigations of American citizens in Weissman v. CIA, 184 U.S.App.D.C. 117, 119-121, 565 F.2d 692, 694-696 (1977), a FOIA case quite similar to the one now before us. The CIA had investigated the plaintiff in Weissman without his knowledge as a potential employee and had refused to disclose certain documents compiled in its investigation, relying in part on Exemption 7.10 The question before this court in Weissman, as in this case, was whether the CIA’s investigation was a “lawful national security intelligence investigation.”

¶64We held in Weissman that the CIA’s investigation was not lawful and that the Agency could therefore not rely on Exemption 7 to refuse the plaintiff’s FOIA request. Our conclusion was based on an analysis of the language and legislative history of the statute creating the CIA. We noted that the “National Security Act of 1947 … specifically provided that the ‘Agency shall have no police, subpena, law-enforcement powers, or internal-security functions.’ 50 U.S.C. § 403(d)(3).” 184 U.S.App.D.C. at 120, 565 F.2d at 695.11 We, also recognized the reason behind this ex*1008press limitation on the CIA’s authority: Congress’ firm resolve to insure that the CIA’s “power that flows from money and stealth” could not be turned loose in domestic investigations of Americans.12 “Congress wisely sought at the outset to make sure that when it released the CIA genie from the lamp, the Agency would be prevented from using its enormous resources and broad delegation of power to place United States citizens living at home under surveillance and scrutiny.” Id.We were not persuaded by the CIA’s argument, also relied on by the Agency and by the District Court in this case, that when, in another provision of Section 403(d)(3), Congress made the Director of Central Intelligence “responsible for protecting intelligence sources and methods from unauthorized disclosure,” it meant to grant the CIA the very same authority it had just specifically denied it.13

¶65*1009The CIA urges us to distinguish Weiss-man on its facts because the target of the CIA’s investigation in Weissman had “no contact” with the Agency, while Marks, although not a CIA employee, did serve as a liaison, between the CIA and the State Department and held a CIA security clearance. Indeed, Judge Leventhal’s opinion, see Opinion of Leventhal, J., 191 U.S.App.D.C. at-, 590 F.2d at 1001-1002, although professing not to address the legal issues under Exemption 7, alludes to this perceived distinction between the present case and Weissman. His opinion in fact travels an additional step by intimating not only that CIA “personnel” may be subject to lawful domestic CIA intelligence investigations— this possibility was left open in Weissman, see Weissman v. CIA, supra, 184 U.S.App.D.C. 121, 565 F.2d at 696 — but also that “former employees [of the CIA] or persons such as a State Department employee with top-secret liaison clearance” may be as well. Opinion of Leventhal, J., 191 U.S.App.D.C. at -, 590 F.2d at 1001.

¶66Judge Leventhal’s formulation is disturbingly open-ended; it seemingly invites CIA investigations of employees of other agencies, so long as they have a CIA clearance somewhere in their backgrounds, even if, as in the present case, the individual is or has been a key congressional aide. See text and note at note 17 infra. This is hardly in keeping with Congress’ expressed determination to keep the CIA out of domestic investigations, a determination that requires the same result both in this case and in Weissman. See 50 U.S.C. § 403(d)(3) (1970); text and notes at notes 11-13 supra. Distinguishing between the investigation here and that in Weissman would create an uncertain line between legitimate and illegitimate national security investigations. Although Weissman to his own knowledge had “no contact” with the CIA, the Agency had conducted a continuing “background” investigation of him as a possible candidate for employment for five years, accumulating a volume of material at least as great as that generated in the Agency’s investigation of Marks.14 Such “background” investigations of prospective employees are among those the CIA has traditionally claimed it is authorized to conduct.15

¶67On the other hand, to hold, as the CIA contends, that the Agency may investigate any person who has ever had “contact” with the Agency would expand the CIA’s authority far beyond the limits intended by Congress.16 At the time he was investigated *1010Marks had not had “contact” with the CIA for at least three years and had been working for a Senator serving on a committee with responsibilities for overseeing activities of the Agency. The potential for abuse in an investigation of someone in Marks’ position is all too obvious and exemplifies the kind of danger Congress resolved to avoid by limiting the CIA’s domestic investigative authority.17 The majority opinion nonetheless pirouettes through this veritable mine field of troubling eventualities without confronting the spectre of CIA investigations of key legislative aides.

¶68The conclusion that Congress has not authorized the CIA to conduct investigations such as the one in this case is reinforced by our observation that Congress has provided ample resources outside the CIA to satisfy any legitimate investigatory needs the Agency may have in circumstances such as those involved in this case. Investigations of American citizens within the United States are the responsibility of the Federal Bureau of Investigation (FBI), as the CIA itself apparently recognized in its earliest interpretation of its authorizing legislation.18 The government has not contended in either this case or Weissman that the resources of the FBI were in any way inadequate to meet the CIA’s investigatory needs, nor would such a finding serve to override the express intent of Congress.

¶69Furthermore, a decision that the documents in suit were not “compiled for law enforcement purposes” would not result in disclosure of any information that could harm the legitimate functioning of the Agency or endanger national security. The Agency need not rely on Exemption 7 to protect such sensitive matters; other exemptions are quite adequate. Any matter whose release “could reasonably be expected to cause damage to the national security” can be classified pursuant to Executive order and withheld under Exemption 1. The CIA has apparently not found it appropriate to classify the four documents involved in this appeal, so Exemption 1 is not available in this case.

¶70III. EXEMPTION 3

¶71The CIA also urges this court to affirm nondisclosure on the basis of Exemption 3 alone and to avoid reaching the Exemption 7 issue. As the majority opinion indicates, however, we are unable to follow this course, because the District Court’s consideration of the Agency’s Exemption 3 claim does not reflect the quality of de novo review required by the statute, see Ray v. Turner, 190 U.S.App.D.C. -, -, 587 F.2d 1187, 1196 id.,190 U.S.App.D.C. at-, *1011587 F.2d at 1219-1221 (Wright, C. J., concurring), and does not indicate whether all the information withheld by the CIA, with the approval of the District Court, under Exemptions 3 and 7 could be withheld under Exemption 3 alone, see Weissman v. CIA, supra, 184 U.S.App.D.C. at 123, 565 F.2d at 698.19 Moreover, the District Court failed to establish whether any portions of the documents are segregable and therefore subject to disclosure. On remand, as the majority opinion instructs, the District Court must undertake this inquiry.

¶72The District Court rejected appellant’s motion for in camera inspection of the withheld documents, and its opinion on Exemption 3 dealt only with the legal issue whether Section 403(d)(3) of the National Security Act qualified as a statute specifically exempting materials from disclosure under the pre-amendment version of Exemption 3.20 Although we have recently held that this statute still qualifies under Exemption 3 as amended, Ray v. Turner, supra,190 U.S.App.D.C. at -, 587 F.2d at 1196, the District Court’s inquiry cannot end with this conclusion. As I pointed out in Ray, the District Court must also determine the conditions for exemption established by the exempting statute and decide whether the particular documents requested satisfy these conditions. Id.,190 U.S.App.D.C. at -, 587 F.2d at 1219-1221 (Wright, C. J., concurring). This determination may well require the in camera inspection the District Court declined to undertake in this case.21 Since the District Court’s opinion does not reflect an adequate analysis of the factual issues involved, its consideration on remand should follow the procedures for de novo review outlined in Ray v. Turner. Id.,190 U.S.App.D.C. at -, 587 F.2d at 1219-1221 (Wright, C. J., concurring).