John D. Marks v. Central Intelligence Agency , 590 F.2d 997 ( 1978 )

LEVENTHAL, Circuit Judge:

This 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

Plaintiff 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).

I.

“On this appeal, plaintiff only challenges the district court’s decision with respect to documents withheld under exemption 7.” Appellant’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.

While 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

It 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.

Plaintiff 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.

We 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.

In 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.

II.

In 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.

The 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.

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

The 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.

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

Weissman 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.

We 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

Of 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.

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

An 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

If 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.

This 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).

If 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 L.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.

On 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.

It 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

We 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.

Some 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.

If 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.

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

So ordered.

1 . Affidavit of Robert W. Gambino in support of defendant’s (CIA’s) motion for summary judgment.

2 .. Marks v. CIA, 426 F.Supp. 708, 709 (D.D.C.1976).

3 . At the administrative level, the CIA released 12 documents in their entirety; 22 with deletions. Six documents were withheld entirely. Certain documents were referred to the State Department for further consideration.

4 . For the test of Exemptions 3 and 7, see 5 U.S.C. § 552(b), which provides in pertinent part:

This section does not apply to matters that are—

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(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;

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(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel;

5 . Appellant’s reply brief filed September 30, 1977 stated (p. 11) that remand was appropriate in view of recent Justice Department policy directives. Attached was a letter of May 5, 1977 from the Attorney General to heads of Federal departments and agencies that stated, inter alia,

The government should not withhold documents unless it is important to the public interest to do so, even if there is some arguable legal basis for the withholding. In order to implement this view, the Justice Department will defend Freedom of Information Act suits only when disclosure is demonstrably harmful, even if the documents technically fall within the exemptions in the Act.

* * * * * *

In addition to setting these guidelines, I have requested Barbara Allen Babcock, Assistant Attorney General for the Civil Division, to conduct a review of all pending Freedom of Information Act litigation being handled by the Division. One result of that review may be to determine that litigation against your agency should no longer be continued and that information previously withheld should be released.

Assistant Attorney General Babcock, citing this directive, obtained leave to file with the court a CIA letter of January 5, 1978, which stated that Document 10 is the only document at issue involving intelligence methods, as contrasted with intelligence sources, and “continued protection is not required. The information previously denied was operationally concerned with another individual and the appearance of plaintiff was occasioned only by his close association with this person.”

6 . The affidavit submitted to the district court, executed April 23, 1976, by Robert W. Gambino, CIA’s director of security, sets forth:

Document Description and Statement

6 Memorandum for Director of Security which transmits a report from a confidential source, who is specifically identified both by name and context, concerning plaintiff and his plan to reveal the identities of foreign, covert CIA employees and to provide this information to a group identified as the Fifth Estate.

This document was denied in its entirety. It consists of information which specifically reveals the

Document Description and Statement

identity of a confidential source and discloses the method by which the confidential source gathered such information and transmitted such to the CIA. The information is of such a nature that disclosure of any part would immediately implicate the source. Names and organizational components of CIA employees are also contained therein.

7 Office of Security memorandum which concerns a report by a former employee on plaintiff’s efforts to recruit him and secure classified information from him.

This document was denied in its entirety. Since the information involved is directly concerned with plaintiff’s specific discussions with a former employee of the CIA, disclosure would enable plaintiff to identify the person, thus compromising the confidential intelligence source. The report also contains substantive information from the former employee’s personnel, medical, and other files which was included in order to evaluate the reliability of the information provided.

14 Office of Security memorandum in which a confidential source, who is identified, reports that plaintiff has provided substantial classified information, including the names and addresses of CIA employees assigned to foreign countries, to the publication Counterspy, who will reveal this information at an upcoming press conference.

This document was denied in its entirety. It consists solely of information derived from a confidential intelligence source. The substance of the information is so specific that its disclosure would permit the plaintiff to ascertain with near certainty the identity of the source. Further, the source also provides information about another prominent citizen and his active monetary support of the publication Counterspy. This fact is not generally known and its revelation might seriously embarrass such person and would undoubtedly be a serious invasion of his personal privacy.

Document Description and Statement

29 Memorandum written by the Assistant to the Director and addressed to the General Counsel. In this memorandum a meeting with a senior public media official is recounted in which the General Counsel was advised of certain writings which Mr. Marks intended to submit for publication to a magazine.

This document was denied in its entirety. It identifies the confidential intelligence source by name and position. Further, the information contained therein, which consists of the subject matter of the discussion, would if released reveal the identity of the source by direct implication.

7 . -50 U.S.C. § 403(d)(3) provides in pertinent part:

(d) Powers and duties.

For the purpose of coordinating the intelligence activities of the several Government departments and agencies in the interest of national security, it shall be the duty of the Agency, under the direction of the National Security Council—

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(3) to correlate and evaluate intelligence relating to the national security, and provide for the appropriate dissemination of such intelligence within the Government using where appropriate existing agencies and facilities: Provided, That the Agency shall have no police, subpena, law-enforcement powers, pr internal-security functions: Provided further, That the departments and other agencies of the Government shall continue to collect, evaluate, correlate, and disseminate departmental intelligence: And Provided Further, That the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure; ....

8 . Intelligence Activities and the Rights of Americans, [Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities], Book II, p. 299, S.Rep.No.94-755, 94th Cong., 2d Sess. (1976).

9 . Id. at 298. E.O. 11905 appears at 3 C.F.R. 90-103 (1977).

10 . S.Rep.No.94-755, supra note 8, at 297-98:

The CIA is responsible for foreign intelligence and counterintelligence. These recommendations minimize the impact of CIA operations on Americans. They do not affect CIA investigations of foreigners outside of the United States. The main thrust is to prohibit past actions revealed as excessive, and to transfer to the FBI other activities which might involve the CIA in internal security or law enforcement matters. Those limited activities which the CIA retains are placed under tighter controls.

The Committee’s recommendations on CIA domestic activities are similar to Executive Order 11905. They go beyond the Executive Order, however, in that they recommend that the main safeguards be made law. And, in addition, the Committee proposed tighter standards to preclude repetition of some past abuses.

11 . Id. at 303. There are also exceptions for visitors to CIA facilities; others in the immediate vicinity of sensitive CIA facilities; and those giving consent.

12 . Supra note 10.

13 . See §§ l-604(a), 1-811 and 2-208(c), Weekly Comp, of Pres. Doc., vol. 14, no. 4, pp. 200, 201, 208 (Jan. 30, 1978).

14 . Curiously, the syntax of Exemption 7 is such that it is only when the government seeks to withhold the “confidential information furnished only by the confidential source” that the text requires that the agency must have been “conducting a lawful national security intelligence investigation.”