Ralph W. McGehee v. William Casey, Director, Cia

fected by the decree. The court can neither

effectively negotiate parties with all the decree, ably

affected nor balance the

political technological trade-offs in-

volved. Even the best-intentioned vigilant prove

most court will institutional-

ly incompetent agency’s to oversee an dis-

cretionary actions. device, then,

As policy

consent decree serves necessary no end. It mischief;

opens the door to unforeseeable

degrades the institutions of representative

democracy augments power spe-

cial interest groups. It does all of this in a

society that hardly needs new devices that representative

emasculate democracy and

strengthen power of special interests.

I see no need and no warrant for counte-

nancing powers this raid on the of the Ex-

ecutive Branch. I respectfully dissent.

Ralph McGEHEE, Appellant W. CASEY, Director,

William CIA.

No. 81-2233.

United States Court of Appeals,

District of Columbia Circuit.

Argued May

Decided Oct. D.C.,

Mark H. Lynch, Washington, with whom W. Susan Shaffer and Thomas R. Kline, D.C., Washington, brief, were on appellants. Daniel, Jr., Justice,

Al J. Atty., Dept, Washington, D.C., with whom J. Paul McGrath, Gen., Asst. Atty. Stanley S. Har- ris, Atty., Robert Kopp E. and Antho- ny Justice, J. Steinmeyer, Attys., Dept, D.C., Washington, brief, appel- were on lee. Chalker, Susan M. Atty., Dept, Jus- tice, D.C., Washington, also entered an ap- pearance for appellee. WALD,

Before Circuit Judge, MaeKIN NON, Judge, Senior Circuit and CELE- BREZZE,* Judge, Senior Circuit States Court of for the Appeals Sixth Cir cuit.

* Sitting by designation pursuant 294(d). to 28 U.S.C. Background the Court Circuit

Opinion by filed I. Judge WALD. joined when he McGe-

Separate by signed secrecy agreement, promising filed Circuit hee Statement Judge WALD. divulge “classified information” employment obtained virtue of his “un- Special filed Cir- Concurrence Senior specifically writing” by less authorized in cuit Judge MacKINNON. to do so.1 to agree- the CIA Pursuant this WALD, Judge: Circuit ment, March on he submitted an Ralph W. Appellant McGehee is a former the CIA for prepublication article to review. Central Intelligence Agency (CIA) officer. The article asserted that CIA had CIA, When he joined signed McGehee to campaign mounted of deceit convince agreement that on its face him bars poor the world the “revolt of the na- from revealing classified with- tives a ruthless oli- against U.S.-backed prior out approval. CIA CIA After El garchy” really in Salvador was “a Sovi- wrote, censored portions of a manuscript he et/Cuban/Bulgarian/Vietnam- sought McGehee a declaratory judgment ese/PLO/Ethiopian/Nicaraguan/Interna- the CIA classification censorship and tional Terrorism challenge scheme violates first amendment and 2 To plausibility States.” lend to his asser- that, even if the scheme were constitution- tion, McGehee’s article “to proceeded re- al, his article no contains classified properly examples view a few of CIA disinfor- material. district rejected The court McGe- Iran, Vietnam, Chile, in programs” mation hee’s found, first amendment challenge, and later, and Four days Indonesia.3 March after giving deference to the judg- CIA’s 24, 1981, the CIA notified McGehee that ment, that the CIA had classified properly of portions his article contained “secret” the censored materials. information, and accordingly per- withheld We affirm. The CIA and publish portions. mission to those censorship protects scheme critical national employs The three classification lev- CIA Furthermore, interests. the classification els. . most The sensitive information —infor- criteria in applied “secret” case —for that, disclosed, if “reasonably mation could specify nature infor- information — mation be to expected exceptionally grave cause subject to with sufficient damage security” national CIA particularity satisfy consti- applicable —the “Top classifies Secret.” Exec. Order No. tutional tests first re- amendment 12,065 1-102, (1979) C.F.R. § straints on former CIA employees. The (current 12,356 version at Exec. No. Order district gave court also properly deference 1.1(a)(1), (1983)).4 3 C.F.R. § the CIA’s and explana- detailed reasoned restricted, sensitive, tion of least but still informa- its classification decisions. We that, disclosed, agree that CIA as tion —information “rea- reasonably classified “secret” portions the censored cause sonably expected of McGehee’s could identifi- article. damage security” able the national —the Secrecy Agreement Ralph 1. j[ W. McGehee Order does Executive not alter definitions (June 24, 1952), reprinted Appendix in “top Joint and “secret” secret” information. (J.A.) at 42. However, order, unlike the former which re- quired damage” an articulation of “identifiable (“CIA 2. Complaint app. Operations A El Sal- in classification, justify a “confidential” vador”), J.A. requires only finding unspeci- new order “damage.” 12,- Compare Order fied Exec. No. Id. at 8-14. 1-104, (1979) with C.F.R. § 4. At the time McGehee submitted his article 1.1(a)(3), No. 3 C.F.R. Exec. Order § governed the by classification decisions were 166,167 (1983). only review here the earli- 12,065, Exec. Order No. 3 C.F.R. 190 express no er view on the Executive Order superseded by which has been since Or- Exec. constitutionality of more recent order. 12,356, der No. 3 C.F.R. 166 The new constitutional, that, Id. if the scheme is even classifies “Confidential.” § portions improperly the CIA at 191. 3 C.F.R. his article. the censored CIA classified affirm, bal- holding that when is We of McGehee’s article “Secret.” “Secret” amendment interests “Top against anced the first the middle level classification between writ- agents’ of former public disclosure and “Confidential”: Secret” classifying scheme of ings, to informa- applied only shall be “Secret” “secret” information is constitu- censoring tion, unauthorized disclosure of which has a (a) tional because could be to cause assuring secrecy substantial damage to the security. serious intelligence opera- the conduct of Id. 3 C.F.R. at 191. The CIA tions, (b) the criteria for what consti- found that McGehee’s identification neither over- information are tutes “secret” countries where the CIA had established broad, the inter- considering governmental bases would likely damage U.S. relations excessively nor protects, est the scheme countries, with those and that his discussion with considering particularity the vague, operation details of a CIA in Indone- guidance offer which the criteria likely intelligence sia would disclose secret censor; (2) reviewing specified whether methods and intelli- help identify secret information could be to gence sources. The CIA therefore conclud- divulged, harm if cause actual serious ed that portions of McGehee’s article courts should accord deference to the CIA’s threatened to cause damage “serious explanation reasoned of its classification de- national security.” cision; case, (3) proper- in this the CIA and The Nation magazine published McGe- ly portions classified the censored McGe- hee’s article on with April hee’s article. portions censored deleted.5 McGehee then court, sought review in the district II. The Constitutional Standard for challenging (1) the constitutionality of the Reviewing Censorship Scheme scheme, CIA’s classification censorship States, Snepp v. United In scheme, the propriety, under that 509 n. 765 n. classifying portions of his article “secret.” curiam), (1980) (per L.Ed.2d 704 the Su The summarily rejected district court could, con preme Court held that the CIA McGehee’s challenge. constitutional In the amendment, sistent with the recover first district court’s view “the question critical is agreement damages secrecy for breach of whether that information has been properly agent promised under which a former subject and thus to censor- [is] submit to the CIA for writings CIA-related a “de novo review After ship.”6 clearance. The found prepublication Court submitted for in camera inspec- [affidavits] “a reasonable secrecy agreement to be tion” parties, judi- and “exercising] means of infor protecting” “secrecy cial deference to the exper- administrative mation important to our national tise” of the the district court found confidentiality and the so appearance that the CIA had “properly classified the essential of our operation effective documents and warranted in cen- [was] [its] Snepp, Id. foreign intelligence service. sorship.” agent published the former CIA-related in court, In this submitting McGehee renews his claim formation without his manu CIA classification and script prepublication review. amendment, therefore, scheme violates the first Snepp, government’s action in McGehee, Paper The C.I.A. and the White Id. at 3. Salvador, Nation, El Apr. at 423. Casey, 6. McGehee v. op. No. mem. (D.D.C. Sept. 1981). [Snepp’s]

did “not whether depend upon classified informa- actually legitimate book contained government has no simply tion .... The Government Moreover, censoring unclassified materials. given should have claim[ed] when the issue derives from to determine opportunity CIA sources, special relation- public agent’s he proposed publish whether the material ship greatly of trust with the compromise would classified information or vitiated.9 Accord wholly diminished if not sources.” Id. 100 S.Ct. at 766. Snepp v. United U.S. at 513 n. contrast, case, In this McGehee ad- (dictum) (“if in 100 S.Ct. at 767 n. 8 fact agreement. hered to his He sub- secrecy public or in the information is unclassified prepublication mitted his manuscript re- domain, neither the nor agen- view, and deleted his article in concerned”). cies would be accordance with the CIA’s orders. At issue case, requires As in McGehee’s constitutionality here is the of the CIA’s all of its enter into a employees secrecy deciding substantive criteria and scheme for agreement employment.10 as a condition thereby censor, how to classify, and writ- This fact our first is critical to amendment ings of former agents. analysis because numerous with, note, begin McGehee’s decisions establish that: secrecy agreement applies only when he State has interests as an employer [T]he seeks publish “classified information” in regulating speech of employees that “has come or shall come to atten [his] that differ from significantly pos- those it tion by virtue of connection with the [his] sesses in with regulation connection Intelligence Agency.”8 Central agree The the speech citizenry general. of the in ment does not extend to unclassified mate problem The arrive at a ... is to balance rials or to public information obtained from between the interests of the [employee], sources. government may The not censor citizen, as a in material, commenting upon such matters “contractually or otherwise.” Marchetti, States v. 1309, public 466 concern and the interest of the F.2d denied, cert. (4th 1313 Cir.), State, 409 U.S. as an employer, promoting Secrecy Agreement, supra 8. analysis note J.A. It makes no difference to our [[[[ used agreement secrecy at 42. The government more whether the seeks to restrict recently by requires agents former CIA speech rights employees by of its individual writings prepubli- to submit all CIA-related cation review. See applicable contract or a broad rule to a class Snepp v. United 444 employees. way, government Either (quoting U.S. at at 764 100 S.Ct. secre- may impose unconstitutional conditions on cy agreement signed 1968). McGehee’s government employment: agreement explicitly require does not him to quarter-century, “For at least a this Court preclear publications, all such but he does not though person has made clear even a preclearance requirement. contest the ‘right’ governmental has no to a valuable demonstrate, ex-agent however, may An government] deny should benefit ... a [the appropriate during prepublication an time person infringes benefit to a a basis that on review, public that such information is in the constitutionally protected his interests —es- domain. The CIA cannot bear the pecially, speech.” his interest in freedom of conducting burden of prove an exhaustive search to Finkel, 507, 514-15, 100 Branti v. 445 U.S. S.Ct. given piece that a of information is not 1287, 1292-93, (1980) (quoting 574 L.Ed.2d published anywhere. 593, 597, Perry Sindermann, v. McGehee his in offered in camera affidavit to 2694, 2697, (1972)). S.Ct. attribute one bit of deleted information to a however, explicit may, An contract affect the previously published source. The affidavits do government remedies available adequately not resolve whether McGehee in- constitutionally breach of valid restriction. during prepublication peri- formed the Court, Snepp 444 U.S. at public willingness od of his or of source his question open the S.Ct. at 768 n. left wheth- make the attribution. need not remand for remedy er a constructive trust would have been determination, however, a factual because appropriate express agreement absent an be- pursue McGehee failed to the issue in his brief Snepp tween and the CIA. to this court. light on per- sheds some additional employees, services efficiency public standard. Under balancing employees. proper through forms Cole, require must not oath loyalty Education, 391 U.S. v. Board of Pickering speech activ- forego “protected employee to 1731, 1734, 20 L.Ed.2d 88 S.Ct. more- unduly vague; - must not be ities” and U.S. (1968); Myers, see Connick over, activities into associational inquiry -, 75 L.Ed.2d in- to avoid confined” “narrowly must be must, then, Pickering). We (1983) (quoting Id. rights. constitutional fringement upon determining balancing test apply a 680, 92 at 1335. ex-agents’ whether the CIA’s us the first amendment. to the case before writings closely violates related More Glines, is Brown discussed the relevant Court (1980). There Court as if it were well set- balancing standard challenge a first amendment upheld against tled: prohibited regulation an Air Force “ case makes clear that Court’s [T]his member ... in uniform ‘any Force] [Air protect substantial the CIA [can] act[ ] soliciting foreign country’ from or ... in a reason- by imposing interests without first ob petition on a signatures employee on activities able restrictions appropriate authorization from taining protected that in other contexts commander,” 349, 100 at 597 id. at the First Amendment. 30-1(9) (1971)), Reg. Air Force (quoting 765 n. 3 at 509 n. 100 S.Ct. at “ Air member of the provided ‘[n]o cases, (1980). A review of relevant how- or any printed or post Force will distribute ever, precise shows that standard for Air Force any ... within written material is not that well settled. balancing of the com permission installation without In United States Civil Service Commis- ...,’” 349-50, 100 id. at mander sion v. National Association of Letter Carri- 35-15(3)(a)(1) Reg. Force (quoting Air ers, 37 L.Ed.2d this scheme (1970)). upheld The Court upheld it “pro clearance because precirculation proscription partisan poli- Hatch Act’s Government a substantial tects] ticking by government employees. In do- free suppression to the unrelated so, ing quoted Pickering the Court the bal- 599, 354,100 namely, at at speech,” id. S.Ct. “ ancing provided test and then the terse discipline demands of ‘overriding ” explanation that: services, (quoting id. military in the duty’ [Congress] balance has ... struck [T]he 94 Levy, Parker v. 417 U.S. S.Ct. by important is sustainable the obviously (1974)). More 2517, 2556, 41 L.Ed.2d 439 sought by interests to be served the .. . over, regulations found Court Hatch Act. reasonably is speech “restrict no more than gov substantial necessary protect 564, 93 th[is] 413 U.S. at at 2890. The Court S.Ct. 355, 100 at ernmental interest.” Id. at S.Ct. lengthy analysis with a concluded statute, construing narrowly to avoid Id. vagueness problems.

overbreadth and two consist- from these cases We discern at 93 at 2892-98. S.Ct. v. themes, in Brown ent best articulated First, Richardson, 676, speech restrictions on Cole v. 405 92 Glines. U.S. S.Ct. sub- 1332, “protect must a government employees 31 L.Ed.2d 593 the culmination unrelated to government of a series of cases review- stantial interest at Id. ing loyalty required government suppression speech.”11 oaths of free Glines, v. opinions society,” at Brown 11. We also detect in the a civilian Court’s Levy, sensitivity 354, v. special (quoting Parker institutional needs of 100 S.Ct. at 599 services, 743, 2555), particular governmental at where such as the 417 U.S. at 94 S.Ct. upon military foreign intelligence preparedness “insist a re- and the services. demands of military thereby spect duty discipline without counter- One who enters the and a becomes a Schlesinger life,” v. (quoting id. specialized society separate part member of in civilian “a from

H43 599; 354, 100 Glines, 444 at 444 Snepp, at see U.S. Brown v. at expression.” S.Ct. U.S. 3, (“substantial Indeed, 354, govern- 509 n. at 765 n. 3 100 S.Ct. at 599. interest”); protect- National Associa “has a interest compelling ment 564, Carriers, secrecy impor- tion of Letter 413 U.S. at information ing ... ” interests”). to our .... (“important security S.Ct. at tant Second, narrowly the restriction must v. United 444 U.S. at 509 added). “restrict no is speech (emphasis drawn to more than at 765 n. 3 Infor- protect necessary govern the substantial as “secret” properly mation classified does Glines, v. ment interest.” Brown such possess importance by virtue 355, 100 600; see potential causing damage National Asso “serious Carriers, security.” ciation of Letter the national U.S. (Hatch at 2897 Act not impermissi Further, for “se- the classification criteria bly overbroad); Richardson, 405 Cole v. cret” information confine the 680, 92 oath U.S. at S.Ct. at 1335 (loyalty resulting censorship to cases in which a narrowly confined). must be is governmental substantial served. mind,

With two we principles sweep these The criteria do not broadly too be- now turn to examine the CIA they impede only scheme cause disclosure when it and censorship of “secret” in- poses probability reasonable of “serious” addition, formation. following harm. as the discus- explains, sion the classification criteria are III. The Constitutional Standard excessively vague. Applied CIA Scheme for term security” “national defined “Secret” Information for classification as “the national purposes The CIA McGe foreign defense and relations of United “secret,” hee’s as dis believing articles defined, inherently States.” the term is So closure “reasonably could be vague. Halperin Kissinger, F.2d cause damage serious to the national securi (D.C.Cir.1979), aff’d equal ty.” Exec. Order No. Court, divided ly C.F.R. hold that (1981); cf. United CIA censorship of “secret” con information Court, States District States tained in former agents’ writings obtained former agents during (1972) (noting the “inherent course employment of CIA does violate of the domestic con vagueness the first amendment. Mitchell, cept”); Zweibon v. 516 F.2d The censorship 653-54 (D.C.Cir.1975) (en banc) of “secret” (the concept “protect[s] governmental in- “affecting vague substantial relations” case, terest suppression however, unrelated to the free In subject abuse). of this Councilman, 757, 1300, 738, macy and the maintenance of an effective na- 1313, (1975)). Similarly, require confidentiality one tional defense both and Curtiss-Wright foreign intelligence secrecy”); who enters United States Ex- service occupies thereby position Corp., “special 304, 320, port a of trust” government, Snepp, by few in (1936) (the reached 81 L.Ed. 255 President “has his 6,100 at 511 & n. S.Ct. at 766 & n. where the of He confidential sources information. has his upon demands of international affairs insist agents diplomatic, of in the form consular and secrecy security measure of “essential to the Secrecy respect other officials. informa- the United States and —in a free sense —the highly gathered by may tion them be neces- world,” id. at 512 n. 7. 100 S.Ct. at 767 produc- sary, premature and the of it disclosure results”); Secrecy The long tive harmful Federalist No. in international relations has (J. 1961) (“So (J. Jay) acknowledged been at 434-36 Cooke ed. to be func- essential to the See, essentially e.g., tioning government. have heretofore often and so we national dispatch secrecy New York Times Co. v. United from want [in suffered negotiations], international the Constitu- 29 L.Ed.2d (Stewart, J., (“it inexcusably concurring) elementary defective if tion would have been objects.”). diplo- paid the successful conduct of international no attention had been to those 12,065 1-301, speci- adds No. C.F.R. governing Executive Exec. Order Order § enumerating to the ficity by definition may of information be con-

types sure, attempt to limit To be for short- sidered classification: of documents has its classification (e) item back comings. particular, refers may Information not be considered itself, of national concept security classification unless concerns: undermining the elimi- thereby attempt (a) military plans, opera- or weapons, (g) roving and item vagueness, grants nate tions; individ- authority specified classification information; (b) foreign government however, uals. did not invoke activities, (e) (g) in this case.13 We therefore (c) intelligence sources or items or methods; today need not whether classifica- consider upon that place great tion decisions reliance (d) foreign foreign relations or activities (e) (g) would be defective due to items or States; vagueness of the Executive asserted scientific, (e) or economic technological, Order.14 relating security; matters to the national “foreign also refers (d) broadly Item (f) United programs States Government foreign activities of relations or the United safeguarding nuclear or fa- materials alone, Standing States.” such a classifica- cilities; or excessively vague. tion standard other (g) categories of which Mitchell, See Zweibon 516 F.2d at 653-55. are related to national and which CIA, however, has articulated narrower require protection against unauthorized guide standards classification decisions disclosure as by determined Presi- (d). See Agency under item Information dent, by a person by the designated Presi- Program Classifying, Handbook: Security ..., dent or an agency Marking head.12 Declassifying, Safeguarding currently 12. The Executive Order in effect uses Statement of Facts See Defendant’s Material longer specific ([ There Is As To Which No Genuine Issue somewhat more list of potentially J.A. at 24. classifiable material. Exec. Or- 12,356 1.3(a), No. der § 3 C.F.R. 168-69 guid- provides Order The Executive further (1983): 1-101, in, (1979) e.g., § ance C.F.R. Information shall be considered for classifica- (“reasonable doubt” about classification level if it tion concerns: to be favor of or resolved nonclassification (1) military plans, weapons, operations; or super- level), at a less restrictive (2) capabilities sys- the vulnerabilities or 12,356 1.1(c), seded Exec. Order No. § tems, installations, projects, plans relating (1983) (reasonable or to be C.F.R. doubt security; by obtaining opinion); resolved a second id. information; (3) foreign government (classification may C.F.R. at 194 § law, (4) intelligence (including special be used “to conceal violations of ineffici- prevent activities error, ency, activities), or administrative intelligence [or] or or meth- sources person, organization to a or ods; embarrassment agency”) (current version at Exec. No. Order (5) foreign relations or activities of 1.6(a), (add- (1983) 3 C.F.R. States; the United ing may that classification not be “to used delay scientific, (6) technological, or economic competition; prevent restrain or to or relating security; matters to the national require information that release of does programs United States Government protection in the interest of national securi- facilities; safeguarding nuclear or materials ty”)); (“Basic 3 C.F.R. at 194 sci- id. § (8) cryptology; clearly entific research information not related (9) source; a confidential or security classified.”) may to the not be national (10) categories other that are 12,356 (current version Exec. Order No. related to the national and that re- 1.6(b), (1983) (no change)); C.F.R. § and quire protection against unauthorized disclo- (defining 3 C.F.R. at 204 “for- id. § by by as sure determined or the President information”) (current eign government ver- agency heads or other who have officials 6.1(d), sion Order No. at Exec. delegated original been classification authori- (1983) (expanding C.F.R. definition)). the former by ty the President. Information, National Security HHB No. material, contain engenders classified less (Nov. 1978). 70-2 9d guidelines chilling of a effect on speech. free f This is pertinent to this case15 are sufficiently pre- course, to say, imprecise stan- cise to withstand a challenge for unconsti- present dards would not still an intolerable vagueness. tutional burden allowing censor unwarranted vetoing material, but, discretion in as we Moreover, one of principal dangers of said, have we do not find the standards for imprecise they standards is that deter may classifying material as “secret” unconstitu- legitimate expression. When an adminis- tionally vague. And we note that trative scheme designed to avoid the de- agent may seek review the CIA’s legitimate however, terrence of speech, classification decision.16 danger is alleviated in part. Thus in Civil Service Commission v. National Association Finally, McGehee argues Carriers, Letter the Supreme re- classification standard for “confidential” in jected a vagueness challenge to the Hatch “information, the unauthorized formation — Act, in part because: disclosure of which reasonably could be ex pected to cause identifiable damage Commission to the a proce- established ha[d] security”

dure by which an invalidated employee in doubt —should because it is “too broad vague about the and validity proposed satisfy of a course of the First Because, conduct Amendment.”17 may seek and as ex obtain advice from below, plained the Commission McGehee lacks standing thereby any remove assert doubt there overbreadth may vagueness be as to chal meaning lenges standard, the law .... “confidential” we need not consider them in this case. 2897-98. Simi- larly, in this Order, case the Executive portions censored of McGehee’s writ- establishing preclearance procedure ings “secret,” were classified not “confiden- determining whether intended publications tial.” attempts Thus he to challenge the See, e.g., Agency Program Information Sec. appli- must be exercised in subordination to the Handbook, supra 9d(l) (“Information that, j| provisions if Constitution.”) (quoting cable disclosed, foreign political, could lead to eco- Curtiss-Wright Export Corp., United States v. nomic, military against or action United 299 U.S. 81 L.Ed. friendly nations.”); States or other 9d(5) jj Comment, id. (1936)); Snepp v. United States: (“Information identify that could or otherwise Secrecy Agreement The CIA and the First support disclose activities abroad in of national Amendment, 81 Colum.L.Rev. 689-90 & n. foreign policy objectives, planned and exe- cuted so that the role of the United States Also, proper in a case the broad terms in the apparent Government is acknowledged or by judicial Executive Order be narrowed publicly; or sup- information that could reveal construction. port activities.”); 9d(7) (“Infor- for such jj id. that, disclosed, mation political could lead to Appellant’s Brief at 13. instability, or economic or to civil disorder or unrest, foreign country jeopardize or could argues 18. McGehee in his brief: lives, liberty, property or of United States The measure of harm which the CIA asserts residing visiting citizens country in or such a or l-9(h) corresponds in its Rule statement endanger could per- United States Government classifying the level for information “confi there.”). sonnel or installations dential.” The CIA’s affiant states that States, 16. See 444 U.S. at 513 censored of McGehee’s article are 8,n. (“Snepp’s “secret,” S.Ct. at 767 8n. contract Notwithstanding .... requires proce- no more affiant, than a clearance the statements of the the assertion subject judicial review.”); dure 9(h) see also New made in defendant’s Rule statement is 1— York Times Co. v. United controlling purpose litigation. for the of this (per 29 L.Ed.2d 822 (D.C.Cir. cu- See Gardels v. 637 F.2d 770 riam) (permitting publication Pentagon 1980). Pa- pers despite government’s they Appellant’s claim that disagree were Brief at 13 n. *. We “top secret”); Haig Agee, two reasons. First, the CIA’s Statement of Material Facts (1981) (President’s plenary power over As To Which There Is No Genuine Issue Pursu- relations, every government power, “like other l-9(h) (l-9(h) Statement) ant to Local Rule Oklahoma, (1976); Broadrick v. it L.Ed.2d may that ground on the Order Executive at at S.Ct. 413 U.S. unconstitutionally applied conceivably be his own. other than others, situations does, case, the Executive Order In this raise properly not litigants may Generally, constructions, touch constitu some under See, Broadrick v. Oklaho e.g., such claims. ob As McGehee speech. tionally protected 2908, 2915,37 601, 610, 93 ma, S.Ct. 413 U.S. include damage” might serves, “identifiable States (1973); United L.Ed.2d 830 may which of harm amount “a minimal Raines, 80 S.Ct. 362 U.S. suppres justify all cases to be sufficient litigant as (1960). When Yet future construction speech.”19 sion of however, challenge, a first amendment serts reasonably could delimit of the order20 exception an make courts sometimes reviewing or a The CIA of the order. scope with overly broad on hear “attacks for “confi [rules] standards might formulate court making the person that the requirement damage require no that information dential” his own conduct that security” attack demonstrate inter national ... “important by a drawn regulated not be at could U.S. v. United [rule] ests. specificity.” narrow requisite 3. Alternative with at 765 n. S.Ct. Pfister, 486, 85 nar Dombrowski v. be scheme the classification ly, 1116, 1121, 14 L.Ed.2d under of what falls much rowed to exclude To materials. of “confidential” rubric however, extend does not exception, This Court, paraphrase “[e]ven amendment chal- automatically to all first con were be standard] [‘confidential’ “be- exception devised the lenges. Courts unconstitutionally respects in some sidered judicial prediction assumption or cause of a en overbroad, we would not invalidate may existence cause very that the [rule]’s remainder tire scheme]. [classification from not before the court to refrain others range a whole ... covers of the [scheme] Broa- speech.” constitutionally protected con ... constitutionally proscribable ... Oklahoma, at drick v. 413 U.S. v. Nation duct.” Civil Service Commission analysis overbreadth Accordingly, at 2916. Carriers, 413 U.S. of Letter al Association deployed limiting when a should be at 2897-98. from its construction could save the rule the classification defects, see, conclude e.g., Dombrowski We also constitutional 1123; whole, not result scheme, as a does Pfister, taken protected deterrence 61 real or substantial Hampshire, Cox v. New clas- secret” “top The “secret” and speech. or when its 85 L.Ed. burdens on constitutional place sifications effect is neither real nor substan- deterrent are agents. We tial, see, The- of former CIA e.g., Young speech v. American Mini the burdens hold atres, Inc., prepared today 49 not particular say facts portions reference to the does not that the rials without CIA ” Rather, at 773. More- .... 637 F.2d article “confidential.” recited therein McGehee’s attempted over, appeal in Gardels CIA states that deleted McGehee’s testimony deposition rely upon introduced to cause article “could statement, thereby denying l-9(h) specific and harm to the after its plaintiff at least identifiable ” adequately respond l-9(h) opportunity to Statement .... CIA (emphasis added). id. at 773-74. at 24-25 This in its counter-statement. J.A. in this case. neither error is consistent with the affiant’s The CIA committed statement explanation the relevant Appellant’s Brief at 15. classified “secret.” Second, CIA, supra, Gardels v. does not this court note that McGehee asks proposition 20. We also stand for the that the assertions analysis engage an order l-9(h) in overbreadth eclipse to that is no made in statements other all longer as the su- Gardels, in effect. Insofar this court consistent statements. from the or- perseding differs 9(h) Executive Order be- found the CIA’s statement defective 1— litigation, it is wise specify der that controls cause it “fail[ed] material limiting to another constructions upon merely defer facts which CIA] [the relie[d] day. incorporate[d] entire affidavits and other mate-

1147 ’ we take speech by agree, although opportuni- on such the “confidential We this placed or wide- sufficiently heavy classification are ty judicial to standard of review clarify to render the spread entire classification a appropriate to case such as this one. substantially and there- scheme overbroad arises in a posture significantly This case invalid on face. 93 fore Cf. id. a CIA request different from release of (same regarding 2898 conclusion an S.Ct. documents under Freedom of Informa- challenge overbreadth to the Hatch Act on case, (FOIA). Act In a FOIA tion indi- grounds prohibition against polit- a to release of compel vidual seeks documents endorsements, applied plain- ical not Here, possession. in the government’s tiff, void). rendered the entire statute contrast, publicly McGehee wishes dis- addition, above, as we noted CIA classi- already possesses, close that he information censorship fication and scheme reduces de- se- and the has ruled that his government terrence, because review al- prepublication forbids disclosure. crecy agreement a agent’s leviates former fear that his dis- seeking This difference between of non-sensitive closure information dis seeking obtain information liability. result Thus the scheme CIA’s already close raises any reduces disfavored effect. obtained chilling McGehee’s constitutional interests in this McGehee standing also lacks held case above the constitutional interests challenge the “confidential” standard for rule, a claimant. As a general FOIA A vagueness. litigant properly cannot chal no first right citizens have amendment a lenge vagueness rule for it clearly when traditionally nonpublic govern access to applies to him. 417 Levy, See Parker v. See, e.g., ment information. Houchins 733, 756, 94 2547, 2562, U.S. 41 L.Ed.2d Inc., 1, 8-9, KQED, 438 98 U.S. (“One (1974) 439 to whose conduct a statute (1978) opin (plurality clearly applies may successfully not chal ion); J., 98 (Stewart, id. at S.Ct. at 2597 it lenge vagueness.”). Co., concurring); Washington Saxbe v. Post Accordingly, we uphold against first 843, 849, 41 U.S. amendment challenge the CIA classification (1974); Procunier, Pell v. L.Ed.2d 514 scheme for “secret” infor- 2800, 2808-09, mation. We decline rule whether the (1974). litigant A re seeking L.Ed.2d “confidential” passes standard constitution- lease of information under al muster because standing McGehee lacks therefore, FOIA, relies upon statutory to mount such a turn challenge. We now ex by statutory entitlement —as narrowed whether the question properly CIA clas- ceptions upon his constitutional —and sified as McGehee’s article “se- expression. right to free cret.” case, however, In this McGehee IV. Standard Keview Judicial publish possesses, wishes to information he Censorship of Individual CIA Decisions and the wishes to silence him. Al The district court found the CIA though neither the CIA’s administrative de “properly classified the any docu- court order in case termination nor [relevant] ments and warranted in censor- prior their constitutes a restraint in the tradition [was] ship” portions of McGehee’s article.21 al McGehee or other upon any party,22 sense Casey, supra 21. McGehee v. decisions). note at 3. If cation clearance the CIA did publication, seek action to restrain ruling today merely upholds 22. Our id.; would bear much heavier burden. See secrecy agreement and determines that the CIA States, New York Times Co. v. United properly classified the deleted items McGe- 2140, 2141, sought article. hee’s The CIA has an in- Books, curiam); Bantam Inc. v. (per junction against publication censored Sullivan, items. U.S. at Court has L.Ed.2d 584 (distinguishing S.Ct. at 767 n. 8 purpose long that “the chief of [the observed injunctive proceedings prepubli- from review re on many review This circuit has occasions prepublication entire scheme of re the denial of a FOIA preventing for of viewed whether designed purpose the exemp fell within the FOIA quest properly of classified information. publication for documents. 5 U.S.C. has a first tion classified strong McGehee therefore cases, estab ensuring In these we have 552(b)(1). in that CIA amendment § for its classifi prop explanations of his article results from a lished that CIA “concluso the censored cation should neither portions. er classification of decisions standards, Colby, reciting statutory Alfred A. Inc. v. 509 F.2d Knopf, ry, merely Cf. 1362, (4th Cir.) (“the Hayden items v. sweeping.” 1367 deletion too vague [nor] [n]or 1381, they suppressed only Agency, should be are found F.2d Security National 608 denied, both and classifiable under (D.C.Cir.1979), to be classified cert. 1387 denied, cert. 421 Order”), 2156, (1980). the Executive 937, 100 992, 1999, time, the the satisfied that At same “[o]nce (1975). and procedures have been followed proper into the logically that the falls a accordingly We must establish standard claimed, go the exemption courts ‘need judicial review of the CIA classification expertise agency, further test the of the respect that the proper decision affords nothing question veracity or to its when rights recognizing individual at stake while ” faith.’ appears good to raise the issue of and expertise practical the CIA's technical Intelligence Agency, Gardels v. Central familiarity with the ramifications of sensi- (D.C.Cir.1982) (quoting F.2d 1104-05 tive We conclude review- information. that Agency, Intelligence Weissman v. Central ing courts a de should conduct novo review (D.C.Cir.1977)); see also 565 F.2d decision, giving classification while Agency, Halperin Intelligence v. Central deference to and detailed ex- reasoned CIA 144, 148 (D.C.Cir.1980). Similarly, 629 F.2d planations of that decision. Inc. v. the Knopf, Colby, supra, A. Alfred begin We with an examination of Circuit, Fourth the FOIA invoking after employed standard in the review of FOIA standard, reg of “presumption announced information, requests classified because ularity” for classification decisions. CIA scope judicial of review this case 509 F.2d at 1368. should be that broad. least The FOIA implicates calls for de novo review of judicial agen present Because case decision, however, rights, and first we feel cy places burden on the amendment agency to standard justify exemption. compelled go beyond its claim FOIA See, 552(a)(4)(B). e.g., U.S.C. cases censor Salisbury reviewing review for v. (D.C.Cir. ship pursuant secrecy agreements. 690 F.2d 1982); Military Project securing Audit While courts in such Casey, 656 we believe (D.C.Cir.1981). judg F.2d At the same determinations should defer to CIA time, publica courts are to “accord ment as harmful substantial results weight tion, to an them concerning satisfy affidavit must nevertheless agency’s they record, the details of or other the classified status of the selves from the camera wise, record” “the reason disputed good because Executive de the CIA in fact had that censor, partments responsible for national therefore the mate classify, defense and courts matters have in rials at policy unique Accordingly, issue. sights justi into what adverse affects should that CIA require explanations [sic] occur as a particular fy censorship specificity, result of a with reasonable S.Rep. logical record.” 93d between Cong., demonstrating No. 2d connection p. Sess. U.S.Code & Admin.News information and the reasons deleted (1974) (Conference on a Report rely These should not classification. rational Amendments). regularity” FOIA if such “presumption Minnesota, guaranty prevent first amendment’s] [is] previous (1931). upon publication.” Near v. restraints L.Ed.

explanations missing. anticipate are L.Ed.2d 516 affidavits, that in camera review of fol But while the CIA’s tasks include necessary lowed if further in protection quiry, will be the norm. Cf. Hayden the maintenance of the secrecy sensitive Security Agency, National 608 F.2d at 1387 information, judiciary’s tasks include (“in necessary camera review is neither nor protection of individual rights. Con- appropriate” in FOIA once the agency cases sidering “speech concerning public af- “(1) demonstrates it proper followed fairs is more than self-expression; is the classification procedures, self-government,”25 essence of and that the description the document falls logically line between threatening information Moreover, within the exemption”). claimed foreign policy and matters of legitimate cases,23 unlike FOIA in cases such as this public concern is often fine26 very see New both parties know the nature of the infor States, York Times v.Co. United 403 U.S. question. mation in Courts should there 29 L.Ed.2d 822 fore strive to benefit from “criticism and courts must assure themselves the rea- illumination by party with the actual [the] sons for are rational and plau- in forcing disclosure.” v. Vaughn sible ones. Rosen, 484 F.2d (D.C.Cir.1973) (de Application V. The scribing the defects in the procedures), FOIA of the Standard denied, rt. 415 U.S. This Case ce (1974). was, 39 L.Ed.2d 873 This We have judgment made such a fact, procedure the employed the by district case, and, after examining detailed court here.24 in camera affidavits of the parties, we con clude that are, course, properly of well aware that judi information at issue. The CIA cial review of affidavits decisions, CIA classification give us reason to believe by that disclosure of reasonable necessity, cannot second- censored of guess CIA McGehee’s article judgments on matters in which could be judiciary lacks the to cause seri requisite expertise. ous damage Due to the to the national security. “mosaic-like nature of intelli gence gathering,” affidavit offers Salisbury reasonably convincing v. United 690 F.2d detailed evidence of a serious risk example, in may telligence seem trivial sources to the unin and methods would be “[w]hat may appear great compromised of by proposed moment to disclosures by formed[] one who has a believe, broad view of the scene and McGehee. We also on the basis of may put the questioned item of information plausible put scenarios in the forward context,” Marchetti, affidavit, v. States that the United States could suf (4th F.2d Cir.), denied, cert. significant fer strategic and diplomatic set- system 23. This values”); circuit has devised a Speech Meiklejohn, that em Free ment A. ploys public justifications” by “detailed its Relation to Self-Government claimant, CIA and rebuttal the FOIA in an attempt to create some semblance of adversari DeJonge Oregon, 26. Cf. 299 U.S. Phillippi process. Intelligence al v. Central (1937) (“The great- 81 L.Ed 278 Agency, (D.C.Cir.1976). 546 F.2d importance safeguarding er the the commu- nity from incitements to the overthrow of our accordingly reject 24. We McGehee’s claim that violence, institutions force and the more improperly gave the district court “conclusive imperative preserve is the need to inviolate the Appellant’s deference” to the CIA in this case. rights speech, constitutional of free and free Brief at 33. assembly opportunity in order to maintain the discussion, political for free to the end that Louisiana, 25. Garrison 64, 74-75, government may responsive be to the will of 209, 215-16, (1964); see 13 L.Ed.2d 125 people desired, changes, may and that Co., NAACP v. Claiborne Hardware by peaceful obtained means. Therein lies the Republic, very of the (speech public foundation occupies on issues “highest government.”). rung hierarchy constitutional of First Amend- may we un- intelligence agencies’ history, a result of the disclosure backs as assess the ability to public’s dermine the risks These identified deleted information. duty. performance government’s not, course, rise affidavits do in the CIA against and criminal sanctions Economic we certainty, but believe the level of agents preclearance violate who enough justify real and serious they are justifiable. scheme are agency classification in this case. decision the classification system for mechanism in the But with no of the district Accordingly, judgment right to know with public’s balancing the court security, those sanctions possible risks to Affirmed. loss of permanent in the can result also debate. Our public critical WALD, Circuit Separate Statement restraints reflecting current today, decision Judge: not fill authority, our cannot and does ruled has that secre- public’s need for such a balance. here, contracts, the one such as involved cy MacKINNON, (con- Judge Circuit Senior of CIA legal employment; are a condition curring specially): this court that the “secret” clas- today finds scheme employed sification opin- in foregoing I the generally concur in constitutionally applied has the CIA been 22 in n. wholly ion but in the not statement this case. States, supra, v. United Snepp that under up- there essential difference between is an stress, however, write that separately I to as to the holding secrecy agreement the analysis our takes agency’s neither the nor a case here and classified any public of separate right account prepu- might where seek the critical classified facts about know albeit of informa- injunction blication the same intelligence the activities of agencies.1 our in place, tion. In first the statement the v. See Afshar (D.C.Cir. F.2d 1125 702 to the decision necessary footnote 22 is not 1983); cf. N.Y. Times v. 403 Second, two of this mind the my case. 2140, 2148-49, 29 U.S. same and types essentially of are the cases J., 822 (1970) (Stewart, concurring). the distinction support citation in of that of extremely It would course be difficult provides the assertion. support weak judges the public’s right “balance” States, 444 Snepp v. United at against acknowledged know an se 767, n. 100 8. risk, curity and I do not believe we are However, currently authorized to do so. Snepp merely in states The cited footnote important seems in view of revela recent good-faith arrival absent an at a past tions about in indiscretions the name Intelligence the agreement between Central of national security, governmental for some agency’s Agency under institution, system would procedure, Agency clearance “the itself, to such a balance. Emer injunc- conduct As an seeking have borne the burden of son explained, “history Id. give[s] value to (citations tion against publication.” present duty.” By hour and its said omitted). language Thus the Court’s burden, weighing the nothing public knowing weight value to of that not mandate “a much heavier about episodes relevant in the particularly certainly did 12,356, In the district and in his brief to Order No. C.F.R. court initial Executive court, (1983), balancing provision, this repealed McGehee asserted the CIA procedure, to follow CIA, infra, failed mandated be in found to Afshar v. this court effect, Executive Order in then the declassi- moot whether had failed the issue public fication of information when “the inter- repealed provi- previously to follow now outweighs damage est disclosure to na- light developments, these McGehee sion. expect- tional upon claims this balanc- abandoned his based ed from disclosure.” Exec. Order No. ing provision. Reply Appellants Brief for (1979); Appel- § C.F.R. see 1-2. However, subsequent lant’s Brief at 31-33. the “national interest” and matter burden,” Wald’s footnote 22 would affects Judge as seeking any Any party security.” us believe. “national Justice have that affects con some burden. I would injunction bears also indicate that White’s remarks volun enforcement of McGehee’s sider that publish all newspapers were not not to reveal agreement contractual tary “... Pentagon Papers: in the the material information is more akin press may choose never to responsible enjoin publication of an author right more sensitive materials.” 403 publish the matter. In Westermann Co. copyrighted 2151. Justice White U.S. at Co., Dispatch v. referred to in refers to the same material did 63 L.Ed. 499 my separate opinion United States injunction not interfere with a district court 446 F.2d Washington Company, Post infringement the future of certain against (1971): matter. Federal statutes also copyrighted some of the [B]y agreement parties authorize the issuance and en specifically .... protected documents will be injunctions forcement to restrain in J.). Thus, (MacKinnon, 446 F.2d at 1329. of a fringement copyright. U.S.C. Pentagon Papers the decision in the case See, Dodd, e.g., Mead Stat. prior prohibition against not as absolute a Lilienthal, (S.D.N. F.Supp. & Co. Justice Bren- restraint as some assert. As Y.1981) (injunction granted: no first remarked, it is an absolute bar to only nan right publi amendment to breach exclusive restraints in cir- imposition Brittanica, contract); cation Encyclopaedia presented of the kind those cumstances Crooks, F.Supp. (W.D.N.Y. etc. v. restrain the attempt cases —where the 1978). surmise or con- press “predicated upon was Footnote 22 also cites New York Times consequences may that untoward jecture Co. United 725-26, 91 S.Ct. at result.” but the concur- ring opinions of Justices and White Stewart in that case narrow their with concurrence

respect to the nature absolute restric-

tion on prior restraint. 403 U.S. at 2153. Jus-

tice Stewart remarked: is clear to me that it is the constitu-

[I]t

tional duty Executive —as a matter

of sovereign prerogative and not as a MOSRIE, Appellant, H. Arif matter of law as the courts know law— through the promulgation and enforce- regulations, protect ment of executive BARRY, Jr., Marion et al. S. out confidentiality necessary carry No. 82-1200. responsibilities in the fields of interna- tional relations national defense. Appeals, United States Court 403 U.S. at at 2149. Jus- Circuit. District Columbia tice Stewart further indicated that Argued Jan. injunction standard for publication such allegedly damaging documents was 7, 1983. Decided Oct. publication whether their re- “surely would direct, immediate, sult irreparable

damage to Nation people.” our or its

U.S. at at 2149. The various Times,

opinions in New York which in- Pentagon

volved the so-called draw Papers,

distinctions publishing between matter that

Case Details

Case Name: Ralph W. McGehee v. William Casey, Director, Cia

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Oct 4, 1983

Citation: 718 F.2d 1137

Docket Number: 81-2233

Court Abbreviation: D.C. Cir.