CIA V. SIMS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00530R000300560009-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 27, 2016
• Document Release Date: January 9, 2013
• Sequence Number: 9
• Publication Date: October 1, 1984
• Content Type: MISC

158
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BURGER, C. J., dissenting 471 U. S.
rating as precedent an opinion and judgment of which no final
review is possible and clearing the path for any future litiga-
tion are achievable?and incidentally, without at the same
time embracing a principle that would require dismissal of
indictments?by vacating the judgment below and remand-
ing with instructions to dismiss the habeas petition.
Even the Court in Durham recognized the validity of
distinguishing in this context between cases on direct and
habeas review; the Court very carefully limited its holding
to cases on direct review, see id., at 482-483. Our order
(*Dove also contemplated this distinction. In Dove, we
&ruled Durham only "Rio the extent that [Durham] may
be inconsistent with" our disposition in Dove, 423 U. S.,
at 325. We thereby removed any doubt that McMann?
which otherwise one might have thought the Court also
intended to overrule?was still valid precedent. Under
the circumstances, especially since Palermo not only relied
upon inapposite authority but failed even to acknowledge
McMann, I would not, as the Court does, read Palermo as
limiting us to a dismissal.
If it were true, however, as the Court implicitly must be-
lieve, that we are required now to overrule either McMann
or Palermo, l would "overrule" the latter. Palermo is the
case inconsistent with our asserted "established practice."
Palermo, not McMann, is the disposition in search of a
Affrponale.?
WBecause I believe we should not compound the evils of
a bad practice by repeating the error here, I dissent.
V. 1..111.
Syllabus
Ci-ENT.RAL AGENff ET AL. v.
SIIMS1W'
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 83-1075. Argued December 4, 1984?Decided April 16, 1985*
Between 1953 and 1966, the Central Intelligence Agency (CIA) financed a
research project, code-named MKULTRA, that was established to coun-
ter Soviet and Chinese advances in brainwashing and interrogation tech-
niques. Subprojects were contracted out to various universities, re-
search foundations, and similar institutions. In 1977, respondents in
No. 83-1075 (hereafter respondents) filed a request with the CIA under
the Freedom of Information Act (FOIA), seeking, inter alia, the names
of the institutions and individuals who had performed the research under
MKULTRA. Citing Exemption 3 of the FOIA?which provides that an
agency need not disclose "matters that are . . . specifically exempted
from disclosure by statute . . . provided that such statute . . . refers to
particular types of matters to be withheld"?the CIA declined to disclose
the requested information. The CIA invoked, as the exempting statute
referred to in Exemption 3, ? 102(d)(3) of the National Security Act of
1947, which states that "the Director of Central Intelligence shall be
responsible for protecting intelligence sources and methods from unau-
thorized disclosure." Respondents then filed suit under the FOIA in
Federal District Court. Applying, as directed by the Court of Appeals
on an earlier appeal, a definition of "intelligence sources" as meaning
only those sources to which the CIA had to guarantee confidentiality
in order to obtain the information, the District Court held that the
identities of researchers who had received express guarantees of con-
fidentiality need not be disclosed, and also exempted from disclosure
other researchers on the ground that their work for the CIA, apart from
MKULTRA, required that their identities remain secret. The court
further held that there was no need to disclose the institutional affili-
ations of the individual researchers whose identities were exempt from
disclosure. The Court of Appeals affirmed this latter holding, but
reversed the District Court's ruling with respect to which individual
researchers satisfied "the need-for-confidentiality" aspect of its formula-
*Together with No. 83-1249, Sims et at. v. Central Intelligence Agency
et at., also on certiorari to the same court.
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I.A.,.1visr.n. ir.uvL, 1V?5,1 ?....trk V. ?lino
Syllabus 471 U. S.
tion of exempt "intelligence sources." The Court of Appeals held that it
was error automatically to exempt from disclosure those researchers to
whom confidentiality had been promised, and that an individual qualifies
as an "intelligence source" exempt from disclosure under the FOIA only
when the CIA offers sufficient proof that it needs to protect its efforts in
confidentiality in order to obtain the type of information provided by the
researcher.
Held:
1. Section 102(d)(3) qualifies as a withholding statute under Exemp-
tion 3. Section 102(d)(3) clearly refers to "particular types of matters"
within the meaning of Exemption 3. Moreover, the FOIA's legislative
Chistory confirms that Congress intended ?102(d)(3) to be a withholding
tatute under that Exemption. And the plain meaning of ? 102(d)(3)'s
language, as well as the National Security Act's legislative history, indi-
cates that Congress vested in the Director of Central Intelligence broad
authority to protect all sources of intelligence information from disclo-
sure. To narrow this authority by limiting the definition of "intelligence
sources" to sources to which the CIA had to guarantee confidentiality in
order to obtain the information, not only contravenes Congress' express
intention but also overlooks the practical necessities of modern intelli-
gence gathering. Pp. 166-173.
2. MKULTRA researchers are protected "intelligence sources" within
? 102(dX3)'s broad meaning, because they provided, or were engaged to
provide, information that the CIA needed to fulfill its statutory obliga-
tions with respect to foreign intelligence. To force the CIA to disclose a
source whenever a court determines, after the fact, that the CIA could
have obtained the kind of information supplied without promising con-
fidentiality, could have a devastating impact on the CIA's ability to carry
out its statutory mission. The record establishes that the MKULTRA
Oresearchers did in fact provide the CIA with information related to
its intelligence function, and therefore the Director was authorized to
withhold these researchers' identities from disclosure under the FOIA.
Pp. 173-177.
3. The FOIA does not require the Director to disclose the institutional
affiliations of the exempt researchers. This conclusion is supported by
the record. The Director reasonably concluded that an observer who
is knowledgeable about a particular intelligence research project, such
as MKULTRA, could, upon learning that the research was performed at
a certain institution, deduce the identities of the protected individual
researchers. Pp. 177-181.
228 U. S. App. D. C. 269, 709 F. 2d 95, affirmed in part and reversed in
part.
159 Opinion of the Court
161
BURGER, C. J., delivered the opinion of the Court, in which WHITE,
BLACKMUN, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined.
MARSHALL, J., filed an opinion concurring in the result, in which BREN-
NAN, J., joined, post, p. 181.
Acting Assistant Attorney General Willard argued the
cause for petitioners in No. 83-1075 and respondents in
No. 83-1249. With him on the briefs were Solicitor General
Lee, Deputy Solicitor General Geller, David A. Strauss,
Robert E. Kopp, Leonard Schaitman, and Stanley Sporkin.
Paul Alan Levy argued the cause for respondents in
No. 83-1075 and petitioners in No. 83-1249. With him on
the briefs were Alan B. Morrison and David C. Vladeck.
CHIEF JUSTICE BURGER delivered the opinion of the
Court.
In No. 83-1075, we-:-IrantedzcertiorarimtozIdecide-whettrer
?:102(d)-(3)7cif:th-C-NAtional:Se-cifrity:Atriff:1947,_as-.incorpTo-
icAvd-in--Exenlyiiiiirarof-th-e-i-Ere-e-donL7alriformation-rItc_t
ts-from-disclosure-only-those-ntfurce_s:Tofrintelligemre7
dnformation-to-which-the-kentratintefitence7Agrerrcy:hatht-o
guArant-e-e-confidentiality_inder-to-obtain-the-information.
In No. 83-1249, tche_cro-ss:petition-r__we7grant-e-th-certiorarizto-
decide:wh-eth-erith-e:Freedontof:Info-rmationrAct7requires-t-he,-,
c__-gency-to-discl-o-s-elth-eiristitritioal=5:ffiliations-of-Wrs-ons
whose-klentities:areTexempt-from-disclosure-m-sfintelligence>
csounesf,'
Between 1953 and 1966, the Central Intelligence Agency
financed a wide-ranging project, code-namedcl\MILTRA,
concerned with "the research and development of chemical,
biological, and radiological materials capable of employment
in clandestine operations to control human behavior."' The
' Final Report of the Select Committee to Study Government Operations
with Respect to Intelligence Activities, S. Rep. No. 94-755, Book I, p. 389
(1976) (footnote omitted) (Final Report). MKULTRA began with a pro-
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Opinion of the Court 471 U. S.
program-consisted-otso e71497subprojecMwhitt-the7A-genr
ccontracted-out:tuivarious universities, _researchTfountlatitins,
Adeast_801mtitutions-an-d=11357W-
vate_researchers-participated. Because the Agency funded
MKULTRA indirectly, many of the participating individuals
were unaware that they were dealing with the Agency.
MKULTRA was established to counter perceived Soviet
and Chinese advances in brainwashing and interrogation
techniques. Over the years the program included various
medical and psychological experiments, some of which led to
,--\untoward results.' These aspects of MKULTRA surfaced
publiclyL._; during the 1970's and became the subject of execu-
tive and congressional investigations.'
On August 22, 1977, John C. Sims, an attorney, and
Sidney M. Wolfe, M.D., the director of the Public Citi-
posal from Richard Helms, then the Agency's Assistant Deputy Director
for Plans. Helms outlined a special funding mechanism for highly sen-
sitive Agency research and development projects that would study the
use of biological and chemical materials in altering human behavior.
MKULTRA was approved by Allen Dulles, then the Director of Central
Intelligence, on April 13, 1953.
'Several MKULTRA subprojects involved experiments where re-
searchers surreptitiously administered dangerous drugs, such as LSD,
to unwitting human subjects. At least two persons died as a result of
MKULTRA experiments, and others may have suffered impaired health
because of the testing. See id., at 392-403. This type of experimentation
Cis now expressly forbidden by Executive Order. Exec. Order No. 12333,
*2.10, 3 CFR 213 (1982).
'See generally Final Report, at 385-422, 471-472; Report to the Presi-
dent by the Commission on CIA Activities Within the United States 226-
228 (June 1975); Project MKULTRA, the CIA's Program of Research in
Behavioral Modification: Joint Hearings before the Select Committee on
Intelligence and the Subcommittee on Health and Scientific Research of
the Senate Committee on Human Resources, 95th Cong., 1st Sess. (1977);
Human Drug Testing by the CIA, 1977: Hearings on S. 1893 before the
Subcommittee on Health and Scientific Research of the Senate Committee
on Human Resources, 95th Cong., 1st Sess. (1977).
An internal Agency report by its Inspector General had documented the
controversial aspects of the MK ULTRA project in 1963. See Report of
Inspection of MKULTRA (July 26, 1963).
159 Opinion of the Court
163
zen Health Research Group4 filed a request with the Cen-
tral Intelligence Agency seeking certain information about
MKULTRA. Respondents invoked the Freedom of Infor-
mation Act (FOIA), 5 U. S. C. ?552. Specifically, respond-
ents sought the grant proposals and contracts awarded under
the MKULTRA program and the names of the institutions
and individuals that had performed research.'
Pursuant to respondents' request, the Agency made avail-
able to respondents all of the MKULTRA grant proposals
and contracts. Citing Exemption 3 of the FOIA, 5 U. S. C.
?552(b)(3)(B)," however, th-e--A-geney?dec1ined?to?disclose-
the_nan-oriridiVidtV-researchers-zancl-7217-institutions-i
Exemption 3 provides that an agency need not disclose "mat-
ters that are . . . specifically exempted from disclosure by
statute . . . provided that such statute . . . refers to par-
'Sims and Wolfe are the respondents in No. 83-1075 and the cross-
petitioners in No. 83-1249. In order to avoid confusion, we refer to Sims
and Wolfe as respondents throughout this opinion.
Twenty years after the conception of the MKULTRA project, all known
files pertaining to MKULTRA were ordered destroyed. Final Report,
at 389-390, 403-405. In 1977, the Agency located some 8,000 pages of
previously undisclosed MKULTRA documents. These consisted mostly
of financial records that had inadvertently survived the 1973 records
destruction. Upon this discovery, Agency Director Stansfield Turner
notified the Senate Select Committee on Intelligence and later testified
at a joint hearing before the Select Committee and the Subcommittee
on Health and Scientific Resources of the Senate Committee on Human
Resources. Although the Joint Committee was given a complete list of
the MKULTRA researchers and institutions, the Committee honored the
Agency's request to treat the names as confidential. Respondents sought
the surviving MKULTRA records that would provide this information.
'The Agency also cited Exemption 6, 5 U. S. C. *552(b)(6), which in-
sulates from disclosure "personnel and medical files and similar files
the disclosure of which would constitute a clearly unwarranted invasion
of personal privacy." This claim, rejected by the District Court and the
Court of Appeals, is no longer at issue.
'The Agency tried to contact each institution involved in MKULTRA to
ask permission to disclose its identity; it released the names of the 59 insti-
tutions that had consented. Evidently, the Agency made no parallel effort
to contact the 185 individual researchers. See n. 22, infra.
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Opinion of the Court 471 U. S.
ticular types of matters to be withheld." Ibid. The Agency
relied on ?102(d)(3) of the National Security Act of 1947, 61
Stat. 498, 50 U. S. C. ?403(d)(3), which states that
"the Director of Central Intelligence shall be responsible
for protecting intelligence sources and methods from
unauthorized disclosure."
Dissatisfied with the Agency's limited disclosure, respond-
ents filed suit under the FOIA, 5 U. S. C. ?552(a)(4)(B),
in the United States District Court for the District of
Columbia. That court ordered disclosure of the withheld
(, jnames, holding that the MKULTRA researchers and affili-
ated institutions were not "intelligence sources" within the
meaning of ?102(d)(3). 479 F. Supp. 84 (1979).
On appeal, the United States Court of Appeals concluded,
as had the District Court, that ?102(d)(3) qualifies as a with-
holding statute under Exemption 3 of the FOIA. The court
held, however, that the District Court's analysis of that
statute under the FOIA lacked a coherent definition of
"intelligence sources." Accordingly, it remanded the case
for reconsideration in light of the following definition:
"[A]n 'intelligence source' is a person or institution that
provides, has provided, or has been engaged to provide
the CIA with information of a kind the Agency needs to
perform its intelligence function effectively, yet could
not reasonably expect to obtain without guaranteeing
the confidentiality of those who provide it." 206 U. S.
App. D. C. 157, 166, 642 F. 2d 562, 571 (1980).
On remand, the District Court applied this definition
and ordered the Agency to disclose the names of 47 research-
ers and the institutions with which they had been affil-
iated. The court rejected respondents' contention that the
MKULTRA research was not needed to perform the Agen-
cy's intelligence function, explaining that
"[un view of the agency's concern that potential foreign
enemies could be engaged in similar research and the
159 Opinion of the Court
165
desire to take effective counter-measures, . . . [the
Agency] could reasonably determine that this research
was needed for its intelligence function." App. to Pet.
for Cert. in No. 83-1075, pp. 22a-23a.
The court then turned to the, question whether the Agency
could show, as the Court of Appeals' definition requires,
that it could not reasonably have expected to obtain the
information supplied by the MKULTRA sources without
guaranteeing confidentiality to them. The court concluded
that the Agency's policy of considering its relationships with
MKULTRA researchers as confidential was not sufficient to
satisfy the Court of Appeals' definition because "the chief
desire for confidentiality was on the part of the CIA." Id.,
at 24a. The court recognized that some of the researchers
had sought, and received, express guarantees of confidential-
ity from the Agency, and as to those held that their identities
need not be disclosed. The court also exempted other
researchers from disclosure on the ground that their work
for the Agency, apart from MKULTRA, required that their
identities remain secret in order not to compromise the
Agency's intelligence networks in foreign countries. Id., at
26a-27a, 30a-31a. Finally, the court held that there was no
need to disclose the institutional affiliations of the individual
researchers whose identities were exempt from disclosure;
this withholding was justified by the need to eliminate the
unnecessary risk that such intelligence sources would be
identified indirectly. Id., at 27a, 34a.
Both the Agency and respondents appealed. The Court of
Appeals affirmed that part of the District Court's judgment
exempting from disclosure the institutional affiliations of
individual researchers found to be intelligence sources.
However, it reversed the District Court's ruling with respect
to which individual researchers satisfied "the need-for-
confidentiality" aspect of its formulation of exempt "intelli-
gence sources." 228 U. S. App. D. C. 269, 275, 709 F. 2d 95,
101 (1983).
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Opinion of the Court 471 U. S.
At the outset, the court rejected the suggestion that it
reconsider the definition of "intelligence sources." Id., at
271, 709 F. 2d, at 97. The court then criticized the District
Court for focusing its inquiry on whether the Agency had in
fact promised confidentiality to individual researchers. The
court held that the District Court's decision automatically to
exempt from disclosure those researchers to whom confiden-
tiality had been promised was erroneous; it directed the Dis-
trict Court on remand to focus its inquiry on whether the
Agency offered sufficient proof that it needed to cloak its
(Th efforts in confidentiality in order to obtain the type of
information provided by the researcher. Only upon such a
showing would the individual qualify as an "intelligence
source" exempt from disclosure under the FOIA.8
We granted certiorari, 465 U. S. 1078 (1984) and 467 U. S.
1240 (1984). We now reverse in part and affirm in part.
II
No. 83-1075
A
The mandate of the FOIA calls for broad disclosure of
Government records.8 Congress recognized, however, that
"Judge Bork wrote a separate opinion, concurring in part and dissenting
in part. He criticized the majority's narrow definition of "intelligence
sources," urging in particular that there is "no reason to think that section
403(dX3) was meant to protect sources of information only if secrecy was
needed in order to obtain the information." 228 U. S. App. D. C., at 277,
709 F. 2d, at 103. He noted that "Mt seems far more in keeping with the
broad language and purpose of [?403(d)(3)] to conclude that it authorizes
the nondisclosure of a source of information whenever disclosure might
lead to discovery of what subjects were of interest to the CIA." Ibid.
He also took issue with the majority's conclusion that the FOIA sometimes
requires the Agency to break a promise of confidentiality it has given to an
intelligence source. This is "not an honorable way for the government of
the United States to behave," and would produce "pernicious results."
Id., at 276-277, 709 F. 2d, at 102-103.
'The Court has consistently recognized this principle. See, e.
Boldrige v. Shapiro, 455 U. S. 345, 352 (1982); NLRB v. Robbins Tire &
159 Opinion of the Court
public disclosure is not always in the public interest and thus
provided that agency records may be withheld from disclo-
sure under any of the nine exemptions defined in 5 U. S. C.
?552(b). Under Exemption 3 disclosure need not be made
as to information "specifically exempted from disclosure by
statute" if the statute affords the agency no discretion on
disclosure, ?552(b)(3)(A), establishes particular criteria for
withholding the information, or refers to the particular types
of material to be withheld, ?552(b)(3)(B).
The question in No. 83-1075 is twofold: first, does
? 102(d)(3) of the National Security Act of 1947 constitute
a statutory exemption to disclosure within the meaning of Ex-
emption 3; and second, are the MKULTRA researchers in-
cluded within ?102(d)(3)'s protection of "intelligence sources."
ceo-bgrs-s _has-:_made-the--Directoof-f Entral_Intelligeffe
"responsible-W-protect_kgi -intelligence-sources-and-methods
(kom-unauthorized-disclosure50 U. S. C. ?403(d)(3). (As?
part-ofits-postwarreorgapization-ofth-e7n-ation-atdefense7sys,
tem,--ic-ongress:chartere-dIthe:A.gency_witirt1W:re-sponsibility
pf-coordinating7intellireiwe7activities-relating-to-Tnational
Ircord-ei-l--try=out=itsTmissioni-the--AgencyD,
was-expre-ssIscientrusted-with--,protectin-g=th-e7rea-rtiot7_all
intelligencemperaticiris?"sourc-es:and_meth-o-dg?"
St-ctibn--_-102(d)(3):ToLtM7N-ational7S:ecurity---Act7of-_-_1947,
which calls for the Director of Central Intelligence to protect
"intelligence sources and methods," clearly "refers to par-
ticular types of matters," 5 U. S. C. ?552(b)(3)(B), and thus
qualifies-as-a-_withholdtng statute_untlei?ExemptionT3? The
"plain meaning" of the relevant statutory provisions is suffi-
cient to resolve the question, see, e. g., Garcia v. United
Rubber Co., 437 U. S. 214, 220 (1978); EPA v. Mink, 410 U. S. 73, 80
(1973).
"'See, e. g., H. R. Rep. No. 961, 80th Cong., 1st Sess., 3(1947); S. Rep.
No. 239, 80th Cong., 1st Sess., 1 (1947).
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168
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Ut_. 1 VOLK 1 LIM, IM4 Ullt V. .11V.IZ
Opinion of the Court 471 U. S.
States, 469 U. S. 70, 75 (1984); United States v. Weber
Aircraft Corp., 465 U. S. 792, 798 (1984). Moreoverimthe
le-gislativewhistoryffofeitheoFiOIAliconfirmslithatmgongress
inten-detlii?)1702(d)(3)Atombezraiswithholding-agt-Witelitind:en
ExeraptiotiliK" Indeed, this is the uniform view among
other federal courts.'
Our conclusion that ?102(d)(3) qualifies as a withholding
statute under Exemption 3 is only the first step of the
inquiry. Agencyarecordsmareeprotected-sun-deraK02(d)(3)
finlyitoith-effeTcrefitistheymcontairligifftelhgencewsources-Tai0
rnethods_kordifidisclosur_e-iwouldweve-alvotherwiseiprotected
iinforiratiom
C
Respondents contend that the Court of Appeals' definition
of "intelligence sources," focusing on the need to guarantee
confidentiality in order to obtain the type of information
desired, draws the proper line with respect to intelligence
sources deserving exemption from the FOIA. Th-e?plain,
\
\
( raeaningtofith-etstatittorlanguage, fasiwelliasitherlegislative
NstorytofithetN-ationaliSecurityffiAret,howeverftinditiategtgat
CongmssivestedrinitheiDiY-e-cloi:rafigefftiVrIntelligenceivery
"See H. R. Rep. No. 94-880, pt. 2, p. 15, n. 2 (1976). See also H. R.
Conf. Rep. No. 93-1380, p. 12 (1974); S. Conf. Rep. No. 93-1200, p. 12
(1974); S. Rep. No. 93-854, p. 16 (1974). For a thorough review of the
relevant background, see DeLaurentiis v. Haig, 686 F. 2d 192, 195-197
(CA3 1982) (per curiam).
Recently, Congress enacted the Central Intelligence Agency Informa-
tion Act, Pub. L. 98-477, 98 Stat. 2209, exempting the Agency's "opera-
tional files" from the FOIA. The legislative history reveals that Congress
maintains the position that ?102(d)(3) is an Exemption 3 statute. See,
e. g., H. R. Rep. No. 98-726, pt. 1, p. 5 (1984); S. Rep. No. 98-305, p. 7,
n. 4 (1983).
See, e. g., Miller v. Casey, 235 U. S. App. D. C. 11, 15, 730 F. 2d 773,
777 (1984); Gardels v. CIA, 223 U. S. App. D. C. 88, 91, 689 F. 2d 1100,
1103 (1982); Halperin v. CIA, 203 U. S. App. D. C. 110, 113, 629 F. 2d
144, 147 (1980); National Comnen on Law Enforcement and Social Justice
v. CIA, 576 F. 2d 1373, 1376 (CA9 1978).
159 Opinion of the Court
169
ibroadfauthoritNtoiprotecifalltsourcesrohififellipircetiliforThial-
ctionyfromidisclosure. The Court of Appeals' narrowing of
this authority not only contravenes the express intention
of Congress, but also overlooks the practical necessities
of modern intelligence gathering?the very reason Congress
entrusted this Agency with sweeping power to protect its
"intelligence sources and methods."
We begin with the language of ?102(d)(3). Baldrige v.
Shapiro, 455 U. S. 345, 356 (1982); Steadman v. SEC, 450
U. S. 91, 97 (1981). -,,tiono102(d)(3))specifically authorizes
the Director of Central Intelligence to protect "intelligence
sources and methods" from disclosure. glainlyiethembrad
sweep_aohithis-istatutory.slanguageteomp-ortswith4heffnaturer
ofith-enkgency;stuniqu-eire-sponsibilitia-. Toike-ep-iinformedrof
ottieranations-ifactivitie-sibeuringfonvourinationalityltlie
Agencyarnust-arelyenvaihostiroffsources. Atith-ersa-m-ettimel
theiDirectorimustshaveithelauthorityitmshieldithoseAgeticy
activitiesian-disourcesifromianyrdisclusuresithat4wouldiumee=
ess-ari-lykcompromis-eith-eyA-gen-cyls-reffoi'?Cs.
The "plain meaning" of ?102(d)(3) may not be squared with
any limiting definition that goes beyond the requirement that
the information fall within the Agency's mandate to conduct
foreign intelligence. Les_pioni-1-02(d)(3)rd.oes1n-otistat*, as the
Court of Appeals' view suggests, th-atithe/Directoriofaentral
oIlly-esillifg..esunecheeipisrwotaeuctthi_o-onrviziserdnitete-odisepdrottzotbstainintevil-nli
rrinnTivtiso=1
9,ther,wiseicouldin-otibiactrTd3, N-orardidsGo:n-gressitstate,
Ithatjkonlyaconfidentialworanonpublic-eintelligenceisourcesirare,
protecte-dim Sectimr102(M)/c_ontains-inoirsuchylimitingflant,
guage. Cippgre-s-srsimplyiandiptiinte-dlygpretectedtallisources"
'Congress certainly is capable of drafting legislation that narrows the
category of protected sources of information. In other provisions of the
FOIA and in the Privacy Act, Congress has protected "confidential
source[s]," sources of "confidential information," and sources that provided
information under an express promise of confidentiality. See 5 U. S. C.
?? 552(b)(7)(D), 552a(k)(2) and (5).
\O
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110 EJ11.01, 1.U04 CIA v. SIMS
Opinion of the Court 471 U. S.
0-intelligence-that provide7 or are engned-to-providei-in,
Writ-aim the Agency needg-teTp-erform-its-statutory-duties
with-respect to The plain statutory
language is not to be ignored. Weber Aircraft Corp., supra,
at 798.
The legislative history of fiti2(d)()-. also makes clear that
Congress intended to give-the-Dirator_of_Centtal_Intelli=
Cgence broad power-to _protect-the_se-crecy-and-:integrity-of-
the-intelligen-ce-zprodeig: The reasons are too obvious to call
for enlarged discussion; without such protections the Agency
would be virtually impotent.
Enacted shortly after World War II, ?102(d)(3) of the
National Security Act of 1947 established the Agency and
empowered it, among other things, "to correlate and evaluate
intelligence relating to the national security." 50 U. S. C.
?403(d)(3). The tragedy of Pearl Harbor and the reported
deficiencies in American intelligence during the course of
the war convinced the Congress that the country's ability
to gather and analyze intelligence, in peacetime as well as
in war, must be improved. See, e. g., H. R. Rep. No. 961,
80th Cong., 1st Sess., 3-4 (1947); S. Rep. No. 239, 80th
Cong., 1st Sess., 2 (1947).
Congress-knew-iquite well that the Agency would gather
intelligence from almost-TA n7infinite varietyi-ofdiverse,
(sources. Indeed, one of the primary reasons for creating
the Agency was Congress' recognition that our Government
would have to shepherd and analyze a "mass of information"
in order to safeguard national security in the postwar world.
See ibid. Witnesses with broad experience in the intelli-
gence field testified before Congress concerning the practi-
cal realities of intelligence work. Fleet Admiral Nimitz,
for example, explained that `(!intelligence ig-TaTc-omposite-of-,
cauth-enticated-and-evaluated-filiformatirria ohly-
the-aTmed_forces establishment-of:a possible-en-emy,-but-also-
his-inthatri-al7c-apacity, racial traitsireligious- -beliefs, and--
,other7i.elkItid aspects." National Defense Establishment:
159 Opinion of the Court
171
Hearings on S. 758 before the Senate Committee on Armed
Services, 80th Cong., 1st Sess., 132 (1947) (Senate Hear-
ings). General Vandenberg, then the Director of the Cen-
tral Intelligence Group, the Agency's immediate prede-
cessor, emphasized that "foreign intelligence [gathering]
consists of securing all possible data pertaining to foreign
governments or the national defense and security of the
United States." Id., at 497.14
Witnesses-:spokeAof-the-extraordinaryrdiversity-ofintelli,.
gence-sources7-; Allen7Dulles, for example, the Agency's
third Director, shattered-the-myth-of-the-classic-"secret
. -
agent" asithe-typrcal-mtelhgence-source, and explained that
"American-bwinessmen-and-Americ-an-wcfessors
cans-of- all types-and- -descriptions--who- travel-around-the
cworld are--one--of-the --greatest--repositories7of -intelligence
tlmtwei-have--.-" National Security Act of 1947: Hearing on
H. R. 2319 before the House Committee on Expenditures in
the Executive Departments, 80th Cong., 1st Sess., 22 (1947)
(Closed House Hearings).15 In a similar vein, (General-Van-
denberg spoke_of "the-great-open-sources-ofinforrnatiorrupon-
which-roughly-80-percentofintelligence-should-be-based," wid
adentified-such-sources as ."books, magazines, technical-and
,scientific surveys, photogdphsccommercial-analyses-i-news-
papers-i-and-radio-broadcastsTand-general-information- from
"Congressmen certainly appreciated the special nature of the Agency's
intelligence function. For example, Representative Wadsworth remarked
that the "function of [the Agency] is to constitute itself as a gathering point
for information coming from all over the world through all kinds of chan-
nels." 93 Cong. Rec. 9397 (1947). Representative Boggs, during the
course of the House hearings, commented that the Director of Central
Intelligence "is dealing with all the information and the evaluation of that
information, from wherever we can get it." National Security Act of 1947:
Hearings on H. R. 2319 before the House Committee on Expenditures in
the Executive Departments, 80th Cong., 1st Sess., 112 (1947).
"These hearings were held in executive session. The transcript was
declassified in 1982. The Senate also held hearings behind closed doors.
See S. Rep. No. 239, 80th Cong., 1st Sess., 1 (1947).
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Opinion of the Court 471 U. S.
peopleiwithiknowledgetifigfairgrabroad:" Senate Hearings,
at 492.
Gongreasolsokvellrawareiof-the.importanuelofise-crecy
in the intelligence field. Both General Vandenberg and I
Allen Dulles testified about the grim consequences facing
intelligence sources whose identities became known. See
Closed House Hearings, at 10-11, 20. Moreover, Dulles
explained that even American citizens who freely supply
intelligence information "close up like a clam" unless they
can hold the Government "responsible to keep the complete
oakksecurity of the information they turn over." Id., at 22.16
Congress was plainly alert to the need for maintaining
confidentiality?both Houses went into executive session to
consider the legislation creating the Agency?a rare practice
for congressional sessions. See n. 15, supra.
Against this background highlighting the requirements of
effective intelligence operations, Congress expressly made
the Director of Central Intelligence responsible for_tprotect-
ing intelligence sources and_methods_from unauthorized dis-
--cliTs---7ure This language stemmed from President Truman's
Diwaive of January 22, 1946, 11 Fed. ReV1337, in whichlte_
established th-eion intelligenceAuthority and the Gem,.
ti?-arInt--eiliW--wa-7----oup, the Agency's predecessors. These
Thigitiitrons were cha?ria with "assur[ing] the most effective
accomplishment of the intelligence mission related to the
national security," ibid., and accordingly made "responsible
"Secrecy is inherently a key to successful intelligence operations. In
the course of issuing orders for an intelligence mission, George Washington
wrote to his agent:
"The necessity of procuring good intelligence, is apparent and need not
be further urged. All that remains for me to add is, that you keep the
whole matter as secret as possible. For upon secrecy, success depends
in most Enterprises of the kind, and for want of it they are generally
defeated . . . ." 8 Writings of George Washington 478-479 (J. Fitzpatrick
ed. 1933) (letter from George Washington to Colonel Elias Dayton, July
26, 1777).
159 Opinion of the Court
for fully protecting intelligence sources and methods," id., at
1339. The fact that the mandate of ?102(d)(3) derives from
this Presidential Directive reinforces our reading of the legis-
lative history that Congress gave the Agency broad power to
control the disclosure of intelligence sources.
III
A
Applying the definition of "gligence sources" fashioned
by the Congress in ?102(d)(3), we hold that the Director of
-Central Intelligence was well within his statutory authority
-to-witlihold the names of the MKULTRA researchers from_
-disclosure under the POIA. The District Court specifically
-ruled-that-tire-AgeThiET"Totli d reasonably determine that this
research was needed for its intelligence function," and
the Court of Appeals did not question this ruling. Indeed,
the record shows that the MKULTRA research was related
to the Agency's intelligence-gathering function in part be-
cause it revealed information about the ability of foreign
governments to use drugs and other biological, chemical, or
physical agents in warfare or intelligence operations against
adversaries. During the height of the cold war period,
the Agency was concerned, not without reason, that other
countries were charting new advances in brainwashing and
interrogation techniques.'8
-veronsisteritxwithlts--Tesponsibilitrto,maintainvnationasecu-n,
pityittreikkgencrre as onablyFcletermined,that-maj mires eat-Rh,
"App. to Pet. for Cert. in No. 83-1075, pp. 22a-23a.
" For example, Director of Intelligence Stansfield Turner explained
in an affidavit that the MKULTRA program was initiated because the
Agency was confronted with "learning the state of the art of behavioral
modification at a time when the U. S. Government was concerned about
inexplicable behavior of persons behind the 'iron curtain' and American
prisoners of war who had been subjected to so called 'brainwashing." Id.,
at 89a.
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Opinion of the Court 471 U. S.
efforts -were -necessary_in_order-tT):kWinfaciiiedo-
d'entialadversariegperceived-threat: We-thusioncludettfat
M-KULTRAresearchers:areintelligencesources1-within-the
broad-meanin_g7of=?102(d)(3):because-these-persons-provide-d,
or-were-engaged-AoTprovideT-information:thegency__ifeas-
4t-fulfillrits-statutory--obligations-with-:_revectzto--foreigp
(intelligence:
Respondents' belated effort to question the Agency's
authority to engage scientists and academic researchers as
intelligence sources must fail. The legislative history of
C102(d)(3) indicates that Congress was well aware that the
-igency would call on a wide range and variety of sources to
provide intelligence. Moreover, the-record-Aevelopettin
this_ case-confiririsIthe obviaisThWtance-_--of_ scientists-4/AI
Otherarchers:as-American-mtelligence-sourceg. Nota-
ble examples include those scientists and researchers who
pioneered the use of radar during World War II as well as the
group which took part in the secret development of nuclear
weapons in the Manhattan Project. See App. 43; App. to
Pet. for Cert. in No. 83-1075, p. 88a.'9
The Court of Appeals narrowed the Director's authority
under ?102(d)(3) to withhold only those "intelligence sources"
who supplied the Agency with information unattainable with-
out guaranteeing confidentiality. That crabbed reading of
Che statute contravenes the express language of ?102(d)(3),
the statute's legislative history, and the harsh realities of the
present day. The dangerous consequences of that narrow-
ing of the statute suggest why Congress chose to vest the
"Indeed, the legislative history of the recently enacted Central Intelli-
gence Agency Information Act, Pub. L. 98-477, 98 Stat. 2209, in which
Congress exempted the Agency's "operational files" from disclosure
under the FOIA, reveals Congress' continued understanding that scien-
tific researchers would be valuable intelligence sources. See H. R. Rep.
No. 98-726, pt. 1, p. 22 (1984).
159 Opinion of the Court
175
Director of Central Intelligence with the broad discretion to
safeguard the Agency's sources and methods of operation.
The Court of Appeals underestimated the importance of
providing intelligence sources with an assurance of confiden-
tiality that is as absolute as possible. Under the court's
approach, the Agency would be forced to disclose a source
whenever a court determines, after the fact, that the Agency
could have obtained the kind of information supplied without
promising confidentiality.' This forced disclosure of the
identities of its intelligence sources could well have a devas-
tating impact on the Agency's ability to carry out its mission.
"a_e-Government-has-a-compelling-interestdn:Trotecting
f?both-the-secrecy-of-information-important-:_to7ournational
security-and-the- appearan-ce:of-confidentiality:so -essentiatto
thereffective_operation_oLour:foreignintelligencerservice."
itec_sIatata, 444 U. S. 507, 509, n. 3 (1980) (per
curiam). See Haig v. Agee, 453 U. S. 280, 307 (1981). cif
potentially-valuable-intelligence-sources-come-to-think-that
he-Agency-will-be-unable:to:maintain-the:confidentiality-ofy
its-relationship-to-themp frnany-could-well-refuse_to-_-supply
information to_the_Agency-in-the:firstplace.
E verra:mall ch an c e:thatsome:court--_-will7order-- dis-closime
Tf-a-sour-c-egidatity:could-well-impair-intelligence-gat-hering
and-cause-sources-to-mcloseTupiike:a-clam." To induce some
sources to cooperate, the?Government must tender as abso;
lute an assurance of confidentiality as it possibly can. "The
continued_availabilitroftintelligenceizsources-depends=upon
the-CIA's:ability_to_guarantee7thelsecurity=of=information
Indeed, the Court of Appeals suggested that the Agency would be
required to betray an explicit promise of confidentiality if a court deter-
mines that the promise was not necessary, or if a court concludes that the
intelligence source to whom the promise was given was "unreasonably and
atypically leery" of cooperating with the Agency. 228 U. S. App. D. C.,
at 273, 709 F. 2d, at 99. However, "[g]reat nations, like great men, should
keep their word." FPC v. Tuscarora Indian Nation, 362 U. S. 99, 142
(1960) (Black, J., dissenting).
cP\
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tirat-tnight-coinpkomise thein and even endanger [theirYper-
s-Wai 1 safety." pv United States,- supra, at 512.
We seriously doubt whether a potential intelligence source
will rest assured knowing that judges, who have little or no
background in the delicate business of intelligence gathering,
will order his identity revealed only after examining the facts
of the case to determine whether the Agency actually needed
to promise confidentiality in order to obtain the information.
tAtkIligetite,sburce-will-"not be coneerned-with-the under-
lying-rationaleilaTdisclosure-of" his cooperation if itWa
.icured-"under-assurances-oVconfidentiality." Baldrige v.
-Shapiro, 455 U. S., at 361. (Moreover;- a-court'sision
whether-n-intelligence source wilt be harmedif his-id-entity
is revealedwill-of teicrequife histetic-a1;-and
psTchologieal-jiidgines. See, e. g., Fitzgibbon v. CIA, 578
F. Supp. 704 (DC 1983). There-is-no-reason-for a potential-,
inteI1igeeaour?-whose welfare and safety may be-Tat
staketo-have?greartonficlence in the ability_ of judges-to-
make-those judgments corr-edly.
The Court of Appeals also failed to recognize that when
Congress protected "intelligence sources" from disclosure,
it was not simply protecting sources of secret intelligence
information. As noted above, Congress was well aware that
secret agents as depicted in novels and the media are not the
typical intelligence source; many important sources provide
(---'otelligence information that members of the public could also
obtain. Underith-e Courtof -Appeale-approach-,--th-e AgOKey
could-not-withhold the identityof a source=of Intelligence
if-that-information-is-also-publicly available. This-analysis
ignores-the-realities of-intelligence7work:which-often-in-
yolves seemingly innocuous sourcesas well as unsuspecting
provide-v-RhTableTiritelligence-informatiOn:
Disclosure of the subject matter of the Agency's research
efforts and inquiries may compromise the Agency's ability to
gather intelligence as much as disclosure of the identities
of intelligence sources. cA foreign government can-learn,
a-great-deal-about -thei.Agency's activities-byi-knowing-the,
177
159 Opinion of the Court
public-sources-of information-that interest the-Agency: The
inquiriespursued brthe Ag-ericy caftertell-our-adversar-
sies-something-that-is of value-to-them. See 228 U. S. App.
D. C., at 277, 709 F. 2d, at 103 (Bork, J., concurring in
part and dissenting in part). For example, disclosure of the
fact that the Agency subscribes to an obscure but publicly
available Eastern European technical journal could thwart
the Agency's efforts to exploit its value as a source of in-
telligence information. Similarly, had foreign governments
learned the Agency was using certain public journals and
ongoing open research projects in its MKULTRA research of
"brainwashing" and possible countermeasures, they might
have been able to infer both the general nature of the project
and the general scope that the Agency's inquiry was taking.2'
The "statutory mandate" of ?102(d)(3) is clear: Congress
gave the Director wide-ranging authority to "protec[t] intelli-
gence sources and methods from unauthorized disclosure."
Snepp v. United States, 444 U. S., at 509, n. 3. An intelli-
gence source provides, or is engaged to provide, information
the Agency needs to fulfill its statutory obligations. The
record establishes that the MKULTRA researchers did in
fact provide the Agency with information related to the
Agency's intelligence function. We therefore hold that the
Director was authorized to withhold the identities of these
researchers from disclosure under the FOIA.
IV
No. 83-1249
The cross-petition, No. 83-1249, calls for decision on
whether the District Court and the Court of Appeals cor-
2' In an affidavit, Director of Central Intelligence Turner stated that
"R]hroughout the course of the [MKULTRA] Project, CIA involvement or
association with the research was concealed in order to avoid stimulating
the interest of hostile countries in the same research areas." App. to Pet.
for Cert. in No. 83-1075, pp. 89a-90a.
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Opinion of the Court 471 U. S.
rectly ruled that the Director of Central Intelligence need
not disclose the institutional affiliations of the MKULTRA
researchers previously held to be "intelligence sources."
Our conclusion that the MKULTRA researchers are pro-
tected from disclosure under ?102(d)(3) renders unnecessary
any extended discussion of this discrete issue.
In exercising the authority granted by Congress in
?102(d)(3), the-Director-mustT-of-course,__do-more-than-sim-
ply -withhold-the names-of intelligence-sources. Such with-
holding, standing alone, does not carry out the mandate
CA Congress. Foreign intelligence services have an interest
in knowing what is being studied and researched by our
agencies dealing with national security and by whom it
is being done. Foreign intelligence services have both the
capacity to gather and analyze any information that is in the
public domain and the substantial expertise in deducing the
identities of intelligence sources from seemingly unimportant
details.
In this context, the-very -nature-of-the-intelligence-app-a-
ratus-of-any-country ivto-try- to -fincLout_the7coneer-n-s-:TI)
others;-bitsTarid pieces of-data "ma-y -gitl-in=piecingl-together
4bits of-other information-even-when-theindividualpiece is not
(of-obvious ir-nportance in-itself:" Halperin v. CIA, 203 U. S.
App. D. C. 110, 116, 629 F. 2d 144, 150 (1980). Thus,
" '[w]hat may-seem triviartvithe uninformed, may apear
oatimrnentiito one wh-Olhas a broad view-orthe
scene and may put-the questioned-item-of informatiWiri
its-pro-pef-C-ofiteTd." Halkin v. Helms, 194 U. S. App.
D. C. 82, 90, 598 F. 2d 1, 9 (1978), quoting United States
v. Marchetti, 466 F. 2d 1309, 1318 (CA4), cert. denied,
409 U. S. 1063 (1972).
Accordingly, (the-Director;in-exercisinwhig-anthority-under-
?102(d)(3);- has-imwer-to- withhold -superficially:innocuous,
informati-on-on-Abe-ground-that-it-imight-emble an-observerto -discover-theidentity-otanIntelligenee-souree. See, e. g.,
159 Opinion of the Court
179
Gardels v. CIA, 223 U. S. App. D. C. 88, 91-92, 689 F. 2d
1100, 1103-1104 (1982); Halperin v. CIA, supra, at 113, 629
F. 2d, at 147.
Here the Director concluded that disclosure of the institu-
tional affiliations of the MKULTRA researchers could lead to
identifying the researchers themselves and thus the disclo-
sure posed an unacceptable risk of revealing protected "intel-
ligence sources." z2 Th-e-decisions-of-the Directorvh-o-must
rof-course-b-e-famili ay-with' the-whole :picture"--as-judges -are
cnot-;-are-worthy4f-gre-at-deferenceTgiven-the: magnitude-of
;Ore-national-security-intere-st-s-and- p-citentig r=i-S-It -at_ stake.
4-is-conceivable-that-the-mere -explanation-of-why-inform?a=
(tion-must-be-withheld-can-convey-valuable-information-to-a
foreignintelligen-ce-agency.
The District Court, in a ruling affirmed by the Court of
Appeals, permitted the Director to withhold the institutional
affiliations of the researchers whose identities were exempt
from disclosure on the ground that disclosure of "the identi-
ties of the institutions . . . might lead to the indirect dis-
closure of" individual researchers. App. to Pet. for Cert.
in No. 83-1075, p. 27a. This conclusion is supported by
the record.23 The Director reasonably concluded that an ob-
22During the congressional inquiries into MKULTRA, then Director
of Central Intelligence Turner notified the 80 institutions at which
MKULTRA research had been conducted. Many of these institutions had
not previously been advised of their involvement; Director Turner notified
them as part of "a course of action [designed to] lead to the identification
of unwitting experimental subjects." Id., at 92a, n. 1. As a result of
inquiries into the MKULTRA progam, many of these institutions disclosed
their involvement to the public. Others advised the Agency that they had
no objection to public disclosure. Director Turner disclosed the names of
these institutions; he did not disclose the names of any institutions that
objected to disclosure. See n. 7, supra.
For example, an affidavit filed by an Agency operations officer famil-
iar with MKULTRA stated that disclosure of the institutions at which
MKULTRA research was performed would pose "a threat of damage to
existing intelligence-related arrangements with the institutions or expo-
sure of past relationships with the institutions." App. 27.
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184 MU/DLit 1 LKM, tu84 CIA v. SIMS 181
Opinion of the Court 471 U. S.
server who is knowledgeable about a particular intelligence
research project, like MKULTRA, could, upon learning that
research was performed at a certain institution, often deduce
the identities of the individual researchers who are protected
"intelligence sources." The FOIA does not require disclo-
sure under such circumstances.
Respondents contend that because the Agency has already
revealed the names of many of the institutions at which
MKULTRA research was performed, the Agency is some-
estopped from withholding the names of others. This
3uggestion overlooks the political-realities-of-intelligence
opentiong tin-whichTamong-otherthin-gr-Government
/maythoose-to-releas-elnf to-Tmation_d-eliberotelyto--%Thrid7Wiiie-s-
sage to_allies--or adyersartes'.24 Gongress--did-n-onnandate
t he-with-hoklin-rotinformation-that-m-ay-reveai-the-identityinf)
on-intelligence-source; it-made the Director of_Centralintelli-
gence-responsible-only-for-protectinvagaingtunautkorized
.diselosures7
The-nationol-interest-sometim-es7nrokesTitTadvisableTor
even-imperativeito-disclos-e-informationTthatyladttaW
identitr_orihrelligence-sources ?dit:is:the responsibility
of-the-Direct or_ofv7CeTitYallintelligen-ce, incit-that-ottlfeltrdic,
(clay, tp-weigh:the_variety_oficomplex_anclfactors-in
eletermining-whetherAls-closure-of-information-may-lead-to-an,
tinacceptable-rislcoficompromisingthe-*gemesliMligen-ce
igathering_procesg. Here Admiral Turner, as Director, de-
cided that the benefits of disclosing the identities of institu-
tions that had no objection to disclosure outweighed the costs
" Admiral Turner provided one well-known example of this phenomenon:
"IDluring the Cuban missile crisis, President Kennedy decided to release a
great deal of sensitive intelligence information concerning Soviet missile
installations in Cuba. It was clear, at that time, that the Soviets had to be
told publicly that the United States Government had precise information
on the extent of the Soviet threat in order to justify the strong coun-
termeasures then taken by our Government." App. to Pet. for Cert. in
No. 83-1075. p. 90a.
159 MARSHALL, J., concurring in result
of doing so. But Congress, in ?102(d)(3), entrusted this
discretionary authority to the Director, and the fact that
Admiral Turner made that determination in 1978 does not
bind his successors to make the same determination, in a dif-
ferent context, with respect to institutions requesting that
their identities not be disclosed. See, e. g., Salisbury v.
United States, 223 U. S.App. D. C. 243, 248, 690 F. 2d 966,
971 (1982).
V
We hold that the Director of Central Intelligence properly
invoked ?102(d)(3) of the National Security Act of 1947
to withhold disclosure of the identities of the individual
MKULTRA researchers as protected "intelligence sources."
We also hold that the FOIA does not require the Director to
disclose the institutional affiliations of the exempt research-
ers in light of the record which supports the Agency's deter-
mination that such disclosure would lead to an unacceptable
risk of disclosing the sources' identities.
Accordingly, we reverse that part of the judgment of the
Court of Appeals regarding the disclosure of the individual
researchers and affirm that part of the judgment pertaining
to disclosure of the researchers' institutional affiliations.
It is so ordered.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins,
concurring in the result.
To give meaning to the term "intelligence source" as it is
used in ?102(d)(3) of the National Security Act of 1947, the
Court today correctly concludes that the very narrow defini-
tion offered by the Court of Appeals is incorrect.' That the
' The Court of Appeals defined an "intelligence source" as "a person or
institution that provides, has provided, or has been engaged to provide the
CIA with information of a kind the Agency needs to perform its intelli-
gence function effectively, yet could not reasonably expect to obtain with-
out guaranteeing the confidentiality of those who provide it." 206 U. S.
App. D. C. 157, 166, 642 F. 2d 562, 571 (1980) (Sims /).
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