SCI SECRECY AGREEMENT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90M00005R000100100008-7
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 52
• Document Creation Date: December 27, 2016
• Document Release Date: May 2, 2013
• Sequence Number: 8
• Publication Date: April 1, 1988
• Content Type: MEMO

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" *
Most of the arguments we discussed are contained
in the attached filing. See especially pp 6-12,
?ec assi le in art- anitize
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4.
CERTIFICATE OF SERVICE
I hereby certify that, on this V/X-day of
1988, copies of the foregoing Motion To Dismiss and Defendants'
Memorandum Of Points And Authorities In Support Of Motion To
Dismiss, In Opposition To Motions For Preliminary Injunction, And
In Opposition To Motion For Summary Judgment were served by
messenger on:
H. Stephen Gordon, Esquire
Bruce Heppen, Esquire
Alice L. Bodley, Esquire
National Federation of Federal
Employeeg
1016 16th Street, N:W.
Suite 400
Washington, D.C. 20036
Mark Roth, Esquire
Staff Counsel
American Federation of
Government Employees, AFL-CIO
80 F Street, N.W.
Washington, D.C. 20001
Joseph B. Kennedy, Esquire
General Counsel
Government Accountability Project
25 E Street; N.W., Suite 700
Washington, DC. 20001
Patti A. Goldman
Public Citizen Litigation Group
Suite 700 -- - -
2000 P Street, N.W.
Washington, DC 20036
and by DHL, prepaid, on:
Stuart A. Kirsch, Esquire
Staff Counsel
American Federation of
Government Employees, AFL-CIO
510 Plaza Drive, Suite 2510
College Park, Georgia 30349
WI!. ROBERT IRVIN
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VLA IUUt/88
? IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL FEDERATION OF FEDERAL )
EMPLOYEES, )
)
Plaintiff, )
)
V. )- --Civil Action No.
) 87-2284-0G
UNITED STATES OF AMERICA, )
)
Defendants. )
)
AMERICAN: FEDERATION OF GOVERNMENT )
?
EMPLOYEES, AFL-CIO, st gl., )
)
Plaintiffs, )
)
-v. )
)
STEVEN GARFINKEL, Director, )
Information Security Oversight )
Office, gt Al., )
)
Defendants. )
)
Civil Action No.
67-2412-0G
AMERICAN FOREIGN SERVICE )
ASSOCIATION,
)
Plaintiffs, )
)
V. ) Civil Action No.
) 68-0440-0G
STEVEN GARFINXEL, Director, )
Information Security Oversight )?
Office, At Al., )
)
Defendants. )
)
rOTION TO DISMISS
Defendants hereby move, pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6), to dismiss this action for lack
of subject matter jurisdiction and for failure to state a claim
0
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upon which relief can be granted. In support of this motion,
defendants rely on the accompanying memorandum of points and
authorities.
4
Respectfully submitted,
JOHN R. BOLTON
Assistant Attorney General
JAY B. STEPHENS
United States Attorney
ne.0/
DAVID J. DERSON
VINCENT M. GARVEY .
WM. ROBERT IRVIN
Attorneys, Department of Justice
Civil Division, Room 3706
10th & Pennsylvania Ave., N.W.
Washington, D.C. 20530
Telephone: [phone]
Attorneys for Defendants.
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? ID
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL FEDERATION OF FEDERAL )
EMPLOYEES, )
)
Plaintiff, )
)
V. ) Civil Action No.
) 87-2284-0G
UNITED STATES OF AMERICA, )
)
Defendants. )
-
AMERICAN FEDERATION OF GOVERNMENT )
EMPLOYEES, AFL-CIO,
)
Plaintiffs, )
)
v. ) Civil Action No.
? ) 87-2412-0G
STEVEN GARFINEEL, Director, )
Information Security Oversight )
Office, St AL. )
)
Defendants. )
)
AMERICAN FOREIGN SERVICE )
ASSOCIATION, At Al., )
)
Plaintiffs, )
)
V. ) Civil Action No.
) 88-0440-0G
STEVEN GARFINKEL, Director, )
Information Security Oversight )
Offices At, Al.. )
)
Defendants. )
)
)
DEFENDANTS' MEMORANDUM -OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO DISMISS, IN OPPOSITION TO
MOTIONS FOR PRELIMINARY INJUNCTION, AND IN
OPPOSITION TO MOTION FOR SUMMARY JUDGMENT.
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PRELIMINARY STATEMENT
These consolidated suits seek to restrict the President's
exercise of his constitutional authority to protect national
security information. The suits challenge the use of secrecy
agreements to formally and enforceably obligate certain Executive
Branch employees in sensitive positions not to reveal national
security secrets. These secrecy agreements, the use of which was
generally upheld by the Supreme Court in Snenp v. United States,
444 U.S. 507 (1980), are embodied in Government Standard Form
("SF") 189, FOr4193, and the recently=published successor io .
Foi7 4193 known as Form 4345. SF 189, utilized'throughout the
-Government, protects classified information from disclosure.
Forms 4193 and 4355, utilized by the Central Intelligence Agency
and other Government intelligence agencies, deal with Sensitive
Compartmented Information ("SCI"), a particularly critical
subcategory of classified information. These types of secrecy
agreements have been called ?a reasonable means for protecting",
the "secrecy of information important to our national security
and the appearance of confidentiality essential to the effective
operation of our foreign intelligence service."' id. at 509 n.3.
By signing these forms, Executive Branch employees and
contractors whose jobs require access to classified information
promise not to disclose that information to those not authorized
to receive it.
These consolidated actions have a complicated procedural
history. Briefly, two of the suits, Fational Federation of
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Federal Employees v. United States1 et al. Civil Action No. 87-
2284-0G ("HEEE"), and American Federation of Government
Zmployees. et al. v. Garfinkel. et al., Civil Action No. 87-2284-
OG (HAFGE"), challenged the use, prior to December 22, 1987, of
SF 189 and Form 4193; in particular, the two suits challenged the
use in SF 189 and Form 4193 of the word ?classifiable." While
motions to dismiss in FM and AFGE were pending, on December 21,
1987, an appropriations measure, Section 630 of the Omnibus
Continuing Resolution for Fiscal Year 1988, Pub. L. 100-202,
purporting to cut off funds-for the implementation-and
enforcement,of certain aspects of these secrecy agreements during
Fiscal Year. 1988, became law:*
In response to Congressional concerns concerns expressed in
Section 630, the Executive Branch implemented certain interim
measures. Use of SF 189 was temporarily suspended, while the
effect of the legislation was assessed and possible revisions to
the form considered. At this time, revision of SF 189 is still
under consideration and its use continues to be suspended. Form
4193 was used for an-interim period following the enactment of
Section 630, although use of an addendum which stated that the
form would only be implemented and enforced in a manner
consistent with Section 630, was required. By taking these
steps, the Executive Branch chose to accommodate Congress'
concerns, at least temporarily, avoiding any immediate need to
address the question of whether Section 630 unconstitutionally
intrudes upon the President's constitutional powers.
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Subsequently, a third action, American Foreign Service
Association, et al. V. Garfinkel. et al., Civil Action No. 88-
0440-0G ("Ame), seeking to enforce the Ang plaintiffs'
interpretation of Section 630, was filed. Plaintiffs in rFFB and
AFG L have amended their complaints to seek the same relief sought
by the AFS? plaintiffs. The Court has consolidated all three
cases.
On March 18, 1988, Form 4193 was replaced by Form 4355.
Form 4355 eliminates the word "classifiable" from its provisions.
Form 4355 essentially,retains the restrictions ,.of Form 4193.
,As a consequence of the evolution of these cases, the Court
? no longer needs to address certain issues. Flrst, since further
implementation of SF 189 has been suspended, and plaintiffs have
not offered any evidence that enforcement of the disputed terms
in SF 189 is presently in process or contemplated against any
particular individual, the Court need not address claims relating
to the implementation or enforcement of SF 189 after the date the
Executive Branch suspended implementation of that form. Second;
since Form 4193 has been replaced by Form 4355 and, again,
plaintiffs have not offered any evidence of contemplated
enforcement of Form 4193 against any particular individual, the
Court need not address claims relating to the implementation or
enforcement of Form 4193 after March 18, 1988, the date on which
Form 4355 was adopted. Third, since the parties have all filed
dispositive motions, the Court need not address the motions for
a preliminary injunction.
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Nevertheless, the issues remaining before the Court are
numerous. First, the Court is faced with all of the issues
raised by defendants' original motions to dismiss in AFGE and
FFFZ. Second, the Court is faced with the issues regarding the
scope of Section 630 first raised by the AFS A plaintiffs, and
reiterated in the motions for preliminary injunction filed by the
VFFE and AFGE plaintiffs, as well as the motion for summary
judgment filed by all plaintiffs. Most importantly, the Court is
faced with the separation of powers issue first noted by
defendant in opposition to the FSA plaintiffs' motion fora
preliminary injunction. To facilitate the Court's resolution of
these issues, defendants now move to dismiss all of the
outstanding claims in the consolidated cases.
As demonstrated below, these actions should be dismissed
for lack of subject matter jurisdiction. All of the plaintiffs
lack standing. Claims regarding enforcement of any of the forms
are not ripe for review because there is no specific allegation
that enforcement actions against any particular individuals are
? occurring or contemplated. Alternatively, the actions can be
dismissed for failure to state a claim upon which relief can be
granted. The secrecy agreements at issue do not violate any
statute and are not unconstitutional. In any event, even if one
or more of the secrecy agreements was found to conflict with the
restrictions of Section 630, that provision cannot stand in the
way of the President's exercise of his constitutional powers.
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BACKGROUND
1. The Presidential Program For Protecting Classified
Information
Throughout the nation's history, the President has utilized
some degree of secrecy to carry out his responsibility to protect
the national security. Ags "Developments in the Law--The
National Security Interest and Civil Liberties," 85 Harv. L. Rev.
1130, 1192 (1972). Indeed, at the very outset of the Republic,
President Washington "relied on the need for secrecy in the
conduct of foreign affairs_" to justify his refusal to turn over
to -Congress documents regarding negotiation of the Jay Treaty.
Id. 'subsequant presidents have cited similar reasons for
maintaining the confidentiality of national security information
in the face of requests for information by Congress. Id. at
1212-13.*
. -
Executive Branch efforts to protect national security
information through classification have been in effect since
World War I. Department of Navy v. =An, U.S. , 108 S.Ct.
818, 824 (1988). Since the Truman Administration, Presidents
have exercised their Article II responsibility to protect
national security information through a series of Executive
Orders establishing formal classification systems. See
Exec. Order No. 10290, 3 C.F.R. 790 (1949-53 Comp.); Exec. Order
No. 10501, 3 C.F.R. 979 (1949-53 Comp.); Exec. Order No. 11652,
C.F.R. 154, (1972 Comp.); Exec. Order No. 12065, 3 C.F.R. 190
(1979 Comp.); Exec. Order No. 12356, 3 C.F.R. 166 (1982 Comp.).
In each instance, the President has relied primarily on his
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constitutional authority as the basis for these actions; the
President has not required or relied on any express statutory
authorization for establishing a classification system. Egg 85
Harv. L. Rev. at 1198.
In the most recent of the Executive Orders regarding
classification, Executive Order 12356, 47 Fed. Reg. 14874 (April
2, 1982), President Reagan revised the uniform system for
classifying declassifying, and safeguarding national security
information. Subsequently, in National Security Decision
Directive 84 ("NSDD 84") (Mar.. 11, 1983) (attached as Defendants'
Exhibit 1 to Defendants' Memorandum Of Points And Authorities In
Opposition To Motion ,For Preliminary Injunction in 7a.SA
,
("Defendants' PI Opposition Memorandum")), the President directed
a series of measures designed to further safeguard against
unlawful disclosure of classified information. Pursuant to NSDD
84, each Executive Branch agency that originates or handles
classified information must require the signing of a
nondisclosure agreement as a condition of access to such
information. Id.,. ?1a. NSDD 84 also directed that the Director
of the Information Security Oversight Office (NISO0s) establish a
standard nondisclosure agreement for application throughout the
Executive Branch. Id., ? lc.
On September 9, 1983, ISO?, the administrative component of
the General Services Administration that has responsibility for
prescribing standard forms to implement the information security
program authorized by Executive Order 12356, see id.,
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fi 5.2(b)(7), issued a regulation adopting SF 189 as the standard
nondisclosure agreement that an individual must execute prior to
receiving access to classified information. That form contains
an agreement not to disclose classified information and defines
'classified" information as "information that is either
classified or classifiable under the standards of Executive Order
12356 or under any other Executive Order or statute that
prohibits the unauthorized disclosure of information in the
interest of national security.' SF 189, 1 1 (attached as
_
Defendants': Exhibit 2 to Defendants --PI Opposition Memorandum
A
In response to inquiries ?from memberi of Congress' and
others, ISOO has, on several occasions, clarified the meaning of
the term "classifiable" as used in SF 189. Most recently, on
December 21, 19871. ISO? defined 'classifiable information" as:
(a) Unmarked classified information,
including oral communications; and (b)
unclassified information that meets the
standards for classification and is in the
process of a classification determination.
"Classifiable information" does not refer to
currently unclassified information that may
be subject,to possible classification at some
future date, but is not currently in the
process of a classification determination.
Therefore, the only circumstances under which
a party to SF 189 might violate its terms by
1 The use of these classified information nondisclosure
agreements, and their particular provisions, has been a source of
continuing dispute between the Executive Branch and some members
of Congress. pee, e.g., Hearing Before Subcommittee on Human
Resources of the House Committee on Post Office and Civil
Service (October 15, 1987); Review of the President's National
?ecuritv Decision Directive 84 and the Proposed Department of
Defense Directive on Polygraph Use, Hearing Before a Subcommittee
of the House Committee on Government Operations, 98th Cong., 1st
Sess. (1983); H.R. Rep. No. 98-578, 98th Cong., 1st Sess. (1983).
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disclosing unclassified information are when
a party knows, or reasonably should know,
that such information is in the process of a
classification determination . . . .
52 Fed. Reg. 48367 (December 21, 1987).
In 1981, the Director of Central Intelligence ("DCI")
promulgated Form 4193, concerning access to SCI. In-1983, the
President directed in NSDD 84 that all persons with access to SCI
sign a non-disclosure agreement containing a pre-publication
review requirement covering SCI and other classified information,
and instructed the Director of ISOO to develop? standardized
-form for such .a purpose'. -NSDD 841 1 lb 4 c. However, on
'
'February. 17, 1984, the President directed the continuation of a
'-temporary moratorium on the use of the revised' andbroader SCI
non-disclosure--form that ISO? had developed, in consultation with
the DCI, pursuant to paragraph lb of NSDD 84. Instead, the
President instructed agencies to utilize Form 4193 orother
authorized non-disclosure forms for SCI that were in effect on or
before March 1, 1983. 221 Memorandum Re: Implementation Of NSDD
84 (February 17, 1984) (attached as Defendants' Exhibit 3 to
Defendants' PI Opposition Memorandum).
Unlike the SF 189, which concerns non-compartmented
classified information, Form 4193 applied only to SCI, a specific
category of very sensitive classified information relating to
intelligence sources and methods. Because of its sensitivity,
SCI is 'compartmented' and access to it is strictly controlled
in specific channels to restrict dissemination to only those
individuals with a need for the particular information. This
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compartmented information is some of the most sensitive that the
Intelligence Community handles, and a compromise of this informa-
tion would have a serious effect on the national security of the
United States. Declaration of William H. Webster, Director of
Central Intelligence, 1 4 (March 1, 1988) (attached as
Defendants' Exhibit 4 to Defendants' PI Opposition Memorandum).
The DCI has the broadest of discretion in ensuring the
confidentiality of SCI. Section 102(d)(3) of the National
Security Act 1947, 50 U.S.C. ? 403(d)(3), provides that the DCI
"shall be responsible for protecting intelligence sources..apd?.
methods from unauthorized disclosure.". See also Executive Order
. 12333, ? 1.5(h), 3 C.F.R. p. 200 (1981 Compilation); Executive
Order 12356, ? 4.2(a), 3 C.F.R. p. 166 (1982 Compilation), 47
Fed. Reg. 14874. 'The legislative history of
? 102(d)(3) . . makes clear that Congress intended to give the
Director of Central Intelligence broad power to protect the
secrecy and integrity of the intelligence process. The reasons
are too obvious to call for enlarged discussion; without such
protections the Agendy would be virtually impotent.D2 CIA v.
$ims, 471 U.S. 159, 170 (1985);. also also r.lepp, 444 U.S. at 509
n.3. Executive Order 12356 continues the specific presidential
authorization provided by Executive Order 12065, 3 C.F.R. p. 190
(1978 Compilation) for the DCI to establish a special access
2 The President's power to protect sources and methods of
information flows from his Article II powers, not simply from
legislation enacted by Congress. =. United States v. Curtiss-
Wright Export Corp., 299 U.S. 304, 320 (1936).
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program for the protection of intelligence sources and methods.
In keeping with this responsibility, the DCI has established the
SCI security system.
Pursuant to his responsibility for protecting information
concerning intelligence sources and methods, the DCI has long
required that those with access to such information formally
agree not to disclose it without authorization and submit any
material relating to such activities for pre-publication
clearance. pee Snepp, 444 U.S. at 507-08. The DCI promulgated
Form-14193(ettached as Defendants' Exhibit 5 td-Defendafitg' PI
Opposition Memorandum) in 1981. The form defines SCI to incluae
'classifiable' as well as classified intelligence information,
and contains an agreement not to divulge SCI to unauthorized
persons. zd., 1, 3. In addition the form requires the
submission for security review of all information intended for
disclosure to unauthorized persons that 'contain(s) or purport[s]
to_contain any SCI or description of activities that produce or
relate to SCI or that [the signatory has] reason to believe are
derived from SCI. Id.,? 4.
On March 18, 1988, Form 4193 was replaced by Form 4355. See
Declaration of Lt. General Edward J. Heinz, Director Of the
Intelligence Community Staff for the Director of Central
Intelligence ('Heinz Declaration'), i 3 (filed with the Court on
March 25, 1988). Form 4355 eliminates use of the word
'classifiable' in the definition of SCI. Heinz Declaration,
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????
.?.
Exhibit A. Agencies dealing with SCI have been notified of the
change. Heinz Declaration, 1 3.
2. Previous Litigation
On August 17, 1987, the National Federation of Federal
Employees, a federal employee labor union, filed an action before
this Court seeking a declaratory judgment that SF 189 violates
the First and Fifth Amendments to the Constitution and an order
enjoining the Executive Branch from using SF 189 and any other
form that prohibits the disclosure of "classifiable"
information. The, Government has filed and, the plaintiff has
opposed, a motion to dismiss the plaintiffs' action; that motion
is-pending before this Court. On December 2, 1987, the Court in
the FFFE action granted the motion by Senators Grassley, Pryor,
and Proxmire and Representatives Brooks, Boxer, Schroeder, and
Sikorski (all plaintiffs in hFSP) to file a brief amici curiae in
support of the union.
On September. 1, 1987, the American Federation of Government
Employees, another federal employee labor union, filed suit
challenging the use Of SF 189 and Form 4193. Defendants moved to
dismiss that action as well, which plaintiffs have opposed.
3. The Continuing Resolution And Executive Branch Reaction
In late December, 1987, just before Congress adjourned, an
appropriations rider was attached to the Omnibus Continuing
Resolution For Fiscal Year 1988, Pub. L. 100-202, purporting to
cut off funds to implement and enforce certain provisions of SF
189 and Form 4193. Section 630 of Pub. L. 100-202 provides:
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No funds appropriated in this resolution
or any other Act for fiscal year 1988 may be
used to implement or enforce the agreements
in Standard Forms 189 and 4193 of the
Government or any other nondisclosure policy,
form or agreement if such policy, form or
agreement:
(1) concerns information other than
that specifically marked as classified; or,
unmarked but known by the employee to be
classified; or, unclassified but known by the
employee to be in the process of a
classification determination;
(2) contains the term "classifiable";
(3) directly or indirectly obstructs,
by requirement of prior written
authorization, limitation of authorized
disclosure, or otherwise, the rights of any
? individual to petitiOn or communicate with.
Members. of Congress in a secure manner as
provided by the rules and procedures of the
Congress;
(4) interferes withthe right of the
'Congress to obtain executive branch
information in a secure manner as provided by
the rules and procedures of the Congress;
? (5) imposes any obligations or invokes
any remedies inconsistent with statutory law.
Provided, That nothing in this section
shall affect the enforcement of those aspects
of such nondisclosure policy, form or
agreement that do not fall within subsections
(1)-(5) of this section.
Section 6301 Pub. L. 100-202. This provision was attached to the
Continuing Resolution without any hearings and was one paragraph
of the-.i000-plus page Continuing Resolution signed by the
President.
Following the enactment of Section 6301 the Executive Branch
took certain measures to accommodate the concerns expressed by
Congress while continuing to carry-out the President's
constitutional duty to protect national security information.
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Shortly after the enactment of Section 630, Steven
Garfinkel, Director of ISO?, temporarily suspended further
implementation of SF 189, pending receipt of an opinion from the
Attorney General on the legal impact of Section 630 on SF 189.
Affidavit of Steven Garfinkel ("Garfinke). Affidavit"), ? 2
(February 8, 1988), attached as Plaintiffs' Exhibit 7 to the
Motion For Preliminary Injunction in ?FSA. Garfinkel also
notified agencies usirt SF 189 to notify affected employees that
an SF 189 executed after December 22, 1987 will be treated as
voidable at the employee's-request Garfinkel Affidavit 1 3.
Also in response to ?Section 630, Lt. General Heinz 'directed
that, during Fiscal Year 1988 Form 4193 and any other
nondisclosure forms for the protection of SCI were only to be
used when accompanied by a special addendum which stated:
The obligations imposed by this
Agreement shall be implemented and enforced
in a manner consistent with the section
entitled "Employee Disclosure Agreements'
contained in P.L. 100-202, Continuing
Appropriations for Fiscal Year 1988, 22
December 1987, and other applicable law.
Declaration of Lt. General Edward J. Heinz, t 4 (February 9,,
1988), attached as Plaintiffs' Exhibit 6 to -Plaintiffs' Motion
For Preliminary Injunction in Ana. As discussed-above, Form
4193 has now been replaced by Form 4355.
4. The AFSA Suit
On February 19, 1988, the Anh suit, seeking declaratory and
injunctive relief, was filed. In addition, the AFSA plaintiffs
moved for a preliminary injunction against continued use of Form
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4193, declaring forms executed after December 22, 1987 void, and
requiring defendants to notify signers of the provisions of
Section 630. On March 16 and 17, 1988, plaintiffs in AFG and
liFFE amended their complaint to allege the same violations of
Section 630 asserted in AFSA. On March 18,_both_union plaintiffs
moved for preliminary injunctive relief similar to that sought by
the AFSA plaintiffs. Also on March 18, 1988, plaintiffs in all
three suits moved for summary judgment on their claims alleging
violations of Section 630.
r. ?
, ? r
? '
ARGUMENT
I,. THE COURT LACKS SUBJECT MATTER JURISDICTION -BECAUSE THE
PLAINTIFFS LACK STANDING
The AFSA, AFGE, and VFFE actions must all be dismissed
because none of the plaintiffs has alleged sufficient injury to
state a justiciable claim, as requiredby Article III of the
"Constitution.- Article III confines the federal courts to
adjudicating actual 'cases" and 'controversies." A plaintiff
must allege at 'an irreducible minimum" a personal "injury-in-
fact" that is fairly _traceable to the defendant's allegedly
unlawful conduct and that is likely to be redressed by the
requested relief. Valley Force Christian College v. Americans
United For Church and State. Inc., 454 U.S. 464,. 472 (1962). The
injury alleged must be "immediate," "distinct and palpable,"
Werth v. Peldin, 422 U.S. 490, 501 (1975); Rizzo V. Goode, 423
U.S. 362 (1972), not "abstract," "conjectural," "hypothetical,"
or "speculative," City of Los Anaeles v. Lyons, 461 U.S. 95, 102
(1983); O'Shea 'v. Littleton, 414 U.S. 488, 494 (1974).
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AFSA cannot satisfy even the first prong of the Washington
Apple standing test. AFSA's members would not have standing to
pursue this action in their own right because they have suffered
no injury in fact. The only injury alleged on behalf of AFSA's
members is that defendants' actions "chill employees'
constitutional and statutory rights to free speech and to
petition Congress . . . ." Plaintiffs have cited no cases to
support their putative standin7 on such speculative grounds. ? In
United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375
(D:F."-Cir 1984), however, the court, following Laird v.iTttum,
408 U.S. 1 (1972), held that allegations of a "chilling effect"
on plaintiffs' exercise of _constitutional rights are insufficient
to satisfy the requirement for standing of a concrete injury in
fact. United Presbyterian Church, 738 F.2d at 1378-80. Since
use of SF 189 has been temporarily suspended, Form 4193 was
accompanied by an addendum which limited its implementation and
enforcement in a manner consistent with Section 630 and other
applicable law, and Form 435.5 does not cover "classifiable"
information, there ii no factual basis for AFSA's claim of a
chill. Accordingly, AFSAii members would not have standing in
their own right and, therefore, AFSA does not have standing.
Indeed, there is no basis for AFSA or anyone else to
challenge the Executive's interpretation of Section 630. That
provision is an appropriationi measure, not new or general
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legislation.3 It creates no substantive rights and confers no
right of action or standing on anyone. By its terms, the
provision simply purports to limit the funds the Executive can
spend for a particular purpose. Allegations that a spending
limitation has been exceeded are for resolution between Congress
and-the--President. In this context, AFSA's allegations of injury
are no different from those rejected as a basis for standing in
Public Citizen, Inc. v. Simon, 539 F.2d 211 (D.C. Cir. 1976) and
Farrington V. Schlesinger, 528 F.2d 455 (4th Cir. 1975).
In public Citizen, Inc. Simon, plaintiffs sought to
-
recover to the treasury the salaries of White House staff members
who Were involved in the 1972 presidential reelection effort
Plaintiffs alleged that the payment of those salaries Rwas in
derogation of constitutional and.statutory.strictures.ff IA.,
212. The court rejected plaintiffs' claim of taxpayer standing:
[T]he fair implication of appellants'
position is to recognize taxpayer standing to
attack any executive action that draws on an
outstanding appropriation on the ground that
the purchases or services are not in accord
with the congressional intent in passing the
appropriation. This would place the
? judiciary in the role of government overseer
of the Executive Branch. Such oversight is a
function of Congress. Taxpayer standing here
would bring into play the separation of
powers concerns pervading Frothingham( V.
Nellon, 262 U.S. 447 (1923)], [United States
v. ]Richardson[1418 U.S. 166 (1974)] and
3 Congressional rules prohibit proposing new or general
legislation in-amendments to appropriations bills. See Senate
Rule XVI; House Rule XXI; see also, Kaiser, Congressional Action
To Overturn Agency Rules: Alternatives To The Legislative Veto,
32 Admin. L. Rev. 667, 688 (1980).
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? 5ch1esinger[ V. Reservists Committee to Stop
the War, 418 U.S. 208 (1974)].?
Public Citizen. Inc. v. giP211, 539 F.2d at 217.
Similarly, in Harrington v. Schlesinger, plaintiffs alleged
that the Executive Branch was violating a law prohibiting
expenditures to support combat activities by American forces in
Indochina. The court rejected plaintiffs/ claim of taxpayer
standing, holding that the case presented no constitutional
challenge to an appropriation, but merely a challenge to the
Executive's interpretation of the statutory spending limitation.
-,?
528- F. 2d at 457-56;-- the court concludedthat the proper.
remedy for such a controversy was in Congress, not the courts.
?
id., 459.
Precisely the same type of_challenge_is at issue in this
case. Like the plaintiffs in Public Citizen. Inc. v. Simon and
Harrington v. Schlesinger, who were challenging the Executive
Branch's interpretation of appropriations measures, plaintiffs
in the present case are challenging the Executive Branch's
interpretation of the spending limitation set forth in Section
630. While plaintiffs have avoided labeling their action as a
taxpayer suit which would place their suit on all fours with
Public Citizen and 5chlesinger, nonetheless, their claims present
the same separation of powers concerns which led those courts to
conclude that they were without jurisdiction. This court should
reach the same conclusion.
Like AFSA, NFFE has not even met the first prong of the
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Washington Apple test because NFFE's members would have no
standing to pursue this action in their own right. id.
NFFE alleges that unspecified members were required to sign SF
189 over their objections, and that those who have refused to
sign the form have "subjected themselves to the potential loss of
security clearance and/or employment." See Second Amended
Complaint for Declaratory and Injunctive Relief, 116. This
unsupported statement, which does not identify a single such
employee or incident, does not satisfy NFFE's burden of pleading
and proving the elements of standing-.4 See Steele .17.i-rational:
? ?. .
Firearms Act Branch, 755 F.2d 1410, 1414 (11th Cir.- 1985). Nor
does NFFE. identify any employee who wishes to disclose.
inforMition that might be covered by the form. Compare rcGehee
Casey, 718 F.2d 1137 (D.C. Cir. 1983) (plaintiff intended to
publish manuscript). Finally, for the same reasons AFGE has
failed to meet the standing requirement because it has not
? alleged any injury that would allow its members to sue in their
own right.5 id.
4 Even if NFFE had identified specific employees who are?
threatened with loss of their security clearances, such
allegations would be insufficient to confer standing. As the
Supreme Court recently stated in Department of Navy v. gan,
supra, "It should be obvious that no one has a 'right' to a
security clearance." 108 S.Ct. at 824. Certainly, then, the
mere threat of losing a security clearance does not amount to a
cognizable injury-in-fact. gl. rarrington v. gush, 553 F.2d at
204 (threat of future injury lessens concreteness of injury).
5 In addition to plaintiffs' lack of standing, the claims
of the plaintiffs in all three cases directed at continued use of
SF 189 and Form 4193 are moot. A case is moot "when the issues
presented are no longer 'live' or the parties lack a legally
(continued...)
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B. The Individual Employee Plaintiffs Do Not Have
tandina
None of the three individual plaintiffs in the AFGE action
have alleged a concrete injury-in-fact. Plaintiff Louis Brase is
the only plaintiff who has signed or been asked to sign the Form
4193 or any agency version of that form.6 In fact, plaintiff
Brase signed Form DD 1847-1, a Department of Defense version of
the Form 4193. Brase, however, does not allege any definite,
concrete injury as a result of his having signed the agreement.
In part;icular, he does not alloge any intent to make a disclosure
?
in contravention to the commitments that he made in signing the
5(...continued)
cognizable interest in the outcome." Murphy v. Hunt, 455 U.S.
478, 481 (1982); Powell V. McCormacX, 395 U.S. 486, 496 (1969).
'Corrective action by an agency is one type of subsequent
development that can moot a previously justiciable issue."
Matural Resolirces Defense Council. Inc.v. U.S. Nuclear
Regulatorv Commission, 680 F.2d 810,814 (D.C. Cir. 1982). In
these cases, the plaintiffs' complaints about SF 189 and Form
4193 have become moot because the Government has imposed a
moratorium on the use of SF 189 for FY 1988 and has replaced Form
4193 with Form 4355, which does not use the term "classifiable."
Moreover, plaintiffs' claims regarding enforcement of these
secrecy agreements are not ripe for adjudication. Egs. puke Power
Cas. v. Carolina Environmental Study Group. Inc., 438 U.S. 59, 81-
92 (1978); Abbott Laboratories v. Gardner, 387 U.S. 136, 149
(1967). The plaintiffs have not cited a single instance where the
Government is enforcing or planning to enforce any of the
security forms, even to the extent of revoking any employee's
security clearance, and the Government is not requiring anyone to
sign SF 189 or SF 4193. Thus, the challenged administrative
action is not "sufficiently direct and immediate' as to render
such action "appropriate for judicial review at this stage."
Abbott Laboratories, 387 U.S. at 152.
6 The union plaintiff does not even allege that any of
its members are subject to the form, much less have any
objections to it. Furthermore, since implementation of SF 189
has been suspended, neither Brase nor anyone else is being
required to sign SF 189.
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form. Compare NcGehee v. Casey, 718 F.2d 1137. Thus, Brase has
no standing to challenge the Form 4193 because signing it has
caused him no injury.7
The other individual plaintiffs, Messrs. Stinchcomb and
Douglas, have also failed to allege a concrete injury. Mr.
Stinchcomb complains that he has refused to sign SF 189 and has
been threatened with "security clearance revocation and
resulting loss of employment if he does not sign the form."
Second Amended Complaint, 14. Mr. Douglas alleges that he signed
.,SF .189 only as a ?result of,."threat of rev tin of his security
? clearance and resulting loss of-his employment with the federal
government." Ig1.1.15. Neither Douglas nor'Stitchcomb allege any ...
impending action to either revoke their security clearances or to
terminate their employment. In short, like Brase, and like the
unnamed members of NFFE, Douglas and Stinchcomb allege nothing
more than fear of the loss of their security clearances--to which
they have absolutely no legal right. =DI. 108 S.Ct. at 824.
7 That is true regardless of the fact that the Air Force
temporarily suspended Brase's access to SCI and to the SCI
facility, where he worked. Deg Second Amended Complaint, 1 6.
Brase, like all other individuals, has no right to a security
clearance or access to SCI, so that suspension of his access to
SCI caused him no injury. =An, 108 S.Ct. at 824. Moreover,
there is no present or impending future controversy between Brase
and the defendants in regard to the security forms. The Air
Force suspended Brase's access because his refusal to sign the SF
189 initially created uncertainty as to his willingness to abide
by the terms of the SCI non-disclosure agreement, which he bad
signed. Atter careful consideration of the facts, the Air Force
decided to restore Brase's access to SCI. Dee Memorandum In
Support Of Defendants' Motion For A Stay in rFFE and IkFGE,
Exhibit A.
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C. The Congresslonal Plaiptiffs Do Not Have Stapding
It is well-settled that:
[t]here are no special standards for
determining Congressional standing
questions. Although the interests and
injuries which legislators assert are surely
different from those put forth by other
litigants, the technique for analyzing the
interests is the same.
garrington V. Bush, 553 F.2d 190, 204 (D.C. Cir. 1977) (emphasis
deleted). Thus, as-with any other plaintiff, to have standing,
the seven members of Congress bringing this action must
demonstrate a concrete injury in. fat.' -Thiy have failed:to'do
SO.
The injury asserted by the congressional plaintiffsr:that
defendants' actions 'impede the congressional plaintiffs' ability
to obtain important information from federal employees, which
they need to carry out their duties,' does not amount to a
concrete injury in fact. As the court explained in Goldwater v.
Carter, 617 F.2d 697 (D.C. Cir. 1979) fign iudament vacated
san other grounds, 444 U.S. 996 (1979):
In our decisions on congressional
standing this court has carefully drawn a
distinction between (1) a diminution in
congressional influence resulting from an
Executive action that nullifies a specific
congressional vote or opportunity to vote, in
an objectively verifiable manner -- which we
have found constitutes injury in fact; and
(2) a diminution in a legislator's
effectiveness, subjectively judged by him or
her, resulting from Executive action
withholding information or failing to obey a
statute enacted through the legislator's
vote, where the plaintiff-legislator still
has power to act through the legislative
process to remedy the alleged abuses --
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which situations we do not find injury in
/act.
Id., 617 F.2d at 702 (emphasis added, footnotes omitted). In the
present case, the Complaint alleges that the Executive's failure
to obey Section 630 has diminished the congressional plaintiffs'
effectiveness as legislators by impairing their ability to
obtain information from federal employees. Thus, the
congressional plaintiffs' claimed injury in the present case
falls squarely within the second category enunciated in
Goldwater and, consequently,Idoes not constitute an injury in
_
fict.8 Ege also Hariington v. Bush, 553 F.2d at 212-13 (claim
that lack of information abkrinished congressional plaintiff's
effectiveness as legislator -insufficient to confer Standing).
The congressional plaintiffs have asserted nothing more than
a mere generalized grievance of a type that has been rejected
repeatedly by the courts as a basis for 'standing. See, e.g.,
United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d
1375, 1381-82 (Congressman s challenge to Executive Order on
grounds it violated congressionally-imposed limitations thus
diminishing his powers as legislator constituted a generalized
grievance about the conduct of government); American Federation
of Government Employees v. pierce, 697 F.2d 303, 305 (D.C. Cir.
8 Indeed, the asserted injury to the congressional
plaintiffs rests wholly on the-'chilling effect" alleged by AFSA
on behalf of its members. Certainly, if an allegation of a
chilling effect is insufficient to confer standing on the federal
employee plaintiffs, mg United Presbyterian Church, 738 F.2d at
1378-80, it is insufficient to confer standing on the
congressional plaintiffs.
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1982) (Congressman's interest in proper execution of laws
insufficient to confer standing); Barrington v. Bush, 553 F.2d
190, 213-14 (Congressman's complaint about the execution of a law
was generalized grievance insufficient to confer standing);
Farrington v. chlesincter, 528 F.2d 455, 459 (members of
Congress lacked standing for suit alleging that Executive was
violating spending prohibitions enacted by Congress). To the
extent that the congressional plaintiffs have a complaint
regarding the Executive's interpretation of Section 630, any
possible remedy lies with their'relfow legislators, not this
Court. 14...; pee,also-Foore v. United States House of
Representatives, 733 F.2d 946, 956 (D.C. Cir. 1984), cert.
denied, 469 U.S. 1106 (1985).
II. PLAINTIFFS HAVE FAILED TO STATE A CLAIM UPON WHICH RELIEF
CAN BE GRANTED
Even if the Court had subject matter jurisdiction, these
suits should be dismissed for failure to state a claim upon which
relief can be granted. As demonstrated below, plaintiffs' claims
regarding events before and after December 22, 1987 are without
merit.9
9 Plaintiffs' motion for summary judgment should also be
denied because, as shown above, plaintiffs lack standing and, as
shown below, plaintiffs have failed to state a claim upon which
relief can be granted. Accordingly, plaintiffs are not entitled
tojudgment as a matter of law.
In addition, since the parties have all filed diapositive
motions, the Court need not address the motions for a preliminary
injunction.
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Plaintiffs in PFFE and AFG E have alleged that SF 189 and
Form 4193, as used prior to December 22, 1987, violated various
statutory and constitutional restrictions. Although use of SF
189 was suspended by the Director of ISO?, and Form 4193 was
ultimately modified by the special addendum, the defendants
contend that SF 189 and Form 4193 without the addendum remain
effective as to those employees who have already signed them.
The use of those forms, however, represented an appropriate and
constitutionally permissible exercise by the President of his
conetitutional-Authority:-to control acceig 'to national security -
information.
All of the plaintiffs have alleged. that actions by the
Executive Branch in the wake of the enactment of Section 630
violate that appropriations measure. As demonstrated below,
however, the Executive Branch has accommodated Congress' concerns
while continuing to carry out the President's constitutional
responsibility to protect national security information: If,
however, the Court concludes that these actions conflict with
Section 630, the Executive Branch's actions must nevertheless be
upheld, because Section 630 cannot displace the President's
constitutional power over national security information.
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A. The Challenged Secrecy Agreements Are An Appropriate And
Constitutionally Permissible Means Of Safeguarding National
Security Information
1. Non-Disclosure Agreements Are An Appropriate And
Constitutionally Permissible Means Of Safeguarding
rational Security Information
The courts have recognized that non-disclosure or 'secrecy"
agreements between the government and its employees are an
appropriate and constitutionally permissible means of protecting
national security information. In the seminal case of Snepp v.
United States, 444 U.S. 507 (1980) (Rem curiam), the Supreme
court upheld an agreement by Frank Snepp, a former'emproyee of
the Central. Intelligence Agency ("CIA"), ,not to divulge
classified information without, authorization and notl to publish
Any information relating to the agency without prepublication
clearance."
The Supreme Court disposed of Snepp's objections to enforce-.
ment of the agreement in a footnote, rejecting his claim that the
agreement was "unenforceable as a prior restraint on protected
speech." 11. at 507 n.3. Instead, the Supreme Court agreed
with the court of appeals that the agreement was an "entirely
appropriate' exercise of the DCI 'S statutory mandate to
Iprotec[t] intelligence sources and methods from unauthorized
disclosure.'" Id. (quoting United States v. pnepp, 595 F. 2d
926, 932 (4th Cir. 1979)). In fact, the Court added that its
"cases make clear that -- even the absence of an express
10 SF 189 does not contain a prepublication clearance
requirement.
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agreement -- the CIA could have acted to protect substantial
government interests by imposing reasonable restrictions on
employee activities that in other contexts might be protected by
the First Amendment." Id. The Supreme Court concluded that
"[t]he Government has a compelling interest in protecting .
the secrecy of information important to our national
security . . . . The agreement that Snepp signed is a,reasonable
means for protecting this vital interest."
Following Snepp, the court of appeals for this circuit
s,=upheld the CIA's "classification and censorship scheme" for
prepublication review of a.manuscript written by a'former CIA
employee. McGehee v; Casey, 718 F.2d 1137. 'McGehee had signed
? an agreement when he joined the CIA barring him from revealing
classified information without prior CIA approval. When the CIA
refused to approve disclosure of portions of a manuscript that he
wrote, McGehee challenged the agency's prepublication review
scheme on First Amendment grounds. The court of appeals rejected
that challenge, finding that the CIA's scheme "protect[ed]
critical national interests" and that the classification criteria
used "speciflied] the nature of the information subject to
censorship with sufficient particularity to satisfy the
11 Even prior to Vnepp, the Fourth Circuit had upheld an
injunction enforcing a CIA secrecy agreement prohibiting
unauthorized disclosure of classified information. United States
v. Marchetti, 466 F.2d 1309 (4th Cir.), cert. denied, 409 U.S.
1063 (1972).
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applicable constitutional tests for First Amendment restraints on
former CIA employees." Id. at 1139.12
2. The Use Of The Term "Classifiable" In SF 189 And Form
4193 Is Reasonable And Consistent With Executive Order
12156
Plaintiffs' objections to the use of the term "classifiable"
in SF 189 and Form 4193 are unfounded and based on a
misunderstanding of the meaning and import of that term.13 The
term by definition "does not include any information that is not
otherwise required by statute or Executive order to be protected
unauthorized,..disclosure in the ihterest of national ."
security.". 52 Fed. Reg. 29793 (August 11, 1987).14 In fact, the
term is limited to two very narrow categories of information:
(1) unmarked classified information; and (2) information that
meets the standards for classification and is actually in the
process of a classification determination. 52 Fed. Reg. 48367.
12 Federal employees have no First Amendment right of
access to such national security information. In fact, a[a]s a.
general_rule,,citizens have no First Amendment right of access to
traditionally nonpublic government information." McGehee, 718
F.2d at 1147.
13 Although use of SF 189 has been temporarily suspended
and Form 4193 has been replaced by Form 4355, which does not use
the term "classifiable," the Court is still faced with
plaintiffs' challenges to forms using that term. In the case of
SF 189, plaintiffs continue to challenge the implementation and
enforcement of those forms before December 22, 1987. In the case
of Form 4193, plaintiffs may continue to challenge the use of
those forms before March 18, 1988, the date on which Form 4355
was approved.
14 Thus, the use of the term "classifiable" does not
prevent the disclosure of information not already protected from
unauthorized disclosure. It, therefore, has no effect whatsoever
on protections afforded 'whistleblowers" or on disclosure of
information to Congress. figft 5 U.S.C. ?? 2302 (b) (8), 7211.
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Moreover, an employee is subject to liability under SF 189 only
for negligent or willful violations. Ig.
Thus, the first category of "classifiable" information is
merely classified information that lacks markings identifying it
as such. An example would be an employee's notes that contain
classified information discussed in a briefing. Although the
notes lack classification markings, the employee knows the
information is classified. Surely, plaintiffs have no objection
to an agreement restraining the disclosure of classified
information.-
The second category of ,"classifiable" information consists
of information that meets all the requirements for Classification
and that is in the process of a classification determination.
For example, a scientist employed by an intelligence agency may
develop a new intelligence application of technology and refer it
to a classification authority for a classification determination.
During the classification _process, the scientist knows to
safeguard the information although it is not yet classified.
This minimal restriction on the unauthorized disclosure of
unclassified information in no way exceeds the obligations
already imposed on employees by Executive Order 12356. Under
that Order, y[i]f there is reasonable doubt about the need to
classify information it shall be safeguarded as if it were
classified pending a determination by an original classification
authority . . Exec. Order 12356 ? 1.1(c). In addition,
when an employee "of an agency that does not have original
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classification authority originates information believed by that
person to require classification," that information must be
protected as if it were classified pending a classification
determination. Id. s 1.29e0.
Thus, plaintiffs' concerns about the use of the term
"classifiable" are unfounded. There is no need for employees to
speculate as to what should have been or might be classified in
the future, nor must they make classification determinations, as
plaintiffs allege. Certainly, the term "classifiable does not
include any, information not already 'protected by Executives Oider.
from unauthorized-disclosure formational security reasons. In
fact, the term pertains only to a limited portion of such'
information. Moreover, plaintiff's fear that agencies might
retroactively classify information in order to punish employees
who have disclosed it is without basis.15 .
15 Nor does a restriction on disclosure of "classifiable'
information conflict with the statutory protection for
"whistleblowers" contained in 5 U.S.C. ? 2302(b)(8). That
statute prohibits adverse actions by federal agencies against
employees who publicly disclose certain information, but only "if
such disclosure is not specifically prohibited by law and if such
information is not specifically required by Executive order to be
kept secret in the interest of national defense or the conduct of
foreign affairs." Id. ? 2302(b)(8)(A). As discussed above,
Executive Order 12356 restricts the disclosure of classified and
"classifiable" information. Thus, SF 189 and Form 4193 only
prohibit public disclosure of information "specifically required
by Executive order to be kept secret." Such a restriction, of
course, does not preclude public disclosures permitted by the
"whistleblower" statute.
Similarly, the use of the term "classifiable" does not
interfere with the right of federal employees under 5 U.S.C. ?
7211 to petition or furnish information to Congress. In fact, it
has no effect whatsoever on that right. SF 189 and Form 4.193
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3. The Use Of The Term "Classifiable" Does Not Violate The
First Amendment
The use of the term "classifiable" in SF 189 and Form 4193
does not abridge the Constitution. "Secrecy agreements," of
course, may preclude the disclosure of classified information
without violating the First?Amendment. Z.g., Pnepp, 444 U.S. at
507; rcGehee, 718 F.2d 1137. Indeed, in Snem the Supreme Court
upheld an agreement prohibiting disclosure of any unclassified
information concerning the CIA or intelligence activities
generally without prepublication review.
As far as the limitation concerning information in the
process of a classification determination is concerned, courts
have long recognized much broader limitations on the disclosure
of national security information. The concept that those
entrusted with national secrets should safeguard such information
-- even if it is not formally classified -- is not only
reasonable, it is essential to any responsible program of
protecting critical national security information. Well before
the advent of Executive Orders on the subject of classification,
the Supreme Court acknowledged the compelling nature of this
proposition. III Totten v. United States, 92 U.S. 105, 106
(1876); Bliss Co. v. United States, 248 U.S. 37, 45 (1918); Lem
also United States v. Reynolds, 345 U.S. 1, 7-8 (1953).
15(...continued)
only restrict the unauthorized disclosure of "classified" or
"classifiable" information. To the extent that Executive Order
12356 or other laws or executive orders permit the disclosure of
such information to Congress, SF 189 and Form 4193 would also
permit it.
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Certainly, the government's compelling interest in
safeguarding national security information outweighs the concern
that an employee might be deterred from disclosing information
not requiring national security protection for fear that it might
be"classifiable." Of course, an employee in such a situation
has an obvious recourse -- simply ascertaining whether the
information at issue is classified or in the process of a
classification determination.16 Moreover, an employee is only
liable under SF 189 for willful or negligent violations.
Furthermore, the employees subjedt-to,thelbrms routine* de-al
iwith classified information and, thus, can be expected to be
familiar with what type of information must be protected.
Therefore, the limitations imposed by SF 189 and Form 4193
on the disclosure of information are minimal and do not infringe
the First Amendment. Moreoverr, because SF 189 and Form 4193
pertain to information that is otherwise protected by law from
unauthorized disclosure, any "chill" on the right of signatories
to release information not implicating national security
interests would exist even in the absence of the agreement.
*Therefore, the limitations imposed by SF 189 and Form 4193 on the
disclosure of information are minimal and do not infringe the
First Amendment.
16 As the court of appeals noted in KcGehee, the oppor-
tunity to ascertain beforehand "whether intended publications
contain classified material engenders less of a chilling effect
on free speech" and 'reduces any disfavored chilling effect."
718 F.2d at 1145, 1147.
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? 5. Plaintiffs' Remaining Claims Regarding Use Of SF 189
And Form 4193 Prior To The Enactment Of Section 630 Are
Without Merit
In addition to the principal constitutional and statutory
challenges the hFGE plaintiffs have asserted numerous other
challenges to the use of SF 189 and Form 4193. These claims have
no merit.
The term "classifiable" is not unconstitutionally vague. As
discussed previously, "classifiable" information is narrowly
defined as unmarked classified information or information meeting
the standards for classification and in the liTpcess
classification determination. There is little room tor
misunderstanding this definition. And, the fact that SF 189
provides sanctions only for willful or negligent violations and
imposes only civil or administrative penalties lessens the
. degree of precision required of the term at issue, as does the
employee's opportunity to easily ascertain beforehand whether his
or her conduct would violate the agreement. Furthermore, on .
numerous occasions, the courts have upheld against claims of
vagueness the far moke general definitions of information
protected from disclosure for national security reasons under
criminal statutes. $ee, e.g., =in v. United States, 312 U.S.
19, 26-28 (1941) (information "connected with the national
defense"); United States v. Doyce, 594 F.2d at 1252 n.2
("information relating to the national defense"); United States
V. Dedeyan, 584 F.2d 36, 39 (4th Cir. 1978) (same); United
$tates v. Norison, 604 F. Supp. at 658-60 (same).
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- Plaintiffs also object to the restriction in both SF 189 and
Form 4193 against 'indirect" disclosure of classified
information. 'Indirect' disclosure of classified information
merely refers to a situation 'in which the knowing, willful or
negligent action of _a party to the agreement results in the
unauthorized disclosure of classified information even though the
party to the agreement does not directly communicate, deliver or
transmit classified information to a person who is not authorized
to receive it.' 52 Fed. Reg. 28802 (Aug. 3, 1987). For example,
?
?
an employee who furnishes classified infbkmatioh to a co-worker
' authorized to?receive it, but knows that the'co-worker intends to
furnish it to pauthorized persons, ha i indirectly disclosed such
information without authorization. Thus, the restriction on
'indirect" unauthorized disclosures is merely a means to
.forestall obvious attempts to evade non-disclosure obligations.
The term is precise, easily understandable, and certainly meets
the constitutional standards necessary-for such a requirement to
avoid being void for vagueness.
Plaintiffs also-object, on equal protection grounds, to the
fact that employees of federal contractors requiring access to
classified information must sign the SF 189-A, which does not
contain the term 'classifiable,' rather than the SF 189. AFGE
Second Amended Complaint, 1 34. This claim verges on the
frivolous. 'Treating different categories Of people differently
does not per Al violate equal protection. The government
violates equal protection only if it invidiously discriminates or
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treats those similarly situated differently without a rational
?
basis. Hagens V. Lavine, 415 U.S. 528, 539 (1974). In fact,
?[n]ormally a classification will not be set aside if any set of
facts rationally justifying it is demonstrated to or perceived by
the courts." United States v. Harvland Savings-Share Insurance
Corp., 400 U.S. 4, 6 (1970) (per curiam). Furthermore, the
government may address a problem "one step at a time" and apply a
- remedy selectively. gefferson V. Hackney, 406 U.S. 535, 546
(1972).17
.?,In this case, it is nc4;unreasonable for the.government-to
require more,ofits own employees .than it does of those working,
for contractors. And, the government is entitled to address the
problem of unauthorized disclosure of protected information "one
step at a time." Moreover, contractors do not have original
classification authority and generally will have possession of
national security information only after the government has
already classified it. III Exec. Order 12356, f 1.2.
Accordingly, plaintiffs' equal protection claim must fail.
Plaintiffs' contention that the restriction in SF 189 and
?Form 4193 on the disclosure of ?classifiable? information is
inconsistent with the Freedom of Information Act ("FOIA), 5
U.S.C. f 552(b)(1), is also meritless. That provision
authorizes the withholding of information properly classified
17 Plaintiffs, of course, cannot claim that federal
employees are a suspect class deserving special protection under
the Constitution. If anything, the contrary is true. See e.g.,
plepp, 444 U.S. at 510.
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pursuant to Executive order. Executive Order 12356 specifically
provides that 'information may be classified or reclassified
after an agency receives a request for it under" FOIA. Id. ?
1.6(d) (emphasis added). See, e.g., Miller V. Department of
State, 779 F.2d 1378 (8th Cir. 1985). An agency receiving a FOIA
request for 'classifiable" information, therefore, could complete
its classification process prior to determining whether to
release the information. Thus, there is no conflict between the
requirement to protect "classifiable" information and the FOIA.
.-Plaintiffs also complain that the pepvisioniin'sF 189 and
Form 4193 assigning to the government all financial interests
that might result from disclosures in violation of the agreements
contravenes the Copyright Clause of the Constitution, Art. I,
? 8, Cl. 8. Congress has precluded government employees from
asserting a copyright claim based on government information. 28
U.S.C. ? 1498. A disclosure in violation of SF 189 or Form 4193
would involve the disclosure of government information. And, of
course, the Supreme Court in Snepp approved the imposition of a
constructive trust in favor of the government on the profits
resulting from a publication in violation of a non-disclosure
agreement. /14., 444 U.S. at 514-16.
B. The Executive Branch's Actions Have Been Consistent With
Section 630
As outlined above, the-Executive Branch adopted certain
interim measures in response to the enactment of Section 630 to
accommodate Congress/ concerns while continuing to carry out the
President's constitutional duty to protect national security
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information. All of those actions have been consistent with the
requirements of Section 630. Accordingly, plaintiffs' claims
alleging violations of Section 630 should be dismissed.
1. Suspension Of SF 189
In response to Section 630, Steven Garfinkel, Director, of
the ISO? suspended further implementation of SF 189, and
notified agencies using SF 189 to notify affected employees that
an SF 189 executed after December 22, 1987 will be treated as
voidable at the employee's request. Garfinkel Affidavit, 1 3.
Nevertheless?, plaintiffs seek to faice--defendants to declaret
-SF 189 executed after December 22,,1987. void and to notify.
employees that such agreements are void. Section 630 does not
require either action, however. Accordingly, plaintiffs' claims
should be dismissed.
2. Use Of Form 4193 With An Addendum
Also in response to Section 630, Lt. General Heinz directed
that, during Fiscal Year 1988 Form 4193 and any other
nondisclosure forms for the protection of SCI were only to be
used when accompanied by a special addendum which stated that the
form would only ?be implemented and enforced in a manner
consistent with" Section 630. Declaration of Lt. General Edward
J. Heinz, 1 4 (February 9, 1988), attached as Plaintiffs' Exhibit
6 to Plaintiffs' Motion For Preliminary Injunction in AFSA.
Thus, under the plain language of the addendum, any provisions of
Form 4193 that are inconsistent with the restrictions of Section
630 (e.g., the phrase "classifiable") are a nullity.
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Accordingly, with this addendum, Form 4193 was transformed into a
nondisclosure form which satisfies Congress' concerns expressed
in Section 630.
Plaintiffs have relied heavily on a floor statement of
Congressman Brooks, one of the plaintiffs in this suit, to
support their contention that implementation of Form 4193, even
with the addendum, was prohibited. Before a court looks to the
legislative history, of course, it should first examine the plain
language of the statute. United Mine Workers of America V.
Federal'Mine Safety and Real t teview:Commission, 67_1'P2d-615,
621 (D.C. Cir. 1982). The plain language'of Section 630 only
addresses the implementation.of nondisclosure forms that fall
within the five categories enunciated in subsections one through
five. With the addendum, however, Form 4193 no longer fell
'within those categories.
Moreover, even if it were necessary for the Court to examine
the legislative history, the floor statement .of a lone member of
Congress is not entitled to decisive weight 622-23. As
the Supreme Court held in Chevron. USA, Inc. v. natural
nesources Defense Council. Inc., 467 U.S. 837 (1984):
[i]f the statute is silent or ambiguous with
respect to the specific issue, the question
for the court is whether the agency'S answer
is based on a permissible construction of the
statute.
g. at 842-43; gm also NLRB v. United Food & Com']. Workers
Union, U.S. , 108 S.Ct. 413, 421, 426 (1987); Cablevision Svs.
rev. v. notion Picture Ass'll, 836 F.2d 599, 607 n.12 (D.C. Cir.
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1988). Thus, if the statute at issue is ambiguous, the
administrative agency's interpretration of the statute is
entitled to substantial deference from a reviewing Court. Udall
v. Tallman, 380 U.S. 1, 16 (1965). So long as the agency's
interpretation is reasonable, it should be upheld,-even though
the agency's construction might not be the only one possible or
even the construction the reviewing court would have made. IA.;
leg also Bayside Enterprises. Inc. V. FLRB, 429 U.S. 298, 304
(1977). .In this case, the Executive Branch has responded
-'.Se'ction.-630 in a way that-accommodates congressional concerns
while continuing to carry out the President's constitutional duty
to protect national security information. This balancing of
Interests is reasonable and should be upheld.
Finally, Congressman Brooks spoke of "standard forms 189 and
4193 and any other similar contracts or policies" and suggested
that, 'No one will be required to sign these contracts in the
coming fiscal year. ? - 133 Cong. Rec. H11999 (daily ed. Dec. 21,
1987) (emphasis added). ,As has already been demonstrated, no one
is being required t&-sign Form 4193 as objected to by Congress;
rather, the requirement was that Form 4193 be signed as amended
by the addendum responsive to the legislation. Furthermore, with
the adoption of Form 43551. no one will be required to sign Form
4193 in the future in any form. Accordingly, plaintiffs' claims
that use of Form 4193 with the addendum violates Section 630
should be dismissed.
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3. /or= 4355
On March 18, 1988, Form 4193 was replaced by Form 4355.
Heinz Declaration, i 3. Since Form 4355 eliminates the word
"classifiable," it is not inconsistent with subsections one and
two of Section 630. In addition, as with the other forms at
issue in this case, Form 4355 is not inconsistent with the
statutory protection for "whistleblowers" contained in 5 U.S.C.
? 2302(b)(8) or the right of federal employees under 5 u.s.c. ?
7211 to petition or furnish information to Congress. See note
- .
15, supra.--?Accordingly, Form 4355 eado comports with subiection6".
three through five of Section 630.
' ? ?
C. Should This Court Conclude The Executive's Actions Are
Inconsistent With Section 6301 Serious Questions Of The
Constitutional Separation Of Powers Would Be Implemented
Courts generally should be reluctant to reach a constitu-
tional question where there are alternative grounds for decision
as there are in this case. F.L.R.B. v. Catholic Bishop of
Chicago, 440 U.S. 490, 504-07 (1979); Crowell v. 21D.E2D, 285
U.S. 22, 66 (1932). Moreover, where national security is
involved, as it is in this case, a statute should not be
interpreted so as to defeat the Executive's responsibilities.
Curran V. laird, 420 F.2d 122, 133 (D.C. Cir. 1969) (An )panc).
By finding the Executive Branch's actions to be consistent with
Section 630, the Court need not reach the lurking issue of the
legislation's constitutionality. If, however, the Court
concludes that the Executive Branch's actions do not comport with
Section 630, those actions are nevertheless valid because that
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legislation represents an unconstitutional intrusion by Congress
on the President's constitutional authority over national
security information.
The protection of national security information falls within
the powers committed to the _President by the Constitution:
The President, after all, is the
"Commander in Chief of the Army and Navy of
the United States." U.S. Const., Art. II,
? 2. His authority to classify and control
access to information bearing on national
security and to determine whether an
individual is sufficiently trustworthy to
occupy a position in the Executive Branch
.that will give that person access to such
information news primarily from this
constitutional investment of power in the
President and exists quite apart from any
explicit congressional grant.
Department of Navy v. plan, 108 S.Ct. at 824.
The Supreme Court explained the basis for the President's
constitutional authority over national security information in
United States v. Curtiss-Wright Export Corp., 299 U.S. 304:
[The President], not Congress, has the better
opportunity of knowing the conditions which
prevail in foreign countries, and especially
is this true in time of war. He has his
confidential sources of information. He has
his agents in the form of diplomatic,
consular and other officials. Secrecy in
respect of information gathered by them may
be highly necessary, and the premature
disclosure of it productive of harmful
results.
Id ?
299 U.S. at 320. As Justice Stewart recognized in
Times Co, v. United States, 403 U.S. 713:
The responsibility [for protecting classified
information] must be where the power is. If
the Constitution gives the Executive a large
degree of unshared power in the conduct of
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foreign affairs and the maintenance of our
national defense, then under the Constitution
the Executive must have the largely unshared
duty to determine and preserve the degree of
internal security necessary to exercise that
power successfully. It is an awesome
responsibility, requiring judgment and wisdom
of a high order.
id., 403 U.S. at 728-29.
Since the Truman Administration, Presidents have exercised
this constitutional authority through the issuance of Executive
Orders *controlling access to natioAal security information. See
Exec. Order No. 10290, 3 C.F.R. 790 (1949-53 Comp.); Exec. Order _
No. 10501,-3 C.F.R. 979 (1949-53 Comp.); Exec. Order No. 11652,
C.F.R. 154 (1972 Comp.); Exec. Order No. 12065, 3 C.F.R. 190
(1979 Comp.); Exec. Order No. 12356, 3 C.F.R. 166 (1982 Coup.).
In_so_doing, the Presidents have relied primarily on their
constitutional authority. gee, e.g., Exec. Order 10290 ("by
virtue of the authority vested in me by the Constitution and
statutes, and as President of the United States"); Exec. Order
12356 ("by the authority vested in me as President by the
Constitution andlaws of the United States"). There has never
been a specific act of Congress relied upon as a basis for the
Executive Orders governing national security information. gee 85
Nary. L. Rev. 1130, 1198; 2f. United States v. Curtiss-Wright
Zxvort Corp., 299 U.S. at 319-20 (President's authority over
foreign affairs does not require as a basis an act of Congress).
Nor are we aware of any specific budgetary appropriation from
Congress for this ongoing presidential security program. It is
also worth noting that these Executive Orders essentially
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regulate information generated in the Executive Branch and apply
primarily to Executive Branch employees who assist the President
in carrying out his foreign relations and national security
functions under the Constitution.
None of this suggests that Congress is totally without
power to legislate in the area of national security.
Nevertheless, drawing lines between the political branches on
? this subject is difficult at best, Keg United States v.
A.T. & T., 551 F.2d 384, (D.C. Cir. 1976), and the courts have
.-gone out of their way'to;:aVoid-*Aking hard and fast
pronouncements. Cf. Goldwater, 617-F.2d at 704. The present
controversy does not ca1 for a judicial exegesis on the extent
to which Congress may, as an original matter, legislate the
regulation and control of disclosure of national security
information. The key to this case is the fact that the
underlying security program has been authorized by a series of
Presidents pursuant to their Article 11 powers, not specific -
legislation. .Congress, in enacting Section 630, did not purport
to exercise any of its independent foreign affairs powers.18 To
18 Section 630 purports to be a budgetary provision, but
Congress cannot accomplish by an appropriations measure what
would be unconstitutional if enacted as substantive laws. Egg
United States v. Lovett, 328 U.S. 303 (1946); Henkin, Foreign
Affairs and the ConstitutIon, at 113 (1972) ("Even when Congress
is free not to appropriate, it ought not be able to regulate
Presidential action by conditions on the appropriation of funds
to carry it out, if it could not regulate the action directly.').
Moreover, implementation of NSDD 84 was never the subject of a
specific appropriation by Congress, presumably because
expenditures for that specific purpose were as pinimus. See
Henkin at 115 ("Congress cannot impose conditions which invade
(continued...)
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the contrary, the congressional action was unambiguously styled
as a direct challenge to the President's exercise of his
constitutional authority. Whatever Congress' more general powers
may be to deal with the disclosure of classified information,
generated within the Executive Branch by the President's Article
II subordinates -- and those powers may well be quite limited --
surely legislation which directly undermines another branch's
legitimate exercise of its constitutional authority crosses the
line.19
,
The Executive Order and Directives are based on presidential
findings of what specific controls on-disclosure were'tholight'
necessary to protect national security, and are the product of a
process of ventilation and review within the expert military,
foreign policy, and intelligence agencies of the Executive
Branch. Congress in Section 630 did not disagree with these
longstanding presidential judgments; it did not even purport to
amine the issues in traditional legislative fashion. In fact,
18( .continued)
Presidential prerogatives to which the spending is at most
incidental . . . .? That Section 630 merely masquerades as a
spending limitation seems clear from the self-evident fact that
changing all the forms to comply with it would be manifestly more
expensive than maintaining the status guo ante.
19 Even assuming some overlapping constitutional authority
on this question, as a practical matter Congress would typically
set a policy and leave it to the President to execute the minute
details, especially when the-President undeniably has his own
national security powers. Choosing the appropriate words
necessary to convey meaning to a distinct group of employees,
with specialized knowledge and expertise, who are subordinate to
the President, is obviously a task for the President. It is hard
to imagine a context in which congressional micromanagement is
less appropriate than the present one.
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while certainly not dispositive standing alone, the circumstances
under which Section 630 was passed speaks volumes about the
respective interests of the branches here. Neither House held
hearings on this provision. /t was, at the 11th hour, literally
slipped into a continuing resolution of over 1000 pages, which
had to be signed by the President on the eve of the 1987
Christmas recess to keep the government operating. What little
legislative history there is to Section 630, and its lack of
relationship to the rest of the Continuing Resolution, strongly
, ,suggest that very few members of Congress, other. than the
plaintiffs in AFSA who sponsored it, were even aware of the
provision, let alone understood what it was designed to do. A
holding that Congress, in so facile and offhanded a manner, can
effectively undercut an evolution of 40 years of Presidential
Executive Orders and national security directives promulgated
pursuant to Article II is clearly not called for here.
To the extent the congressional plaintiffs claim a right to
unimpeded access to classified or even "classifiable" information
from Executive Branch 'whistleblowers,' a related constitutional
doctrine comes into play. Since the time of Washington, congress
has recognized the President's authority to control access to
national security information. Curtiss-Wright, 299 U.S. at 320
(President Washington's refusal to comply with a congressional
request for documents relating to foreign affairs was "a refusal
the wisdom of which was recognized by the House itself and has
never since been doubted.'). This doctrine of executive
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privilege for national security information is well recognized in
modern cases, pee United States v. Vixon, 418 U.S. 6831 710
(1974); United States V. Reynolds, 345 U.S. 1 (1953), and applies
vis-a-vis the Congress. United States v. AT&T, 567 F..2d 121/ 129
(D.C. Cir. 1977) .20
The Executive Orders and NSDD 84 are, in part/ delegations
by the President to certain high level subordinates to control
access to and disclosure of classified information. The secrecy
agreements embodied in the forms at issue are mechanisms by which
?
. ?
the Presidents power to assert exbcttive privilege can be ,
carried out. Questions regarding disclosure of national Security
information to Congress can be pushed up to the appropriate level
20 In AT&T, pupra, the defendant was in possession of
certain national security documents that had been subpoenaed by a
House committee. The United States sued to prevent AT&T from
complying, citing potential damage to the government's
intelligence interests. The court 'allowed the suit to proceed,
noting that the Executive Branch should be no worse off than if
it controlled the documents itself:
? If the request letters were only in the
hands of the Justice Department, it could
have refused to comply with the legislative
demand, citing senate Select Committee. The
fact that the request letters are available
from AT&T as well as from the Justice
Department does not make the legislative
authority unreviewable in court/ for AT&T
could have refused to comply and insisted on
an ultimate court decision to avoid prosecu-
tion. The fact that the Executive is not in
a position to assert its claim of
constitutional right by refusing to comply
with a subpoena does not bar the challenge so
long as members of the Subcommittee are not,
themselves, made defendants in a suit to
enjoin implementation of the subpoena.
Id. at 129 (footnote and citations omitted).
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within the Executive Branch, even to the President himself. The
notion, however, that any employee in the national security
establishment is equipped to decide what can safely be disclosed
has been rejected by the courts, See 5nepp, 444 U.S. at 507-10,
and.bespeaks a lack of discipline that is inimical to any
responsible program of protection of classified information.
; gee also ims, 471 U.S. at 170. With its subpoena authority
and political powers, the Congress is hardly helpless in dealing
with the President. But it cannot undermine the President's
.:44liti,to prevent disclosures of classified information 'by his
own .Executive, Branch employees by legislatively immunizing them
from unauthorized end runs. Congress has legitimate tools to
obtain the information it needs. Section 630 is not one of them.
Because Section 630 is directly targeted at an exercise of
Presidential authority under Article II, embodying an Executive
judgment that specific controls on classified information are
needed in the interest of national security, and because Congress
has not even purported to establish its own competing scheme
governing such inforliation, compelling the Executive to comply
with that statute, beyond the actions they Executive has already
taken to meet congressional concerns, would violate the
constitutional separation of powers.
CONCLUSION
For the foregoing reasons, the Court should grant --
defendants' motion to dismiss, deny plaintiffs' motion for
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?
summary judgment, and deny plaintiffs' motions for preliminary
injunctive relief.
Respectfully submitted,
JOHN R. BOLTON
Assistant Attorney General
JAY B. STEPHENS
United States Attorney
Awljoi/2. 44/14/L-- itLe2=
DAVID J. AN,DERSON
v -
VINCENT M. GARVEY
y
WI!. ROBERT IRVIN
Attorneys, Department of Justice
Civil Division, Room 3706
10th & Pennsylvania Ave., N.W.
Washington, D.C. 20530
Telephone: [phone]
Attorneys for Defendants.
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Declassified in Part - Sanitized Copy Approved for Release 2013/05/02 : CIA-RDP90M00005R000100100008-7