DOCUMENTATION OF THE SUPREME COURT DECISION, SYLLABUS, CENTRAL INTELLIGENCE AGENCY ET AL VS. SIMS ET AL

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87B00028R000100170001-7
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 38
• Document Creation Date: December 22, 2016
• Document Release Date: March 15, 2011
• Sequence Number: 1
• Publication Date: July 23, 1985
• Content Type: MEMO

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UMX-US-ii. U4/1
DIRECTOR OF CENTRAL INTELLIGENCE
Committee on Imagery Requirements and Exploitation
Washington, DC 20505
23 July 1985
MEMORANDUM FOR THE RECORD
SUBJECT: Documentation of the Supreme Court Decision, Syllabus,
Central Intelligence Agency et al vs. Sims et al
The attached Supreme Court decision was made available to COMIREX
Members during the 5 June 1985 COMIREX Meeting.
STAT
Executive Secretary
Attachment: a/s
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STAT
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SUPREME COURT OF THE UNITED STATES
Syllabus
CENTRAL INTELLIGENCE AGENCY ET Al- U
SI IS ET AL ?
CERTIORARI TO TEE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA DISTRICT
No. 83-1075. Argued December 4.1964-Dedded Apt 16, 1966'
Between 1963 and 1966. the Central Intelipena Agency (CIA) financed a
raeartA project, node-named IOCULTRA, that wan acb5ahed to eoaa-
ter Soviet and Cmaeae adeaaaes in bramwaahmg and mucropatson teeh-
a3goea. Subprojeetn ware amsraetod out to various asive:atia, rF
search baadabom and sbmly iesdt~tiaos. b 1977. respondence m
No. 0-1075 (haeafter respoe death) dad a requm with the CIA wider
the !sedum of Information Act (FOLD. aeddne utter alia the names
of the haft dm said individuals who bad performed the rnearch under
XKULTRA. Chin E:eatpom S of the FOIA-which provides that an
agency aced no diselaae omtatse:s that are ... sped aDy wmpcad
nom dose by statute ... provided that saes statute ... refers to
particular types of matter, to be witb1. . -4e CIA dechmed to daelae
the requested informatim '!he CIA invoked. as the eumptmg statute
referred to In Exemption 3. 1102(dXS) at the National Security Act of
W. which states that the Director of Central InteIli enoe shaD be
rtspooaue for proteeos6 iate3ligence storm and methods ram waat-
thorized diadonae. Respondents then lied air under the FOIA in
Federal District Coat Applying, in directed by the Coat of Appeals
as an sugar appeal, a deddtioo of 'ms memm source ar sneaa>n<
only these sources to which the CIA bad to guarantee eoeddendality In
order to obtain the iafoemaaok the District Court held that the ldmti-
ties of researdurs who had received express guarantees of confidential-
ity need not be disc]osed. and also e.nempted nom disdosu:e other
reswcbers on the ground that their work for the CIA, apart bom
'Together with No. 83-1249. Siena it at. v Cent d InUU*%rA Agency
of at.. also an certiorari to the same meant.
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CIA at SINS
Sy0abes
YKULTRA. rpnlred that their idantitiss remain wort The eourt
Airther bald that there was no wed to dbclae the mtiwtiooal amli-
adoos 0( 6@ Ind vidual researchers whose Identities were sz pt from
dLdosws. The Comm of Appeals affirmed this latter bolding, but
revaraad the District Court's ruling with respect to whieb iipdividual
researchers aatiskd 'the need-foreorddeatiality. aspect of its formula-
don of oaempt'iaulligenee exams." The Coat of Appeals held that it
was errs automssmny to exempt from disdoewe those researches to
whom coddentiality had been promised. and that an indhidual Qwl li '
r an Zeaafigenee eowcs exempt from disdosw'e under the FOIL only
when the CU offers mal ent prof that it needs to protect its efforts in
confidentiality in order to obtain the type of information provided by the
N.
NOW
L Section =03) qualisa as a withholding statute ender Exemp-
tion 3. Section 102(dX3) dearly refers to ' particular types at matters"
within the meaaia[ of Exemption 3. Moreover. the FOU'a legislative
history eociizms that Congress intended 1102(dX3) to be a widibDiffing
stawte ends that Exemption. Aid the plain meaning of 1102(d)(8Ys
language, as well as the National Security Ages legislative history, iadl-
t hea Congress vested In the Duvator of Cosatrol Information at bmd
authority to Protect sources iate>ligenoe
was. To narrow this authority by limiting the desnition at "nteiligena
sources" to sr to which the CIA had to guarantee consdendalit7 in
order to Obtain the information, not only contravenes Congress' express
intention but also overlooks the pi+l necessities of modern InteIIi-
VULTBA r 'sarchen are protected 'Wtamgence source within
110ei!(d) 1a broad meaning. besase they Provided. or were engaged to
provide. iatoemation that the CIA needed to Arlin its stat'tar7 oblige
dons with r:speec to &ff sign iatel ems. To form the CIA to d i&"e a
hoe's whenever a court determines. After the act, that the CIA could
have obisinad the load of information supplied without peoemaiiat coo-
bdeatia6t7. could have a devastating impact on the CIA's ab3ty to carry
out its atatutor7 mission. The record establishes that the YSULTRA
researchers did in hict provide the CIA with information related to its
mtefigmee Anchor, and the dare the Director was authorized to
withhold these researches' ideasities from disclosure wider the FOIL.
13-14
& Tba FOIL does not require the Director to disclose the petit utioeal
a?isti ns of the exempt reearrhaa. This conclusion a supported by
the record. The Director reaaaoably concluded that an observer who is
howtedgesble shout a particular Intelligence research project, sorb as
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CIA a SDIS m
SYDOW
XULTRA. eouid. upon Is%rs g that :>te rwareh vu psrforaid at s
aR,aia iesdwdm deduce the idsadtM iM prWAcwd I"vidual
rd,as. Pp. 18-n-
. U. S. App. D. C. -. O9 F. td 16. amrmed in psTi sae retr.rs.d a
Psrt-
Berscu. C. J.. delivered tl+e op[ruon e< tbi Court. is v WiQrs.
BLAC Ut4. Powcu.. RZ,Qua t. smcrs. LW acONxoL 13.. joiaed.
MAR31As,,, J.. led an opinion coanirrmg m the re.ult. is sbdt Bttst+?
t1AN. J.. joined.
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SUPREME COURT OF THE UNITED STATES
Noe. 83-1073 am 03-lit!
CENTRAL INTELLIGENCE AGENCY, tr AL.,
PETITIONERS
83-1025 U
JOHN CARY SIMS AND SIDNEY M. WOLFE
JOHN CARY SIMS AND SIDNEY M. WOLFE,
PETITIONERS
83-1249 U
CENTRAL INTELLIGENCE AGENCY AND WILLIAM
J. CASEY. DIRECTOR, CENTRAL
INTELLIGENCE AGENCY
ON WRITS OF CCBTIORASI TO TM UNTTED SrAT= COURT OF
APPEALS FOR THE DISTRICT OF COLUM3IA C==
tAWA 16, HM
CHIEF JUSTICE BURGER delivered the opinion of the
Coax.
In No. 83-1075, we granted certiorari to decide whether
1102(dX3) of the National Security Act of 1947, as incorpo-
rated in Exemption 3 of the Freedom of Information Act, ex-
empts from disclowre only those sources of intelligence in-
formation to which the Central Intelligence Agency had to
guarantee confidentiality in order to obtain the information.
In No. 83-1249, the cross-petition, we granted certiorari to
decide whether the Freedom of Information Act requires the
Agency to disclose the institutional sffilistions
of persons whose identities are exempt from discloeure as
Intelligence sources."
Between 1953 and 1966, the Central Intelligence Agency
financed a wide-ranging project, code-named MBULTRA,
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03-1o?s ! 83-12e9--OPINION
_ CIA a SUMS
concerned with "the research and development of ebemical,
biological, and radiological materials capable of employment
in clandestine operations to control human behavior."' The
program consisted of some 149 subprojects which the Agency
contracted out to various Universities, research (oundations,
and simi]ar institutions. At least 80 institutions and 185 pri-
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 XKULTRA surfaced
publicly during the 1970's and became the subject of execu-
tive and congressional investigations.'
* Y %d Report at the Select Committee to Study Government Operadons
with Respect to Intelligence Activities, S. Rap. No. 94-755. Book I, p. 389
(1976) (footnote omitted) (Final Report). KBULTRA began with a pro-
five Richard Helms, then the Agency's Assistant Deputy Director
for Plans. Helms outlined a spedal funding mecbaaism for highly sensi-
tive Agency research sad development projeaA that would seedy the we
at eioiogical and chemical materials in attarthg human behavior.
UULTRA was &pgved by AD= Dulles, then the Direetar of Cesnsl
IaaD'igmee. on April 13, 1l63.
'Seal M$ULTBA subpovjeeta involved experiments where m
searches surreptitiously administered dangerous drop, cud as LSD. to
mwiittiotg human subjects. At least two persons died as a result of
1[SULTRA experiment, and others may have suffered impaired health
beaae of the testing. See Id., at 392-403. This type of experimentation
i now eipresaly forbidden by wcutive order. Tim Order No. 12333.
52.10 3 CFB 213 (1982).
'See generfy Final Report, at 385-422, 471-472; Report to the Presi-
dent by the C samnsion on CIA Activities Within the United Stave
Z %_M (June 1175), Project MIULTRA, the CIA's Program of Research
ittee
is Behavioral Modi5ea1 Joint Hearings before the Select Comm an -
? e sad the Subcommittee an Health and Soentise Research of -
the Senate Committee on Human Resowom. 96th ngSbIM it
before the
Homan Drug Testing by the CIA, 19?t: Hesriags
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83-10% t p_124$- OPINION
CIA a SILLS -8
On August 22. IM. John C. Sins, an attorney, and Sidney
X. Wolfe, M. D., the director of the Public Citizen Health
Research Group,' . Sled a request with the Central In-
telligence Agency seeking certain information about
MKULTRA. Respondents invoked the Freedom of In-
formation Act (FOIA), 5 U. S. C. I552. Spec35ally, re-
spondents sought the grant proposals and contracts awarded
under the MRULTRA program and the names of the Institu-
tions and individuals that had performed research.'
Pursuant to respondents' request. the Agency made avail-
able to respondents all of the MXULTRA grant proposals
and contracts. Citing Exemption 3 of the FOIA, 5 U. S. C.
1552(bX3XB); however, the Agency declined to disclose the
Subcommitue on Health and Sdent& Research, of the Senau Committee
on Human Resow . 66th Cong.. let Sesa. (19M
An internal Agency report by its Ir*peetor General had documented the
controversial aspects d the IIIHULTRA project 11963. See Report of
Inspection Q( MIULTRA (Jdy 16.1 3).
'Sims and Wolfe are the respondents in No. 83--107b and the erne
pedtiooen in No. 83-IM. In seder to avoid oonl radon. we rein to Star
and Wore as reapoodents thrumout this opinion.
'Twenty Sara after the omoepcioo of the ULTRA prejeet..1
(mown Ma peru mfg to ItIULTRA were ordered destroyed. Final Re-
port. at 3w-M. 4H-40& In 19'R. the Agency bested some 8.000 pegs
of peeviot 1y areSsdoeed 1XULTRA document'- These non diced month
d Snaidal ri that bad madvateatly anvived the 1973 rs rds -
nnl-
sweooo. Upon this d scow y. Agwx7 Director Stan-fie id Turner
Sod the Senate Select Co. mmittean brash em and later ton ed at a
joist bearW lichee the Seim Coennittee and the Subcommittee on
Hume
Health aid SdeaMS& Resouroea of the Senate Committee on
Resoorn. Although the Joint Committee was grven a aompiets Set of
the MHULTRA reeardins ad d ons. the Committee boiared the
Ageiey's r.girst to treat the names as eomMden al Respondents sought
the sin viviooc YSULTRA reeved'- that would provide this inlformatiod
'The Agony abo died Exemption 6. 6 U. S. C. I552(bl(m, which h}
wilsus ftm d s&i i re personnel and medical On and mmIsr lies the
disdosa:e of which would aanstitose a dearly unwarranted Invasion of par-
soc al privacy.' We dada, rejecud by the District Court aid the Caws of
Appeals. L so longer at bnoa.
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W1075 & SS-120--OPINION
4 CIA a SIPS
names of all individual researchers and 21 institutions.' Ex-
emption 3 provides that an agency need not disclose "utters
that an. . . specifically exempted from disclosure by statute
... provided that such statute ... refers to particular types
of matters to be withheld." Ibid. The Agency relied on
I102(dX3) of the National Security Act of 1947, 61 Stat. 498,
50 U. S. C. 1403(dX3), which states that
"the Director of Central Intelligence shall be responsible
for protecting intelligence sources and methods from un-
authorized disclosure."
Dissatisfied with the Agency's limited disclosure, respond-
ents filed suit under the FOIA, 5 U. S. C. I552(aX4XB). in
the United States District Court for the District of Columbia.
That court ordered disclosure of the withheld names, holding
that the MKULTRA researchers and affiliated institutions
were not "intelligence sources" within the meaning of
1102(dX3). 479 F. Sapp. 84 (DC 1979). concluded,
On appeal, the United States Court of Appeals as had the District Court, that 1102(dX3) qualifies as a with-
bolding statute under Exemption 3 of the FOIL The
held, however, that the District Court's analysis of that stat-
ute under the FOIA lacked a coherent definition of "intelli-
gence sources." Accordingly, it remanded the con for re-
consideration in light of the following definition:
"[Ain 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.
D. C. 157, 166, 642 F. 2d 562, 571 (1960).
'The Arem y vied to coetaet ea& ini tutkm iatdved is MIULTRA to
ask permisdoo to disclose its identity; it rekssed o~ d the 59 iw&
:Rg nations that had consented. Evideat]y, tM SAI! to eontwt the 0 indi?id+ial csa. See a. Z2. Whs.
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! as 1241 -0?IN10N
cuaSM .
On remand, the District Court applied this definition and
ordered the Agency to disclose the names of 47 researchers
and the institutions with whkh they bad been afNiated.
The court rejected respondents' contention that the
M:KULTRA research was not needed perform the Agen-
cy's intelligence function, exp that
?J)a view of the agency's conern that pots foreign
enemies could be engaged in aim~7ar research and the de-
sire to take effective counter-measures, [the
Agency) could reasonably determine that this research
was needsu for its intelligence function." App. to Pet.
for Cert. in No. 83-1075, pp. 22s-' 1-
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 informs-
tion supplied by the MHULTRA sources without guarantee-
ing 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 de-
sire for confidentiality was on the part of the CIA." Id., at
24a. The recopned that some of the researchers bad
sought, and received, express guarantees of coddentislity
from the Agency, and as to those held that their identities
need not be disclosed. The court also exempted other re-
sesrchers from disclose 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
26s-Va, 30s-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 87a, 34$
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53-1076 A 53-1249-OPINION
CIA a SI]XS
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 in-
dividual researchers found to be intelligence sources. How-
ever, it reversed the District Court's ruling with respect to
which individual researchers satisfied the need-for-confiden-
tiality" aspect of its formulation of exempt "intelligence
sources." 228 U. S. App. D. C. 269, 275, 709 F. 2d 95, 101
(1983).
At the outset, the court rejected the suggestion that it re-
consider 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 eonfiden-
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 eff-
forts izi confidentiality in order to obtain the type of informa-
tion provided by the researcher. Only upon such a showing
would the individual qualify as an`0te~II`igenFe source ex-
empt from disclosure under the FOIA.'
$J dge Bork wrests a separate opiaioo. eooelariag in part and disaeat.
ing in part. Be aideined the majoritys narrow desnrtwn of into genre
soraees,- twpng in particular that there is "no reason to think that section
408(d)(3) was meant to protect sources of infornwaan only if seaeq was
needed in order to obtain the information.' !?S U. S. App. D. C., at M.
709 F. td. at 103. Be noted that "tilt seems far more in keeping with the
broad language and purpose of (Section 40o(d)(3)] to eondude that It so-
tbwom the noodisdem'e of a source of information whenever disdoswe
might lead to diaoova7 of what subjects were of interest to the CIA.'
IMA He also took issue with the majority's esodusion that the FOIA
sometimes requires the Agency to break a premse of confidentiality ft has
given to an intelligence some. This is hot an tionorable way for the g e-
erament of the United States to behave,- and would produce -pernida s
resu)ts.' !d. at 276-!77.709 F. 2d. at 102-105.
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~L-1o76 ! SI-12d-0PIH10N
CIA a SI
We granted certiorari, 465 U. S. (1981). we
now reverse in part and d5rm in part.
II
No. 83-1075
A
The mandate of the FOIA ceps for broad disclosure of Gov-
ernment records' Congress recognized, however, that
public disclosure is not always in the public interest and thus
provided that agency records may be withheld from disclo-
care under any of the nine exemptions defined in 5 U. S. C.
3682(b). Under Exemption 3 disclosure need not be made as
to information "specifically exempted from disclosure by stat-
ute" if the statute affords the agency no discretion on disclo-
sure, 5 U. S. C. 1562(bX3XA), establishes particular aiteris
for withholding the information, or refers to the particular
types of material to be withheld, f 532(bX3XB).
The question in No. 83-1075 is twofold: gist, does
f 102(d)(3) of the National Security Art of 1947 constitute a
statutory exemption to disclosure within the meaning of Ex-
emption 3; and second, are the IdKULTRA researchers in-
dulled within I102(d)(3Ys protection of 'intelligence
IOWULW
B
Congress has made the Director of Central Intelligence
"responsible for protecting intelligence sources and methods
from unauthorized disclosure." 50 U. S. C. I403(d)(3). As
part of its postwar reorganization of the national ddense sys-
tem, Congress chartered the Agency with the responsibility
it coordinating intelligence activities relating to national ae-
aoncistrndy recosarsd this pr ae pla Seg. e. N.
$a1dripe v. Shapiro. 456 U. S 346, 352 (1993) XLRB v Bo3biaa Tin &
lvSbsr Co., 437 U. S. 114. M (1973) SPA t. Mink, 410 U. S. 73, 80
Oft
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53-1075 ! D-1241-OPINION
1 CIA a SIMS
cuity." In order to carry out its mission. the Agency was
expressly entrusted with protecting the heart of all intelli-
gence operations--"sources and methods."
Section 102tdX8) of the National Security Act of i941,'
which calls for the Director of Central Intelligence to protaft
intelligence sources and methods," dearly "defers to per- :`
titular types of matters," 5 U. S. C. I552(bXSXB), and thus
qualifies as a withholding statute under Exemptic t The
'plain meaning" of the relevant statutory provisions is suffi-
cient to resolve the question, see, e. p., Garcia v. United
States, 469 U. S. , - (1984); United States v. Weber
Aircraft Corp., 465 U. S. -, - (1984). Moreover, the
legislative history of the FOIA confirms that Congress in-
tended 1102(d)(3) to be a withholding statute under Exemp.
tion 3." Indeed, this is the uniform view among other fed-
eral courts.'
Our conclusion that ;102(dX3) qualifies as a withholding
statute under Exemption 8 is only the first step of
the inquiry. Agency records are protected under 1102(dX3)
only to the extent they contain "intelligence sources and
.See, i. p., B. R. Rep. No. 161. SOtb Coati., Lt Son.. 3 (114?); S. Rep.
No. W. 50th Cant., lint Sees.. 1(1917).
? See B. L Rep. No. 96-M. Pt- 2. p. lb, a. 2 (1976). See also I3. R.
Coat Rep. No. 15-1380, p. 12 (19741r, S. Cant Rep. No. 9S-IMO, p. 12
(1974). S. Rep. No. 16-1k p. 16 (1174). For $ thorough rsview o( the
rderaat bsckgsound. we DsL.m,ratijs v. Hag. 686 F. 2d 192. 196-197
(CAS 1982) (per e?r+ana).
Recently, Congress enacted the Centssl Intefigence Agency Informa-
tion Ad, Pub. L 16-471,18 Stat. 2209, exempting the Agrees 'opers-
tiooal Sles" from the FOIA. The legislative history reveals that Congress
mamtaiae the position that Sectim 102(d)(3) is an Ezempdan 3 statute.
See, e. p., S. R. Rep. No. 98-416, pt. 1. p. 5 (1964); S. Rep. No. 96-306.
p. 7. a. 4 (1983).
? See, s. p.. MiUrr v Casey. 236 U. S. App. D. C. U. 15. ' 0 F. 3d 773.
TTf (1984} Gs,d is v. CIA. YZ1 U. S. App. D. C. 18.91. 68? F. 2d 1100.
1108 (1987); Halp.rM v. CIA, SM U. S. App. D. C. 110, 1US. U29 F. 3d
144, 147 (1990); Natioad Cowa'du+on ow Lary Is/orcme sad Soul
Justin t CIA. 576 F. 3d 17r3. 1376 (CA91975).
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a_in ! q_l* ,_0P N10N
CIA a SINS
methods" or if disclosure would reveal otherwise protected
information. 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. The plain
meaning of the statutory language, as well as the kgis
history of the National Security Act, however, indicates that
Congress vested in the Director Intelligence TOY
broad authority to protect all informs
lion from disclosure. The Court of Appeal? narrowing at
~ of
InM
th
Congresso but also oveflooks is authority not only contravenes the the express practical tin of
ern intelligence gathering-the very modem v reason Congress
mod
entrusted this Agency M sweeping to protect its
"intelligence sources We begin with the and language of 3102(dX3). BaZdripe T.
Shapiro, 456 U. S. 345, 856 (1982); Steadman v. SEC. 450
U. S. 91, 97 (1981). Section 102(d)(3) specifically authorizes
the Director of Central Intelligence to protect 'intelligence
sources and methods" from disclosure. Plainly the broad
sweep of this statutory language comports with the nature of
the Agency's unique respons~'b~lities. To keep informed of
other nations' activities bearing on oar national security the
Agency must rely on a host of sources. At the same time,
the Director must have the authority to shield those Agency
activities and sources from any disclosmm that would unnec-
essarulY compromise the Agency's efforts.
The 'plain meaning" of 3102(dX3) may not be suathat
any limiting definition that goes beyond the requirement
the information fall within the Agency's mandate to conduct
foreign intelligence. Section 102(d)(3) does not state, as the
Court of Apps' view suggeSts, that the Director of Central
Intelligence is authorized to protect intelligence sources only
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10 CIA a SIRS
if such protection is needed to obtain information that other-
wise could not be acquired. Nor did Congress state that
only confidential or nonpublic Intelligence sources are Pro-
tested.' Section 102(dX3) contains no such limiting lan-
guage. Congress simply and pointedly protected all boom"
of intelligence that provide, or are engaged to provide, in-
formation the Agency needs to perform its statutory duties
with respect to foreign intelligence. The plain statutory Isn-
guage is not to be ignored. Weber Aircraft Corp., rips, at
The legislative history of f 102(dX3) also makes dear that
Congress intended to give the Director of Central InteUi-
gence broad power to protect the secrecy and integrity of the
intelligence process. The reasons are too obvious to all for
enlarged discussion; without such protections the Agency
would be virtually impotent.
Enacted shortly after World War II, 1102(dX3) of the Na-
tional Security Act of 1947 established the Agency and em-
powered it, among other things, "to correlate and evaluate
intelligence relating to the national security." 50 U. S. C.
403(dX3)? 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 Seas., 3-4 (1947); S. Rep. No. 239, 80th
Cong., lit Sess., 2 (1947).
Congress knew quite well that the Agency would gather
intelligence from almost an infinite variety of diverse
sources. Indeed, one of the primary reasons for creating the
? ComSreas artaiaty is capable d drafting h 4s]atioa that narrows the
atom of pratacted sources of information. In other prormaos of the
TOIA and in the Privacy Act, Coopers has protected Oonsdentsal
soaee(sl." sowers d "eonMentsal information." and soirees that pre idsd
information ands an express promise of oaosdentiahty. See 5 U. S. C.
f 562(bX7XD); 5 U. S. C. It 565 5X2) and (5).
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CIA a SIPS U
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 fntelli-
genee field tested before Congress concerning the practical
realities of intelligence work. Fleet Admiral Nimits, for ex-
ample, explained that "intelligence is a composite of suthenti-
ated and evaluated information covering not only the armed
forces establishment of a possible enemy, but also his indus-
trial capacity, racial traits, religious beliefs, and other related
aspects." National Defense Establishment: Hearings on S.
758 before the Senate Committee on Armed Services, 80th
Cong., 1st Seas., 132 (1947) (Senate Hearings). General
Vandenberg, then the Director of the Central Intelligence
Group, the Agency's immediate predecessor, emphasized
that 'foreign intelligence [gathering] consists of securing all
possible data pertaining to foreign governments or the na-
tional defense and security of the United States." Id., at
497."
Witnesses spoke of the extraordinary diversity of intelli-
gence sources. Allen Dulles, for example, the Agency's first
Director, shattered the myth of the classic "secret agent" as
the typical intelligence source, and explained that "American
businessmen and American professors and Americans of all
types and descriptions who travel around the world are one
of the greatest repositories of intelligence that we have."
National Security Act of 1947: Hearings an H. R. 2319 before
7 appredated the ,pedal natured the A5enc7 s
iatel>isexe For e:smple, Rep. Wadswarth remarked that the
oft ..n it [the Agewyl is to eonsdtute itself as a gathering pond for M-
formation coming &M all ova the wand through all idnds d ehannnels'
is Cons. Rse. 9397 (1947). Rep. Boar, during the course of the Bowe
hearinp, eommeatsd that the Director of Central InteUigesoe '1a de.Das
W" an the information and the evaluation at that informatim fan wher-
eea we can sit V Nstioaal See+a:ity Act at 194?: Hearing m B. L
U19 before the Boost Canr ittae an #xpeoditum in the Suentee D?
partmenta. SOth Coss., 1st Sen., 112 (Apr. 2-July 1. 1947).
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W3-l075 ! es-12US-OPINION
12 CLA a SIMS
the House Committee on Expenditures in the Executive De-
partments, 80th Cong., lit Seca., 22 (June 27,147) (Closed
House Hearings)." In a similar vein, General Vandenberg
spoke of "`the great open sources of information upon which
roughly 80 percent of intelligence should be based," and iden-
tified such sources as "books, magazines, technical and scien-
tific surveys, photographs, commercial analyses, newspa-
pers, and radio broadcasts, and general information from
people with knowledge of affairs abroad." Senate Hearings,
at 492.
Congress was also well aware of the importance of secrecy
in the intelligence Geld. Both General Vandenberg and
Allen Dulles testified about the grim consequences facing
intelligence sources whose identities became known. See
Closed House Hearings, at 10-11, 20. Moreover, Dulles ex-
plained that even American citizens who freely supply intelli-
gence information "close up like a clam" unless they can hold
the Government "responsible to keep the complete security
of the information they turn over." Id., at r" Congress
was plainly alert to the need for maintaining confidentiality-
both Houses went into executive session to consider the leg-
islation creating the Agency-a rare practice !br congres-
sional sessions. See a. 15, supra.
Against this background highlighting the requirements of
effective intelligence operations, Congress expressly made
lbws besrmp wee held in executive session. The tirasaKriP* was
dedaasided is 1982. The Senate also held hesrinp beniad dosed doors.
See S. Rep. No. W. SOth Cong., in Sen., 1(1917).
' Seaeey b lobe ently a key to successfUl iatemgenee aQera oos- In
the eomse dlas?g orders for an intdlig ce mission, George Washington
wrote to his apes
"'1bs uecesdty of procuriM good inteiligenae, is apparent and need not be
llttther weed. AD that remains for me to add is, that you keep the whole
fatter as seaet as posasbb For upon secrecy, am em depends in most
EntaWises of the kid, and for want of tt they an geaaafy defeated
. $ Writings of George Washington 478-449 (J. Fitzpatrick ed.19B3)
(Leta from George Washington to Colonel Use Data. July 2, 17T1).
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C1A a SUIS v
the Director of Central Intelligence respondble for *prWAct-
ing Intelligence sources and methods
troas presideas Truman's
closure." This language stemmed uDirective of January 22,1946, 11 Fed. Reg. 1337, in which be
established the National Intelligence Agency and the Central
Intelligence Group, the Agency's predecessors. These iasti?
tutions were charged with 'assur(ing] the most effective
accomplishment of the intelligence mission related to the na-
tional security," ibid., and accordingly made ' respons`ble for
fully protecting intelligence sources and methods,' id., at
1339. The fact that the mandate of 1102(dX3) derives from
this Presidential Directive reinforces our reading of the legis-
lative history that Congress gave the Agency brad power to
control the disclosure of intelligence sources.
III
A
Applying the dednitioo of 'tintelbgence soma? 6sbioned
by the Congress in 11a2(dX3), we bold that the Director of
Central Intelligence wan well within his statutory authority
to withhold the names of the MIULTRA researchers but
disclosure under the FOIL The District Court speci&slly
ruled that the Agency 'could, reasonably deter ?tha~ this
research was needed for its Intelligence lboctioo. the
Court of Appeals did not question this rubg. Indeed, the
record shows that the MKULTRA research was related to
the Agency's intelligence-gathering function in part because
it revealed information about the ability of foreign govern-
ments to use drugs and other biological, chemical, or physical
agents in warfare or intelligence operations against adversar-
ies. During the height of the cold war period, the Agency
was concerned, not without reason, that other coamtries were
charting new advances in brainwashing and interrogation
techniques. 10
' App. to Pet. for Cat is Na e3-1075, pp. 22s-t1s.
'Far example. Dbeetar of Intellicrsce Stan 1d 'rennet explained
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14 CIA x SIRS
Consistent with Its responsibility to maintain national secu'
rity, the Agency reasonably determined that major research
efforts were necessary in order to keep informed of our po-
tential adversaries' perceived threat. We thus conclude that
MKULTRA researchers are 9ntelligenee sources" within the
broad meaning of 1102(dX3) because these persons provided.
or were engaged to provide, information the Agency needs 1D
l1ildl its statutory obliptioas with respect to foreign
intefigence.
Respondents' belated effort to question the Agency's au-
thority to engage scientists and academic researchers as
intelligence sources must fail. The legislative history of
1102(dX3) indicates that Congress was well aware that the
Agency would can on a wide range and variety of sources to
provide intelligence. Moreover, the record developed in this
case confirms the obvious importance of scientists and other
researchers as American intefigence sources. Notable ex-
amples include those sdentist3 and researchers who pie
veered the use of radar during World 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.'
B
The Coat Of Appeals narrowed the Director's authority
ender 11((dX3) to withhold only those' intelligence sources"
to en s>mdsrit that the MKULTRA prop= was initistad becuae the
Agency was eoofrontad with " learning the state of the an of beharioral
W"afimrime at a time when the U. S Goverment was aoocerwd abort
texplie" beharia of persons behind the vam =ruin' aad America
peieOMas of war who bad been subjected to so a .fed 'brainwashing.'" Id,
st' Indeed, the kpslatlve history of the recently enacted Central InteBi-
ge Amy information Aet, Pub. L IS-477, 98 Stet 2209, as which
Canpw exempted the Agency's "operatic& Iles' from discloswe uade
the FOLI, reveals Congress' continued ?deretan?t that scendik surams world be valuable intafigeue somees. See B. B. Rep. No.
98-=, pt 1. p. 32 (1984).
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CUs :DDS 16
who supplied the Agency with inforf cation unattainable with-
out guaranteeing confidentiality. That crabbed e ,of
the statute contravenes the express language of ;i
the statute's legislative Jan history,
consequences of that narrow-
ing day. The
of the statute suggest why Congress chose to vest the Di-
rector 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 a This forced disclosure of the
identities of its intelligence sources could well have adevas-
tating impact on the Agency's ability to in protecting
The Government has a compelling
both the secrecy of information important to our national se-
curity and the appearance of eonlidentiality so essential to
the effective operation of our foreign intelligence service."
S,upp . United States, 444 U. S. 507, 509, n. 3 (1980) (per
curiam). See Haig w Age., 453 U. S. 290, 307 (1981). If
potentially valuable inteligmce sources come to think that
the Agency wtM be unable to maintain the confidentiality of
its relationship to them, many could well refuse to apply in-
fo rmation to the Agency in the first place.
Even a small ehan a that some court will order disclosure
at a source's identity could well impair intelligence gathering
? tadeed, the Court of Appeala matsw that the A;estry world be n-
4pbvd betray as .:phut promise d eooddentialit7 if a court determines
that the prnmiae wan nest wars"". er if a court aoodades that the b tani-
=ence soum to whom the promise vu given wan Oueiamably and stypi-
eany ka7P daoope g with Ow Ae m.y. 226 U. S. App. D. C., A V _
105 F. Sd. at 59. Mowsr. -4)r at nations, 5k s mn. should keep -
tbea ward.' FPC v 7usea nom Idian Nation, 362 U. S 99.142 (1960)
ardh& J., dissenttnt).
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W-IO75 & 83-1245-OPINION
is CIA a SIPS
and cruse sources to ?elose up Ilk. a elan a To induce some
sources to cooperate, the Government must tender as abso-
lute an assn anee of confidentiality as it possibly can. "The
continued availability of (intelligence) sources depends upon
the CIA's ability to guarantee the security of information
that might compromise them and even danger [their] per-
sonal safety." Snepp v 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.
An intelligence source will not be concerned with the under-
lying rationale for disclosure of" his cooperation if it was
secured "under assurances of confidentiality." Baldrige v.
Shapiro, 455 U. S., at 361. Moreover, a court's decision
whether an intelligence source will be harmed if his identity
is revealed will often require complex political, historical, and
psychological judgments. See, e.g., Fitzgibbon v. CIA, 578
F. Supp. 704 (DC 1983). There is no reason for a potential
intelligence source, whose welfare and safety may be at
stake, to have great confidence in the ability of judges to
make those judgments correctly.
The Corot of Appeals also lined to recognize that when
Congress protected Intelligence sources" from disclosure, it
was not simply protecting sources of secret intelligence m-
formatiaa. 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
intelligence information that members of the public could also
obtain. Under the Court of Appeals' approach, the Agency
could not withhold the. identity of a source of intelligence if
that information is also publicly available. This analysis
ignores the realities of intelligence work. which often in-
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CIA a SI>IL3 17
volves seemingly taus soUrcU r well os waspectint
individuals who provide valuable iouffiten' daC.
Disclosure of the subject matter of the Agency' s.iitayrchh
efforts and inquiries may compromise the Agency'
gather intelligence as much as disclosure of the identities
a
of intelligence sources. A foreign gova'?meut can learn
Fat deal about the Agency's activities by bowing the pub-
lic sources of information that interest the Agency. The in-
quiries pursued by the Agency can often tell our adversaries
something that of value to them. See 22S U. S. App,
D. C., at 277, 1009 F. 2d, at 104 (Bori(? J?? fact
and dissenting in part). For example, discloffm of publicly the fact
that the Agency subacr~es to an obscure ~ thwirt the
able Eastern European technical jo
Agency's efforts to exploit its value as a source aIntel i
information. Similarly, had foreign go karned
the Agency was Using certain public journals and ongoing
open research projects in its MXULTRA research of"brain washing' and possible eountermeaa s' 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.'
C
The "statutory mandate" of i 10dX3) is clear. Congress
r wide-ranging authority to dt1 intel-
pve the Director moo
peace sources and methods from Umthorized
509, a. A An intelli-
Sncpp v. United States, 444 U. S, at n
~~ source provides, or is Its enpged to pro
the Agency needs to lbmU
record establishes that the XULTRA resawthers did is
fact provide the Agency with information related
? is ao at5da.it, Direesa d Central latelli9wm 'bas stated tit
Zt~Onsbaat the eomse d the tMXU.,TRA1 Pr *d, CIA havolvement or
sssooatim with the raearth was eao~aled aids to s?oid samel t
the bItzes, of boat wwtries in the same resew ares< APP.
for Ceet is No. >t3-10'15. pp. 890-900,
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13-1075 & 83-120-OPINION
1$ CIA s SI]t.S
to the AgenWs intelligence llunetioo. We therefore bold
that the Director was authorized to withhold the identities of
these researchers from disclosure ender the FOIL
IV
No. 83-1249
The cross-petition, No. 83-1249, calla for decision on
whether the District Court and the Court of Appeals cor-
rectly ruled that the Director of Central Intelligence need not
disclose the institutional affiliations of the MKULTRA re-
searchers previously held to be intelligence sources.' Our
conclusion that the MKULTRA researchers are protected
from disclosure under i 102(dX3) renders unnecessary any
extended discussion of this discrete issue.
In exercising the authority granted by Congress in
! 102(d)(3), the Director must, of course, do more than simply
withhold the names of intelligence sources. Such withhold-
ing, standing alone, does not carry out the mandate of Con-
gress. Foreign intelligence services have an interest in
(mowing what is being studied and researched by our agen-
cies 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 iden-
tities of 'intell'igence sources from seemingly unimportant
details.
In this context, the very ~ nature
finof the intelgence d out the concerasa
rectos of any country
others; bits and pieces of data ftaay aid in piecing together
bits of other information even when the individual piece is not
of obvious importance in Melt' Halperin v. CIA, 203 U. S.
App. D. C. 110, 116, 629 F. 2d 144, 150 (1960). Thus,
"twTat may seem trivial to the uninformed, may appear
of great moment to one who has a broad view of the
scene and may put the questioned item of information in
its proper context.'" Halkin w Helms, 194 U. S. App.
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? IS-~pjtN104
2d 1 9 (1918). 4uoting United stagy
F X1309+ ISIS (CA4), cc rt. dcnied.
D. C. 8'l. 90. b98
T. Marchetti,
409 U. & 1063 (1912). no, exeTC his any yndl~
im 's0?s
the Director T 3,7
o l d woe F e r r e r t o-
the see
; 1 0 3). h a s Po tthhst it might ansble , ?. p.,
on identity of an tats uigilwe s689 F? 2d
the
U. S App. D. C. 88+ at 113.6'29
mover
Gardggs v. CIA. 223 n v. CIA, sup'r'
1100. 1 1104-1106 (190' H PeR of the WdtW ur't F. 2d, 147. Tcoud that d 'Wog lead to
Hem the
eel Zf&tiom of thetbemselves and thus
id
idcntied s ~.tble risk of revealusg ?e?tscted TC who m
We 09 pbe decisions of the juagq are
occe with "the who It
ven t tide of
of to, are worthy f00 t deference 8 the a Stake-
t are
of
i
oD
nstionsl sccwth thee men eXpynat
nceivable d is Co t can convey valuable inf
on must be forte mtelhVnCe to a rig affirmed by the, COW% of AP
' Dom' the Director to tto ides were esempc the WsetauOtal
Psis. the researchers wboae tide of `the edend
affi ? on the grO mkt leab4omt
d the
tmm as"= of the om ? twm eemr
maw ~ OD Wti'v?A MWbi&
AW
t*11634 %0 WW
Ot Pr~beM use d ad ioni6wipg e aj, s. L As s
Vjtt;'si expe Ms. tat ab "M1 d tbae *0 b-d as
lid ~*0 pow Ot~'s's awsa *A ' wed
iD pie & daaw'L the rime d any " dl,
objeeti0? dselose
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30 CU a SINS
cloture of" individual researchers. App. to Pet. for Cert. in
No. 83-1075, p. 27a. This conclusion is supported by the
record.' The Director reasonably concluded that an ob-
server who is knowledgeable about a particular intelligence
research project, Me MKULTRA, could, upon learning that
research was performed at a certain institution, often deduce
the identities of the individual researchers who an protected
intelligence sources." The FOIA does not require diaclo-
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-
how estopped from withholding the names of others. This
suggestion overlooks the political realities of intelligence operations in which, among other things, as Government ,.t
may choose to release information deliberately to "send a
message" to allies or adversaries." Congress did not man-
the withholding of information that may reveal the iden-
date
tity of an intelligence source; it made the Director of Central
Intelligence responsible only for protecting against lutaa-
tltorited disclosures.
The national interest sometimes makes it advisable, or
even imperative, to disclose information that may lead to the
? For e:ampk. an affidavit Sled by an Aseaey operstiow o&er f3amibar
with XXULTBA stated that diselosw a a( the ms=t== at which
XKULTRA search was performed would pose "a threat of donate to ex-
isting mte see-relatad arrangements with the i ututioos or expos=
d past relationships with the institt-tioos.' App. n
? Adaoail Tamar provided ens wdl-lmown sample dthis phe-
nomenon:
ZD)saM the Cuban moats crisis. President Kennedy decided to release a
sren deal d seaside intenigence information oneerain= Soviet "lade
hstanation in Cuba. It was dear. At that time, that the Soviets had to be
toad pubSdr that the United States Government had predse information
on the extent of the Soviet threat in ardor to justify the straot aauate,
sneaswes then taken by oar Goveeament.' App. to Pet. br Cert. in No.
15-1075, p. SO L
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CIA a SIYS 21
identity of intelligence sources. And it is the responsiib0itp
of the Director of Central Int.IIifenee. sot that of the jeadi?
esary, to weigh the variety of complex and subtle bctois in
determining whether disclosure of lnformwon may lead to an
unacceptable risk of compromising the Agency's inteuigenc'
Director, de-
gathering process. Here Admiral 'Turner, U
cided that the benefits of disclosing the identities of institu-
tions that had no objection to disclosure outweighed the coats
of doing so. But Congress. in f 102(d)(3), entrusted this dis-
cretionary authority to the Dcto,~ and ao~a no~tb~dAdmi,
~
rai Turner nude that determination
different
successors to make the same ons_UtzeSL1ng that thew
contact, with respect u ~ U+eitLd
identities not be disci ? CSee . ems, F , 971 24, States, 223 U. S.App.
(1982). V
We hold that the DirectoNa~ Central Security Act of 947 Lo
to
3 102(dX3) of the
withhold disclosure of the identities of the individual
3KULTRA researchers as protected'Satelligtaa sources.
We also bold that the FOIA does not require the Director to
research-
disclose the institutional s tns of the exam deter,
an in light of the record which ppoets the AgencY's aele
urination that such disclosure would Ind to an unacCep
risk of disclosing the sow' Identities. of the
Accordingly, we reverse that part of the judgment
Court of Appeals regarding the discbsure of the individual
researchers and affirm that part of the judgment pertaining
to disclosure of the researchers' institutional a&iations.
I t is to ordered
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SUPREME COURT OF THE UNITED STATES
Nos. e3-1o75 AND 13-12 9
CENTRAL INTELLIGENCE AGENCY, ET Al..
PETITIONERS
8S-1075 a
JOHN CARY SIMS AND SIDNEY M. WOLFE
JOHN CARY SIMS AND SIDNEY M. WOLFE.
PETITIONERS
83-1249 s
CENTRAL INTELLIGENCE AGENCY AND WILLIAM
J. CASEY, DIRECTOR, CENTRAL
INTELLIGENCE AGENCY
ON WRITS OF CERTIORARI TO TEE UNITED STATES COURT OF
APPEALS FOR TEE DISTRICT OF COLITh&BLA CIRCUIT
(April 16. Ue6I
JUSTICE MARSHALL, with whom JUSTICE BR ENNAN joins,
concurring in the result.
To give meaning to the term "intelligence sours" as it is
used in ! 102(dX3) of the National Sec city Act of 1947, the
Court today correctly concludes that the very narrow deflni-
tian offered by the Court of Appeals is incorrect.' That the
Court of Appeals erred does not, however, compel the con-
clusion that the Agency's sweeping alternative definition is in
''ib Comet of Appeals defined u -wteMgt= so ce se `a pfssoe w
ioatitution that provides, bas provided. w bas beta enped to provide the
CIA with mfocmadon of s kind the Ag c7 seeds to pert rm its mteDi-
p flmction effectively. yet could sot ieusons.My expect to obtain wttb-
caat 6uaranteeie( the confidentiality of those who provide V 206 U. S
App. D. C. 157. 166.642 F. 2d 562.971(1910) (Sines 1).
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fact the correct one.' The Court nonetheless simply adopts
wholesale the Agency's definition of 'intelligence source."
That definition is mandated neither by the language or legis-
lative history of any congressional act, nor by legitimate pol-
icy considerations, and it in fact thwarts congressional efforts
to balance the public's interest in information and the Gov-
ernment's need for secrecy. I therefore decline to join the
opinion of the Court.
I
The Freedom of Information Act (FOIA or Act) estab-
lished a broad mandate for disclosure of governmental in-
formation by requiring that all materials be made public "un-
less explicitly allowed to be kept secret by one of the
exemptions ..." S. Rep. No. 813, 89th Cong., In Sess.. 10
(1965). The Act requires courts to review de note agency
claims of exemption, and it places on the Agency the burden
of defending its withholding of information. 5 U. S. C.
1552(aX4XB)? Congress, it is clear, sought to same that
Government would not operate behind & ,veil of secrecy, and
it narrowly tailored the exceptions to the fundamental goal of
disclosure.
Two of these few exceptions are at issue in this can. The
first, on which the Corot focuses, is Exemption 3, which ex-
empts information "specifically exempted from disclosure by
statute," if the statute affords the agency no discretion on
disclosure, 15500W, establishes particular criteria for
withholding the information, ! 5b2(b)3XB), or refers to the
particular types of material to be withheld, ibid. The Court
quite rightly identifies 1102(dX3) of the National Security
Act as a statutory exemption of the kind to which Exemption
3 refers; that section places with the Director of Central
$ today deEna as lnteNgtom oared w ow that' ovidsa.
w i enpged to provide. i farmaaaa ... rebted to the Agency's bn&M-
Sean f1mt m ' so&, at 17-1& and hoida also that the Diredar may with-
bold. order tbia provision, ishrma m that mwht enable an observer to
disoorsr the identity of soeh a sous. Ask. at IS.
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CIA a SIMS 3
Intelligence the responsibility for "protecting fntelUgence
sources and methods ffrom unauthorized disclosure..
A second exemption, known as Exemption 1, covers mat-
ters that are "(A) specifically authorized under criteria estab-
lished by in Executive order to be kept secret in the inter-
est of national defense or foreign policy and (B) are in fret
property classified pursuant to such Executive order." 5
U. S. C. f 552(bXl). This latter exemption gives to the Ex?
ecutive Branch the authority. to define material that will not
be disclosed, subject of course to congressional amendment of
the exemption. Agency decisions to withhold are subject to
de novo review in the courts. which must ascertain whether
documents are correctly classified, both substantively and
procedurally.
Exemption 1 is the keystone of a congressional scheme that
balances deference to the Executive's interest in maintaining
secrecy with continued judicial and congressional oversight.
In the past, Congress has taken affirmative steps to make
clear the importance of this oversight. See n. 5, boo. Ex-
emption 1 allows the Government to protect from that scru-
tiny of this Nation's enemies classes of information h war-
rant protection, as long as the Government proaeds through
a publicly issued, congressionally scrutinized. and judicially
enforced executive order. See Hearing on Executive Order
on Security Classification before the Subcommittee of the
Committee on Government Operations of the Have of Rep-
resentatives, 97th Cong., 2d Se s. (1952) (Hearing).
Exemption 1 thus plays a crucial role in the protection of
Central Intelligence Agency information. That the Court
does not mention this exemption even once, in the course of
its lengthy analysis on the policy reasons for broadly inter-
preting the 'intelligence source" provision, is extraordinary.
By focusing myopically on the single statutory provision on
which the Agency has chosen to rely in asaerting its secrecy
right, the Cant rewards the agency's decision not to invoke
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4 ClA a SM
Exemption 1 In this case' Of course, the Agency may fairly
assert any possible ground for decision. and it has no duty to
select that which is narrowest. But Court, Y P Ys m
sure that important information is protected, "
the Agency's hands by stretching the "intelligence source"
exception beyond its natural limit; it does so while simply
ignoring the fact that the information sought could properly
have been withheld on other grounds--on which the Agen
s cy
chose not to rely. The cost of acceding to the Agency'
gation strategy, rather than undertaldng a thorough analysis
of the entire statutory scheme, is to mangle, seriously, a
carefully crafted statutory scheme.
II
I turn, then, to consider in light of this statutory frame
work the Court's analysis of Exemption S. After concluding
that Exemption 3 incorporates 110Z(dX3) as a withholding
provision, the Court sets out to define the term "intelligence
source." First, it looks to the 'Main meaning" of the phrase
and concludes that an 'intelligence source" is self-evidently
the same as an 'Information source.' Ante, at 9-11. Sec-
ond, the Court looks to the legislative history. Pulling to-
gether pieces of testimony from congressional bearings on
the need to establish a centralised agency to gather informa-
tion, it concludes that Congress knew that the Agency would
collect information from diverse sources, and that "Congress
Indeed, this an present a curious example of the Government's ft-
pow stratep. Despite the repeated twin= Of the Disu ies Cowl, the
Agency steadfastly Mt WW to invoke Ewnpt on 1 to withbdd the informs-
don at issue. The lists of names of ULTRA researchers were in fact
aooe daaosed wider an Ewe Order and were therefore within the e .WSW scope of Exemption 1, but the Agency elected to dsdusify tbow
gee 479 F. Sup. 5t, 89 (DC 1979). The Disgust Corot went so far ere to
postpone the effective data at Its disclosure order. so the Agency could "set
an the posmb1ity of daadtying the names of institutions and reaesrcben
redo in vim.
which would otherwise be disdosahhe' ib L. And tbereby withhold
MfUOW
information wider Ezempdon L The Age=7
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CIA a SM
Bert to the need for maintainint e0n,bdentialitf
was ?W*
so as not to we covert sources of iaformatson. A*k, t at It
at 1t
sec also Brief for Petitioners in No. 83-1 adopting
Third, the Court chastises the Court of A statute and e"Plsim how, as a 14-
a rig of the
a ~~
" readi
icy matter, the "forced diaelature of the identities o l-
ligence sources could well have s devastating ' at 15; we
Agency's ability to carry out its miss 'the Court
also Brief for Petitioners in ati~ve usorma son that, under
offers plea of highly
the lower court's reading, might be disclosed. See ate, at
16-17; we also Brief for Petitioners in No. 83-1075,
pp. 84-31. argued agaiuat the lower
Before this Court, the A~nnce source," subsetuted its
Court's dCSnition of ,~ then recounted a VMY of as'
own sweeping oltering, beW this Na-
tional security nigher that would su~CCY
ksse! standard; today the Court simply buys
lion under any sevessl impor'
this analysis. But the Court thereby tores Compelled by the
fast facts. Fast, the holding today five Mato aW
of the statute, nor by the i l
wb~"~ mom, Second, the Court of Appel
w tfi~ the
not the sole alternative to the one adopted by the
-
Coart today. Third, as noted, s~up*a other Wood exemp 3 Ca-
e~dst, and a holding that this Execon
tmm to FOIA would in no The PON the s risk
option does not apply here
the Agency suggests-
broad dsC1oture simply'
on the Nation's national security Intertsts empaion in n the
placed given that the 'intelligence source s eu?lusi or
National See y Act is far from the A
k0m secret
most potent, resource for keeping probing eyes
s sweeping dei
documents. In its baste to adopt
considerably MM -
loition, the Court completely bypasses w& with -
the
n-
rational deanition that comps at wry language and legislative hiskast as tory, that mai
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` CIA a SILLS
taiga the congressionally imposed limits on the Agency's ex-
ercise of discretion in this area.
To my mind, the phrase '%WIliitence source" refers only to
source. who provide information either on an express or im-
pUed promise of confidentia ity, and the exemption protect'
such information and material that would lead to disclosure of
such information. This reading is amply supponed by the
language of the statute and its history.
First, I And reliance on "plain meaning" wholly inappropri-
ate. The heart of the issue is whether the term "intelligence
909M,, connotes that which is confidential or clandestine,
and the answer is far from obvious. The term is readily sus-
ceptible of many interpretations, and in the past the Govern-
ment itself has defined the term far less broadly than it now
does before this Court. In testimony before the House Sub-
committee on Government Operations on President Reagan's
Exemption I Executive Order, Steven Garfinkel, Director of
the Information Security Oversight Olflce, explained that the
term Intelligence source" is narrow and does not encompass
even all confidential sources of information:
"(Certain of these sources are not Intelligence sources.'
They are not involved in intelligence agencies or in intel-
Agence work. They happen to be sources of information
received by these agencies in confidence." Hearing,
supra, at 204.
The current Administration's definition of the term Intelli-
gence soma" as used in its Executive Order does not, of
course, control our interpretation of a longstanding statute.
But the fact that the same Administration has read the
phrase in different ways for different purposes certainly un-
dercuts the Corns argument that the phrase has any single
and readily apparent definition.
"(Ppain meaning, like beauty, is sometimes in the eye of
the beholder," Florida Power & Light Co. v. Lorion, 470
U. S. - (1985), and in an instance such as this one,
in which the term at issue curies with it more than one plau-
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Bible meaning, it is amply 1AAPProPri9te to select s single
reading and label it the "plain meaning. The Court, like the
Government, argues that the statute does not say "emfiden-
tial source " as it might were its scope limited to sources who
have received an implied or express promise of confidential-
does not my 83-1075,
p. tion
Ity. See anew the statute tutoar also Petitioners
p. 16. Soave
source" as it might were it meant to define the class of mate-
rial that the Court identifies. I therefore reject the but s
a
basic premise that the language at issue necessarily has
single, obvious interpretation.
Nor does the legislative history suggest anything other.
than a tonal desire to protect those individuals who
might either be harmed or silenced should their b identkies or Hearings
assistance become imown. the The Government congressional
in its brie
quoted by the Court, and by
focus on Congress' concern entities were nv perV
esl~and
by 9 their ntelligence sources
about the possibility that those sources would "'close up like
a clam!' without protection. See ante, at it Brief for Peti-
tioners in No. 83-1075, p. ). These concerns are My ad-
dressed by preventing disclosure of the identities of sources
who might free peril, or ease providing information. it their
identities were known, and of other information that might
lead an observer to identify such sources.
for at '~amIIie mind,
is the start and finish of the exemption
source"--one who emu-lutes information on an implicit =-
der g or explicit assurance of confidentiality, as well as
information that could lead to such a source-'
? 6ct Comps estab& an Agmy to coned idorms m
bum anywhere it could ,does sot man tbas it sougbt thrvagb the pbrow
1utem9 nog aaad to bep aea'et eve 7t the #ge c7 afd to thins
repud. Far Gam k as the Coact and the ASeoe7 both admowledg% the d Comm about assay as be=ad en the
wd to wisint sin do as+a 7 of persons who world provide iaforawsice
ao), on an ua:ranm of omsdentialt7?
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$ CIA a SEMS
This reading of the Intelligence source" language also fits
comfortably within the I focus, the outset, m/ the rte
Court's reading does
cent history of FOIA Exemption 1 and particularly an the
way in which recent events reflect Congress' on-going effort
to constrain agency discretion of the kind endorsed today.
The scope of Exemption 1 is defined by the Executive, And its
breadth therefore quite naturally fluctuates over time. For
example. at the time ;,his FOLA action was begun, Executive
Order 12065, promulgated by President Carter, was in effect.
That order established three levels of Secrecy-top secret,
secret, and confidential--the lowest of which, "confidential,"
was "applied to information, the unauthorized diaelo> of
~to cause idendfilble
which reasonably could expected
. Reg. 249,28950
damage to the national security."
(19M.
The order also listed categories of information that could be considered for classification, including "military plass
weapons, or operations,* "foreign government information."
and intelligence activities and sources." Id., at 28961. As
it is now, nondisclosure premised on Exemption 1 was sub-
ject to judicial review. A court reviewing an Agency claim
to withholding under Exemption 1 was required to determine
do woo whether the document was properly classified and
whether It substantively met the criteria in the Executive
Order. If the claim was that the document or information in
it contained military plans, for example, a court was required
to determine whether the document was classified, whether
it in fact contained such information and whether disclosure
of the document reasonably could be expected to arse at
least identifiable damage to national security. The burden
was on the Agency to make this showing. At one time, this
Court believed that the judiciary was not qualified to %mder-
take this task. See EPA v. Mink, 410 U. S. 73 (1973), is
cussed in n. 5, infra Congress, however, disagreed, over-
mling both a decision of this Court and a Presidential veto to
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~
make clear that precisely this sort of f oilier a ir~essentW
be-
V the balance that Congress believed ought
tween disclosure and national security is to be struck in
Today's decision enables the Agency to avoid maldng the
showing required under the carefully craf ted balance embod-
ied in Exemption 1 and thereby thwarts Congress'
limit the Agency's discretion. be Coact identifies two cate-
gories of informations-the identity of individuals or entities,
whether or not confidential, that contribute material related
to Agency information-gathering, ajd material that might
enable an observer to discover the identity of such a
"source"-and rules that all such information is j T u subject
to withholding as long as it is related to the Agency' e
gence lbnetioa" The Agency need not even assert that di-
Mink, 410 U. S 73 (1973). the Coact held that when on
agency felled on Exemption 1. which at the time eo+ered mst'n 'sped
CODy fegaind by Esscative ordw to be kept sexes in the ktereet of the
national deft or foreign Pohe7, 5 U. S. C. li62(bXD (1970 ad.), a
sevirwirg court could affirm the decision sot to dsi& a an the basis of an
a6eae7 affidavit stating that the dwameat bad been duly' dumbed porso-
sat to cmc=v. order. The Cosat held that is ewae+s mspatioo tie
do~oameaoe was --4+ bar authorised sac Dater Ccm U S..
to Maw the Ixw=ve's deter badoc in tbae at IL
SboetLy thereat tor, Causes overrode a Presidential veto and amended
the Ad with the express papme of overu5sg the Mink demon. Esearp?
Lion I was modified to e x e m p t only mattes that see U) y 211-
6w =d ceder wit established by an Eseeztrve order to be kept asset
is the hung of national defense or foreign policy and (B) m tact pmperty
dared pwsuant to rid Eiacudve seder.' S U. S. C. I5b2(bXl). In
addition, Congress amended the judicial review hnguage to provide that
"tbe matt shaD determine the matter de no. and may gamine the aoa
testa d gosh agency rseords is esmrss to decd mina whether oath resaeds -
or say part thereof shaD be withheld m~der any dthe exeapdoos set f sth
JD snheeetion (b) of this section. end the barden is en the agency to s
ka action.' S U. S. C. 150aX4XB). The Itpshtive bistar7 aoegoivo-
any atab5.aba that is c wwo review world often be nerssmary and ap-
propri Za See S. Rep. No. 96-1200. p. 9 (1974).
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10 CLA a SIRS
closure will conceivably affect national security, much lees
that it reasonably could be expected to cause at least Wen-
able damage. It need not classify the information, much less
demonstrate that it has property been classified. Simllar1Y,
no court may review whether the source had, or would have
been to have had any interest in confidentiality, or whether
disclosure of the information would have any effect on na-
tional security. No court may consider whether the informs
tion is properly classified, or whether it its the categories of
the executive order. By choosing to litigate under Exemp-
tion 3. and by receiving this Court's blessing, the Agency has
cleverly evaded all these carefufy imposed congressional
requirements.'
If the class thus geed from judicial review were carefully
defined, this result eoncei slice ousense. It could
t from all the
mean that Congress had decided to
Amity's possible documents a class of material that may
always be protected, no matter what the scope of the existing
executive order. But the class that the Court
boundless. It is difficult to conceive of anything
~. E ve Order MOTs Ezempdon 1 a sup dMer to E:-
ampem L gives the m nn ' in which the CouK intapr'ts the National
Security Act esempom Lrlca eta predexesaae, the ~oootab ii MeAcC s
three dassideation 1evd, bat mom the P~ Order.
~'hty of identyia
dsui_ation m iooges requires a reasonable .
damage. Mea& the Lbel ?oon6denmr mow ahaa be applied to 1W
of wbieh tesaonabiy eoold be e:-
ftmatito the assautbc to the w1i" security .0 Liec t if Order i 6.
3 CT cause damn the new Order mot onty hells Iat*IIigema
S CFB 1 166 (1983). in addition . but it also e:taus a Pet
S=Pti" a loth tammatioe is conMdeadaL This predan shifts
fom the Agene7 the burden of Pi?vMg the P?s? ?D? uenee to as-
dM81 wcm*y of disdosu:e- As a result, it the Agency deb " integi-
geaee @wav? order the Eieeasive Order u broadly as the Coat debmea
the term in 1102(dX3). the Agency weed make but a basited showing to a
acct to mvohe Estmpdonn 1 for that natural In bgbt of this new Order.
the Cotes avid aonmrn for the national security consegoenas of a mar
rower desai6 of the tam is quite p =ft
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CIA a IM 11
Intefigence Agency might have within its many files that
might not disclose or enable an observer to discover some-
thing about where the Agency gathers information. Indeed,
even newspapers and public libraries, read maps and tele-
phone boob appear to 6II within the definition adopted by
the Court today. The result is to cast an irrebuttable pro-
nunption of secrecy over an expansive array of information in
Agency Ala, whether or not disclosure would be detrimental
to national security, and to rid the Agency of the burden of
malting individualized showings of compliance with an execu-
tive order. Perhaps the Court believes all Agency docu-
ments should be susceptible to withholding in this way. But
Congress, it must be recalled, expressed strong disagree-
ment by passing, and then amending, Exemption 1. In light
of the Court's ruling, the Agency may nonetheless circum-
vent the procedure Congress has developed and thereby un-
dermine this explicit effort to keep from the Agency broad
and anreviewable discretion over an expansive class of
information.
III
The Court today reads As own omceras into the single
phrase, ObuDigence :owes.' To justify its expansive read-
ing of these two words in the National Security Act the Court
exphim that the Agency most be wary. protect itself, and
not allow observers to learn either of its information re-
sources or of the topics q f is iatere. "Disclasm a 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," ante, at 17, the Court observes, and the "Intelli-
gena sore" exemption must bear the weight of that con-
am as well. That the Court points to no legislator or wit-
ness before Congress who expressed a concern for protecting
such information throw this provision is irrelevant to the
Court. That each of the examples the Court offers of mate-
rial that might disclose a topic of interest, and that should not
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CIA a M
be disclosed, could be protected through other existing statu-
tory provisions, is of no moment.' That the public already
knows all about the MKVLTRA project at issue in this ease,
except for the names of the researchers, and therefore that
the Court's concern about disclosure of the Agenefs O pics
of interest" argument is not appropriate this on, Is of
consequence. And Snafy, that the Agency now has virtu-
ally unlimited discretion to label certain information "secret,"
in contravention of Congress' explicit efforts to confine the
Agency's discretion both substantively and procedurally, is of
no importance. Instead, simply because the Court can think
of information that it believes should not be disclosed, and
that might otherwise not fall within this exemption, the
Court undertakes the task of interpreting the exemption to
cover that information. I cannot imagine the canon of statu-
tory construction upon which this reasoning is based.
Congress gave to the Agency considerable discretion to de-
cide for itself whether the topics of its interest should remain
secret, and through Exemption 1 it provided the Executive
with the means to protect such information. If the Agency
derides to classify the identities of non-confidential contrft-
ton of information so as not to reveal the subject matter or
kinds of interests it is pursuing, it may seek an Exemption 1
'For --via, the Coact --disdarze of the het that the
Agmey aobieibes to an obwze bat pubbd7 avahiable Eastern Ehievpean
teehaial jowmW ?emid thwart the Ageneys efforts to exploit its vabx as a
sea ce of iatefisexe information.' Ask, at 17; am Brief for Petitdooe s
in No. 83-lo?5. P. 3 Amt this method of obuinint iofasmsnon is
not protected by Exemption 1. through an wcu 'e order, it would sally
be protected through Exemption Is meorporatiarr of f 102(dX3) of the Na.
tional Sechaity Act That pvvown. to addition to protect-Mg lnteffseaee
Somas.- also protects t ae methods' and ruely encomeam co-
vet am= of obtaining idorma". the diadoswt of wbi h might dose
ass to attain kbxlt of lformatso . may, the feet that scan as
todividuals provide vsTe " intel>>;eaa Wamanon smell be
protected, we mete, at 17; Brill for Pedtiaoem is No. 33-lo-lb, p. 36, a. 36,
but again. beeaae it is a covert mesa of obtaining information. not be,-
cause the 'source of that iedormation needs or exp o confidendWkY.
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us-coNCu
s~--on a ~"
a- a
t :h0swo *4 is prove
with z zscad"- It filar types
m
C Congress bf p be witbbeld re WIl a'
of information that it b+ vs order. w~ is the e
s~tsnce of as ExecW ntly, the r Ants Aiefr m awls.
the AisaR7 employ SSee b0 5. C. % 4088 ( o soma, G&
cradma So. the WguaTation. Clara" r m'ta I J=el em tby
salarus, ornumbe" Of
nCY laformad s
cis th] }~cent~ral l a t e l l i ce ( ex e m p t t *
t4wh of
o Tit0T , 11 es fr os corder FOIA .
thus nal sues im 'at
~~ions Ti the pnbbc
the a that as to Cerjan Won In we Lave sb-
~nt In a Dears. la this case, that
says tip In yvo? or of of n no Congress Las ever deter
esnn-
90he1y no indi 1 f0 DOn that '~ ~nn1 be
the bey sLonld be the nest to sob' Coot Nevertiless y~ts for those of Con~,ms.
stitaLe its own pobcy i
TV sad ~Syt~?s Wa bthe
To the pow : for wams, who ~ he
1 p an ememptiO st a eon-
Aisne! based on sa b ? to disClOwsm Of "Ch
of the 'i to , opsO?:?~oc fear of
soot- That t that vdids, is ; cones
, why it Ole "Me dme the additional ' W ~~ send wbeme 01 utawrx The Coot of APP ' I beyevs TLaald be
bens more material sod remand
the r*leabe of rte, I Ot whit I deem to be the
fuWAMA. w
Caw for Wfm"irate ! '~?
Prow de&IUM
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