CENTRAL INTELLIGENCE AGENCY AND WILLIAM J. CASEY, DIRECTOR OF CENTRAL INTELLIGENCE, PETITIONERS V. JOHN CARY SIMS AND SIDNEY M. WOLFE No. 83-1075 In the Supreme Court of the United States October Term, 1983 On Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit Reply Brief for the Petitioners The most notable feature of the Memorandum in Opposition is that respondents do not even attempt to defend the court of appeals' definition of "intelligence sources." In the petition, we showed that the court of appeals' definition is without support in the language or legislative history of the National Security Act of 1947 or any other statute (Pet. 15-19). Respondents make no effort to answer our argument. Instead, respondents contend principally that the court of appeals will not, in the future, take seriously a definition it has repeatedly affirmed, and that the CIA can, in any event, manipulate other FOIA exemptions to reduce the damage caused by the court of appeals' definition of "intelligence sources." 1. Respondents repeatedly assert (see Memo. in Opp. 5-7) that the CIA need not rely on Exemption 3 of the FOIA because it can protect intelligence sources under Exemption 1, 5 U.S.C. 552(b)(1), which permits the government to withhold information properly classified under Exec. Order No. 12356, 47 Fed. Reg. 14874 (1982). But as this Court has recently ruled, the interpretation of an FOIA exemption should not be distorted because a different exemption may also apply to some of the same documents (see FBI v. Abramson, 456 U.S. 615, 629-630 (1982)). Exemption 1 and Exemption 3 are separate provisions that serve distinct purposes. The District of Columbia Circuit itself has recognized this point (see Gardels v. CIA, 689 F.2d 1100, 1107 (1982)). Exemption 3 and 50 U.S.C. 403(d)(3) constitute a congressional direction to the Agency to "protect() intelligence sources and methods from unauthorized disclosure." /1/ The existence of Exemption 1 is simply not a reason to thwart this congressional design. A Senate committee considering the effects of the FOIA on the CIA has recently made this point, which is in any event clear from the text of the statute itself (S. Rep. 98-305, 98th Cong., 1st Sess. 21 (1983)): The FOIA already exempts information concerning intelligence sources and methods from publication or disclosure. If properly classified, such information is exempt under subsection (b)(1) of the Act. Even if the information concerning sources and methods is unclassified, there is a separate exemption under subsection (b)(3) for such information so the (Director of Central Intelligence) can fulfill his statutory duty under the National Security Act to protect intelligence sources and methods. Moreover, respondents take a cavalier view of the Director's authority to classify documents when they suggest that it is a simple matter to classify any information that might impair the CIA's operations by revealing the identity of an intelligence source. Executive Order 12356 specifies particular criteria that information must meet in order to be classified; information cannot be classified at all unless its "disclosure * * * reasonably could be expected to cause damage to the national security" (Exec. Order No. 12356, Sec. 1.1(a)(3)). The disclosure of information that reveals the identities of intelligence sources might seriously interfere with the CIA's operations even if it does not satisfy this standard. /2/ The Director should not be placed in the position of being forced to classify information that reveals the identities of intelligence sources solely in order to prevent its public dissemination under the FOIA -- especially when Congress has specifically authorized him to withhold such information whether or not it is classified. It is not good policy, and it is not consistent with the philosophy of either the FOIA or Executive Order 12356, for the Director to have to classify information that he would otherwise leave unclassified in order to limit the damage caused by an interpretation of Section 403(d)(3) that has no foundation in the law. Indeed, the fact that the court of appeals' approach, if it prevails, might force the Director to classify information that would otherwise remain unclassified is an additional reason for this Court to review the court of appeals' decision. 2. Respondents err when they suggest (Memo. in Opp. 7-8) that the court of appeals overturned the district court's refusal to disclose MKULTRA researchers because those researchers were engaged in an activity that did not really involve the gathering of intelligence. The district court specifically rejected respondents' contention that MKULTRA research was not "needed to perform the CIA's intelligence function" and ruled that the Agency "could reasonably determine that this research was needed for its intelligence function" (Pet. App. 22a-23a). The court of appeals did not question that ruling. Thus, the premise of the court of appeals' decision was that the researchers were sources of intelligence information; but the court ruled that their identities would nonetheless be subject to disclosure. It is for precisely that reason that the court's decision is so inconsistent with Congress's intentions and poses a threat to the CIA's operations. 3. Respondents make the related contention (Memo. in Opp. 7-8) that this case is an aberration and that in the future the court of appeals' definition will not be applied if doing so would cause the identities of intelligence sources to be revealed. Although we would like to be able to share respondents' view, there is no basis for their confident prediction. As we pointed out in the petition, in Fitzgibbon v. CIA, Civil Action No. 79-0956 (D.D.C. Nov. 10, 1983), motion for reconsideration pending, Judge Greene ruled that the court of appeals' decision in this case required the disclosure of CIA sources in the Dominican Republic who provided information about the Trujillo regime -- surely a clear example of intelligence sources of the kind that Congress wished to protect (see Pet. 11 n.2, 15). Respondents make no mention of Fitzgibbon. Moreover, we determined not to seek review of Sims I in part because we believed that the court of appeals might not have fully appreciated the ramifications of the abstract definition it propounded in that decision. /3/ When the case came before the court of appeals the second time, we urged the court to reconsider the portion of the Sims I definition that leads to the unacceptable consequences we have described. Judge Bork made similar arguments in his dissenting opinion (Pet. App. 13a-15a). The court of appeals' response was: (i) to note that the Sims I definition had been endorsed by two other panels of the District of Columbia Circuit (Pet. App. 4a & n.6, citing Holy Spirit Association for the Unification of World Christianity v. CIA, 636 F.2d 838, 844 (1980), vacated, 455 U.S. 997 (1982), and McGehee v. CIA, 697 F.2d 1095, 1112 n.78 (1983)); (ii) to dismiss our suggestion that the Sims I definition be reconsidered as "either disingenuous or obtuse" (Pet. App. 4a); and (iii) to apply that definition extremely rigidly, to the point of ordering that the Agency be required to break explicit promises of confidentiality (Pet. App. 6a). It is clear, therefore, that the court of appeals is entirely serious about enforcing its definition of "intelligence sources." 4. Respondents repeatedly assert -- without a single citation to the petition -- that the CIA is seeking "unfettered" and "unreviewable" discretion to decide what constitutes an intelligence source. See, e.g., Memo. in Opp. 5 ("According to the CIA, even judicial review cannot be countenanced"); id. at 9 ("(the Agency's) thinly-veiled plea for * * * unreviewable authority"); id. at 10-11 & n.2; id. at 12 ("untrammeled and unreviewable authority"). The Agency makes no such claim. In any event, respondents' assertions address an issue not involved in this case. This case concerns the definition of the term "intelligence sources." The agency's position is that that phrase should be given its plain meaning -- sources of intelligence information. This case does not concern the degree of discretion the Agency should be given in determining whether a particular person or institution is a source of intelligence information. We would note, however, that the Agency freely concedes that such determinations are reviewable in court according to a proper standard of review. 5. Respondents further suggest (Memo. in Opp. 12-13) that proposed legislation now being considered by Congress will solve the problems created by the court of appeals' definition of "intelligence sources." The proposed legislation to which respondents refer, however, is addressed to an entirely different issue. The bills in question -- S. 1324, 98th Cong., 1st Sess. (1983), H.R. 3460, 98th Cong., 1st Sess. (1983), and H.R. 4431, 98th Cong., 1st Sess. (1983) -- provide that, while the FOIA will continue to apply to the CIA in general, certain CIA operational files need not be searched in response to an FOIA request, no matter what kinds of information they contain (subject to certain specific exceptions). The proponents of this legislation, including the Agency, have pointed out that decisions whether to disclose material from these files must be made with painstaking care by highly trained intelligence officers who know the potential significance of apparently innocuous pieces of information, thus taxing the Agency's resources and impairing its ability to process all FOIA requests promptly. At the same time, the potential benefit to the public is slight, because operational files are highly sensitive and in the end the FOIA requires the disclosure of very little information from them. The Agency has urged that in view of this balance of costs and benefits, and of the danger of an inadvertent disclosure of sensitive information from these files, it is more sensible for Congress to provide that operational files need not be searched at all. See, e.g., S. Rep. 98-305, at 10-12; S. 1324, An Amendment to the National Security Act of 1947: Hearings Before the Senate Select Comm. on Intelligence, 98th Cong., 1st Sess. 5-9 (1983) (testimony of John McMahon). Even if the proposed legislation were to pass, which is far from certain, it would not solve the problems created by the court of appeals' definition. That is because information revealing the identities of intelligence sources is not confined to the operational files covered by the bills; it is found in certain nonoperational CIA files as well. Moreover, the concerns that have given rise to this proposed legislation are quite distinct from the problems posed by the court of appeals' decision. Indeed, in considering these bills, Congress has assumed that Exemption 3 broadly exempts from the FOIA all information that would disclose the identities of intelligence sources. See, e.g., S. Rep. 98-305, at 13 ("Virtually all of (the) information (in operational files) * * * has always been withheld from FOIA release by exemption (b)(1) for classified information and exemption (b)(3) for information pertaining to intelligence sources and methods"); id. at 21 (quoted at page 3, supra); id. at 21-22 ("(I) nformation contained solely in these file() systems has been protected thus far from release to the public under exemptions (b)(1) and (b)(3) of the FOIA."); id. at 22. See also S. 1324, Sec. 2(a)(10). The court of appeals' definition, therefore, undercuts the very premise on which the proposed legislation is based. 6. Finally, respondents suggest (Memo. in Opp. 14) that review is unnecessary because the courts below have not yet finally ordered that any information be disclosed. But we are seeking review because of our concern with the court of appeals' definition of "intelligence sources," not solely because of the application of that definition to particular documents. As we have noted, the court of appeals has unequivocally affirmed its definition, and that definition will govern the Agency's relationship to its sources and its ability to keep its sources secret no matter what the final outcome of this particular case. We note that in the past the Court has not hesitated to grant certiorari in FOIA cases in an interlocutory posture where similar considerations were present. See, e.g., United States Department of State v. Washington Post Co., cert. granted, No. 82-1925 (Oct. 3, 1983), vacated and remanded with instructions to dismiss the complaint as moot (Nov. 14, 1983); FTC v. Grolier, Inc., No. 82-372 (June 6, 1983); FAA Administrator v. Robertson, 422 U.S. 255 (1975). For these reasons and the reasons stated in the petition, it is respectfully submitted that the petition for a writ of certiorari should be granted. REX E. LEE Solicitor General FEBRUARY 1984 /1/ Indeed, the protection for "intelligence sources and methods" was added by Congress itself to the bill that became the National Security Act of 1947; it was not part of the Administration draft. Compare H.R. 2319, 80th Cong., 1st Sess. Sec. 202 (1947), with H.R. 4214, 80th Cong., 1st Sess. Sec. 105(d)(3) (1947); see H.R. Rep. 961, 80th Cong., 1st Sess. 1-4 (1947). Respondents do not deny that the function of Exemption 3 is to incorporate by reference the standards specified in other statutes (see Pet. 18); they do not, and cannot, deny that 50 U.S.C. 403(d)(3) is one of the statutes incorporated by reference in Exemption 3 (see Pet. 18); and, as we have said, they suggest no reason to believe that Congress intended the phrase "intelligence sources and methods" in Section 403(d)(3) to have anything other than its plain meaning. Respondents' argument that, under our approach, Section 403(d)(3) could not be an Exemption 3 statute (Memo. in Opp. 10-11) is therefore insubstantial. /2/ For example, a sensitive CIA source might provide information from commercial documents available in a foreign country. That information is theoretically in the public domain, and the Director might determine that he is unable to classify it. But if the CIA disclosed that it possessed such information, it might well reveal the identity of the source. /3/ Respondents criticize us for not seeking review of Sims I (Memo. in Opp. 13-14) -- a criticism that is quite inconsistent with their argument that we are overreacting to what the court of appeals has done in this case.