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 The Solicitor General, on behalf of the Central Intelligence Agency and the Director of Central Intelligence, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G Appendix H OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-16a) is reported at 709 F2.d 95. The opinions and order of the district court (App., infra, 21a-34a) are not reported. An earlier opinion of the court of appeals (App., infra, 35a-65a) is reported at 642 F.2d 562. One of the earlier opinions of the district court (App., infra, 66a-72a) is reported at 479 F. Supp. 84; the other earlier opinion of the district court (App., infra, 73a-97a) is not reported. JURISDICTION The judgment of the court of appeals was entered on June 10, 1983 (App., infra, 19a-20a). A petition for rehearing was denied on August 17, 1983 (App., infra, 17a-18a). On November 9, 1983, the Chief Justice extended the time in which to file a petition for a writ of certiorari to December 15, 1983, and on December 5, 1983, the Chief Justice further extended the time in which to file a petition for a writ of certiorari to December 29, 1983. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED Portions of the Freedom of Information Act, 5 U.S.C. 552, the National Security Act of 1947, 50 U.S.C. 401 et seq., and the Central Intelligence Agency Act of 1949, 50 U.S.C. 403a et seq., are reproduced at App., infra, 98a-99a. QUESTION PRESENTED Whether the Central Intelligence Agency must disclose the identity of a source of intelligence information under the Freedom of Information Act, despite Exemption 3 of the FOIA and Section 102(d)(3) of the National Security Act of 1947, if the Agency cannot demonstrate that it was necessary to guarantee confidentiality in order to obtain the kind of information that the source supplied. STATEMENT 1. Respondents, invoking the Freedom of Information Act (FOIA), 5 U.S.C. 552, filed a request with the Central Intelligence Agency seeking certain information about a CIA project known as MKULTRA. MKULTRA was initiated in the 1950's in response to concern about foreign nations' "brainwashing" techniques (App., infra, 73a). MKULTRA "involved research into 'chemical, biological and radiological materials capable of employment in clandestine operations to control human behavior'" (id. at 21a; footnote and citation omitted). This research, funded by the CIA, was conducted by a large number of private scientists, in the United States and abroad, affiliated with universities, research foundations, and similar institutions (id. at 66a, 89a). At least 80 institutions and 185 private researchers participated (id. at 36a). The nature of MKULTRA, including allegations of abuses connected with it, was explored in 1963 in a report from the Inspector General of the CIA to the Director of Central Intelligence (C.A. App. 118-145) and subsequently by congressional committees and a Presidential commission. See S. Rep. 94-755, 94th Cong., 2d Sess., Bk. I, at 389-392 (1976); Report to the President by the Commission on CIA Activities Within the United States, 226 (June 1975). See also Human Drug Testing by the CIA, 1977: Hearings on S. 1893 Before the Subcomm. on Health and Scientific Research of the Senate Comm. on Human Resources, 95th Cong., 1st Sess. (1977); Project MKULTRA, the CIA's Program of Research in Behavioral Modification: Joint Hearing Before the Select Comm. on Intelligence and the Subcomm. on Health and Scientific Research of the Senate Comm. on Human Resources, 95th Cong., 1st Sess. (1977). Respondents sought the grant proposals and contracts awarded under the MKULTRA program and the names of the institutions and individuals that performed research. The CIA made available to respondents all of the grant proposals and contracts. The CIA also contacted the institutions that had performed research, and approximately two-thirds of them agreed to allow their identities to be disclosed. The Agency accordingly disclosed them to respondents. App., infra, 39a, 73a-74a. The CIA cited Exemptions 3 and 6 of the FOIA, 5 U.S.C. 552(b)(3) and (6), as the bases for not releasing the names of the other institutions and the individual researchers. Only the Exemption 3 claim is now at issue. Exemption 3 of the FOIA provides that an agency need not disclose "matters that are * * * specifically exempted from disclosure by statute * * * provided that such statute * * * refers to particular types of matters to be withheld" (5 U.S.C. 552(b)(3)(B)). The statute on which the CIA relied is Section 102(d)(3) of the National Security Act of 1947, 50 U.S.C. 403(d)(3), which provides in part: (T)he Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure * * *. 2. Respondents then brought this action under the FOIA in the United States District Court for the District of Columbia. See 5 U.S.C. 552(a)(4)(B). They sought to compel disclosure of the names withheld by the CIA. The district court ordered disclosure of these names, apparently reasoning that the term "intelligence sources" in 50 U.S.C. 403(d)(3) did not include the MKULTRA researchers, or if it did, that Section 403(d)(3) was not specific enough to qualify as an Exemption 3 statute (see App., infra, 77a-79a). The court of appeals vacated the district court's order and remanded for reconsideration (App., infra, 35a-65a). The court observed that it had consistently held that Section 403(d)(3) "qualifies as a withholding statute under Exemption 3" (App., infra, 44a). The court also noted that in its previous decisions it had assumed that the phrase "intelligence sources and methods" has "a plain meaning" (ibid.). But upon further consideration of the "relevant statutory enactments" (see id. at 47a) -- which the court identified as the FOIA, the National Security Act of 1947, and the Central Intelligence Agency Act of 1949, 50 U.S.C. 403a et seq., (App., infra, 47a) -- the court concluded that the phrase "intelligence sources and methods" is in fact "ambiguous" (id. at 49a) and must be interpreted in a way that reflects "Congress' sensitivity to the need for discrimination in identifying particular types of matters exempted from disclosure" (id. at 47a). The court of appeals acknowledged that the CIA'S proposed definition of "intelligence sources" -- essentially, individuals, or entities that provide intelligence information (see App., infra, 46a) -- was a supportable interpretation of the phrase. In fact, the court remarked that the agency's definition was of "equal plausibility" with the definition that the court attributed to respondents -- "that persons are * * * protected intelligence sources only if nondisclosure of their identities would * * * be justifi(ed) on national security grounds" (id. at 49a). But instead of accepting either of these definitions the court decided that "(a)nalysis should * * * focus on the practical necessity of secrecy * * * (and should) avoid an overbroad discretionary standard" (id. at 50a). The court then concluded (ibid.): (A)n "intelligence source" is a person or institution that provides, has provided, or has been engaged to provide the CIA with information of a kind the Agency needs to perform its intelligence function effectively, yet could not reasonably expect to obtain without guaranteeing the confidentiality of those who provide it. 3. On remand, the district court specifically rejected respondents' contention that the MKULTRA research was not "needed to perform the CIA'S intelligence function" (App., infra, 22a). The court explained (id. at 22a-23a): "In view of the agency's concern that potential foreign enemies could be engaged in similar research and the desire to take effective countermeasures, * * * (the Agency) could reasonably determine that this research was needed for its intelligence function." The district court accordingly concluded that the "crucial issue" was the application of the court of appeals' requirement that the CIA show that it could not have reasonably expected to obtain the information supplied by the sources in issue without guaranteeing confidentiality to them (App., infra, 23a). The court acknowledged that the Agency considered the relationships between it and the MKULTRA researchers to be confidential (ibid.). The court further noted that "(f)or understandable reasons, the Agency wished its interest in this subject matter kept secret, and feared that disclosure would jeopardize its ability to continue its research" (id. at 24a). But the court ruled that this was not sufficient to satisfy the court of appeals' test because "the chief desire for confidentiality was on the part of the CIA. * * * (C)onfidentiality was normally guaranteed * * * solely to protect the CIA" (ibid.). After reviewing the Agency's submissions about particular cases, the district court noted that some of the researchers had sought, and received, express promises of confidentiality from the Agency. The court ruled that the identities of these researchers need not be disclosed. App., infra, 26a. In total, the court ordered the disclosure of the names of about half of the researchers and all of the institutions that had not already been revealed (id. at 21a-34a). 4. Both sides appealed, and a divided panel of the court of appeals reversed the district court's "determination regarding which of the individual researchers satisfy the 'need-for-confidentiality' portion of the definition of 'intelligence source' promulgated in" the court of appeals' earlier opinion. The court affirmed the district court's ruling in other respects. App., infra, 11a. The court of appeals peremptorily rejected the Agency's suggestion that it reconsider the portion of the definition requiring the Agency to show that it had to guarantee confidentiality in order to obtain the information supplied by a source (App., infra, 4a). Instead, the court of appeals criticized the district court for not following this aspect of the definition closely enough. The court of appeals remarked that "the (district) court's attention to questions of this order was deflected by its interest in whether the agency had, in fact, promised confidentiality to individual researchers" (id. at 5a). The court held that the district court's decision automatically to exempt from disclosure those researchers to whom the CIA had promised confidentiality was erroneous: "Proof that the CIA did or did not make promises of secrecy (either express or tacit) to specific informants * * * (cannot) be dispositive of the question whether a given informant qualifies as an 'intelligence source'" (id. at 6a). Specifically, the court of appeals ruled that even an intelligence source who received an express promise of confidentiality would have to be revealed if the source requested such a promise only because he was "unreasonably and atypically leery of providing the agency with innocuous information" (App., infra, 6a). The court reasoned that "if the agency readily and openly could have obtained, from other sources, data of the sort (such a source) provided, he would not constitute an 'intelligence source'" (ibid.; footnote omitted). The court also remarked that if the Agency could refuse to disclose the identities of all sources of intelligence that requested confidentiality, it "would (be) * * * easy for the agency to seek shelter in exemption 3 by simply 'suggesting' to all of the persons with whom it deals that they sign a form expressing their desire for secrecy" (id. at 6a n.7). Judge Bork wrote a separate opinion, concurring in part and dissenting in part (App., infra, 12a-16a). He dissented from the majority's conclusion that the FOIA sometimes requires the CIA to break a promise of confidentiality it has given to an intelligence source. Judge Bork stated (id. at 13a-14a): Many persons who expect pledges of confidentiality to be honored will be shocked to learn, long after they give information in return for such a promise, that their identities will be disclosed. * * * (I)n this very case, retrospective application of (the majority's definition) * * * may be profoundly unjust. It will certainly be so if it results in the disclosure of the identities of * * * researchers who fully, and justifiably, expected the government to keep its commitment and protect them from the wide range of dangers that may have concerned them when they insisted on confidentiality. This is not an honorable way for the government of the United States to behave, and the dishonor is in no way lessened because it is mandated by a court of the United States. Judge Bork also urged that by authorizing courts to force the CIA to break its promises of confidentiality, the majority's approach "produces pernicious results. * * * Because of the ever-present possibility of a future breach of trust ordered by the judiciary under the vague standard laid down today, the CIA will probably lose many future sources of valuable intelligence" (App., infra, 13a-14a). Judge Bork reasoned that under the court of appeals' definition of "intelligence sources," "individuals who give information to the CIA on the understanding that their names will be kept secret cannot rely on the promise of confidentiality if the information turns out to be the sort the CIA can get elsewhere without promising secrecy, something the sources of the information will often not be in a position to know. There is, moreover, no guarantee that a judge, examining the situation years later and deciding on the basis of a restricted record, will come to an accurate conclusion" (id. at 13a). Judge Bork then concluded (ibid.): The CIA and those who cooperate with it need and are entitled to firm rules that can be known in advance rather than vague standards whose application to particular circumstances will always be subject to judicial second-guessing. Our national interest, which is expressed in the authority to keep intelligence sources and methods confidential, requires no less. Judge Bork also criticized other aspects of the court of appeals' definition of "intelligence sources." Judge Bork urged that there is "no reason to think that section 403(d)(3) was meant to protect sources of information only if secrecy was needed in order to obtain the information." Specifically, Judge Bork explained, "(t)he mere fact that the CIA pursues certain inquiries tells our adversaries much that there is no reason to think Congress intended them to know." He reasoned that "(o)ne need not be an expert in intelligence work to know that it is often possible to deduce what a person is doing, thinking, or planning by knowing what question he is asking or what information he is gathering. That is true even when the answers and information are publicly available." App., infra, 15a. The court of appeals denied the CIA's petition for rehearing and suggestion of rehearing en banc. Judges Wilkey, Bork, and Scalia voted in favor of rehearing en banc. App., infra, 17a-18a. REASONS FOR GRANTING THE PETITION The court of appeals' definition of "intelligence sources" reflects an abstract and unrealistic approach that fails to appreciate the extraordinary importance of protecting the identities of those who provide intelligence information to the CIA and the CIA's many legitimate reasons for maintaining the confidentiality of such sources. The court of appeals would require the CIA to reveal its sources of intelligence in many instances in which such disclosures would seriously impair the Agency's ability to perform its mission. For example, the court of appeals' definition would require the Agency, in certain circumstances, to betray explicit promises of confidentiality; to disclose the public sources it is exploiting, even if doing so will reveal the nature of highly sensitive CIA investigations and projects; and possibly to disclose the identities of even very sensitive sources, if those sources also provide information that the CIA could have obtained without promising confidentiality. Even apart from the intelligence sources that would actually be compromised because of the court of appeals' definition, that definition would create great uncertainty about the Agency's ability to protect sources and to promise protection to potential sources. Such uncertainty itself would have serious practical effects on the Agency's ability to gather and analyze intelligence. "The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service." Snepp v. United States, 444 U.S. 507, 509 n.3 (1980), quoted in Haig v. Agee, 453 U.S. 280, 307 (1981) (emphasis added). For these reasons, the court of appeals' definition threatens to cause significant practical harm to the nation's intelligence operations. The court of appeals' definition is also wholly without foundation in the law. The National Security Act makes the Director of Central Intelligence responsible for maintaining the secrecy of "intelligence sources." That term should be given its plain meaning -- sources of intelligence. That is, the Director of Central Intelligence is responsible for protecting all sources of information in which the CIA is legitimately interested. There is no basis for the court of appeals' more restrictive definition. The court appears to have relied on what it considered to be the pro-disclosure policies of the FOIA instead of interpreting the National Security Act of 1947 -- a statute passed in a different era, for different purposes, by a Congress that was concerned to assure the secrecy of the very kinds of matters that the court of appeals would now make public. Especially because any party seeking CIA records can take advantage of the court of appeals' definition by bringing suit in the District of Columbia Circuit (see 5 U.S.C. 552(a)(4)(B)), further review is warranted. 1. a. The court of appeals' approach would require the government to disclose its intelligence sources in many circumstances in which it is entirely clear that disclosure will interfere with the Agency's ability to carry out its mission. Perhaps the most egregious example is the one explicitly avowed by the court of appeals in its second opinion. As that opinion states, the court of appeals' definition would require the CIA to betray an express promise of confidentiality if a court determines, after the fact, that the Agency could have obtained the same type of information without giving such a promise -- or, in the court of appeals' words, if a court decides that the intelligence source to whom the promise was given sought the promise only because he was "unreasonably and atypically leery" of cooperating with the CIA (App., infra, 6a). It is readily apparent that if the CIA is forced to break promises of confidentiality, its ability to recruit intelligence sources will be impaired. This will be true even if promises are broken only to sources that a judge decides were "unreasonably and atypically leery" about cooperating with the CIA. A person who decides to cooperate with the CIA by becoming a source of intelligence often incurs a substantial risk; if his cooperation becomes known, he may face not only great embarrassment but far more severe consequences. See Haig v. Agee, 453 U.S. at 285 & n.7. Consequently, in order to induce persons to cooperate, the CIA frequently must provide as absolute an assurance of confidentiality as it possibly can. /1/ "The continued availability of * * * (intelligence) sources depends upon the CIA's ability to guarantee the security of information that might compromise them and even endanger (their) personal safety" (Snepp v. United States, 444 U.S. at 512). Few things are likely to have as devastating an impact on the Agency's ability to recruit intelligence sources as the perception that the Agency cannot keep its promises because a court may someday order it to break them. Many potential intelligence sources -- especially those who are not American citizens -- are likely to perceive courts as unpredictable institutions that are influenced by concerns that have little in common with the world in which the potential source and his CIA contact must operate. A potential source is also likely to realize that a court's decision whether to reveal his cooperation with the Agency may occur well in the future, at a time when the source's concern for confidentiality may seem less understandable to everyone except the source himself. It will certainly not reassure a potential intelligence source to learn that a court will order his identity revealed only if it determines that he was "atypically or unreasonably leery" and that the Agency could have obtained the same information from a public source. An intelligence source will "not be concerned with the underlying rationale for disclosure of" his cooperation with the CIA if his cooperation was secured "under assurances of confidentiality" (Baldrige v. Shapiro, 455 U.S. 345, 361 (1982)). Moreover, a court's determination whether an intelligence source will be harmed if his identity is revealed will often require complex political, historical, and psychological judgments, sometimes about societies very different from our own. /2/ There is no reason for anyone -- especially a potential intelligence source whose life may be at stake -- to have great confidence in a court's ability to make those judgments correctly. For several reasons, it is no answer to say that even under the court of appeals' definition, few courts are likely actually to order the government to breach an express promise or otherwise to disclose a sensitive intelligence source. First, the court of appeals' second opinion shows that it is entirely serious about ordering the disclosure of intelligence sources, even in the extreme case in which there has been an express promise of confidentiality. And, as we have noted (page 11 note 2, supra), a district court applying the court of appeals' definition has already ordered the disclosure of certain foreign intelligence sources. More important, there is no question that the court of appeals' definition greatly increases the likelihood of a court-ordered disclosure; and the possibility of such a disclosure alone can have extremely damaging effects, because it gives rise to the perception that the CIA cannot be trusted to keep a source's identity secret. As this Court has recognized in both the intelligence area and other contexts, what is crucial is not only whether the government has in fact betrayed a confidence but "the appearance that confidentiality ha(s) been breached" or might be breached (Baldrige v. Shapiro, 455 U.S. at 361 n.17 (emphasis in original)). "An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all" (Upjohn Co. v. United States, 449 U.S. 383, 393 (1981)). This is especially true in the area of intelligence gathering, where the risks are enormous. By creating the appearance that the CIA cannot protect its sources -- and by making it clear that the Agency will sometimes be required to breach even an explicit promise of confidentiality -- the court of appeals' opinion creates a serious potential threat to the CIA's ability to perform the important task assigned to it by Congress. b. Even if all of these concerns were unjustified -- even if the court of appeals' definition had no effect on the Agency's ability to recruit intelligence sources -- that definition would still threaten serious potential harm to the Agency's interests. That is because -- as Judge Bork pointed out -- the court of appeals' definition explicitly requires the Agency to reveal any public sources of intelligence, since a guarantee of confidentiality is not needed to obtain information from a public source. Disclosures of the public sources that the Agency is exploiting can damage the Agency in obvious ways. As Judge Bork explained, another government can learn a great deal about "what subjects (are) of interest to the CIA" by examining the public sources of information that the Agency is using: One need not be an expert in intelligence work to know that it is often possible to deduce what a person is doing, thinking, or planning by knowing what question he is asking or what information he is gathering. That is true even when the answers and information are publicly available. The mere fact that the CIA pursues certain inquiries tells our adversaries much that there is no reason to think Congress intended them to know. App., infra, 15a. The facts of this case themselves suggest an example. When the CIA decided to investigate "brainwashing" and the countermeasures that might be taken, it might well have turned to sources, such as journals and ongoing research projects, that are available to the public. But a foreign government that learned the sources that the Agency was consulting would have been able to infer both the general nature of the CIA's project and the directions that its research was taking. Similarly, the court of appeals, in its first opinion, suggested that the excessive breadth of the CIA's proposed definition of "intelligence sources" was revealed by the Agency's acknowledgment that its definition would "apply even to periodicals -- including Pravda and the New York Times -- from which (the Agency) culls information that informs its view of foreign nations and their policy intentions" (App., infra, 46a). But the disclosure that the CIA consults Pravda and the New York Times is innocuous not because those periodicals are publicly available but because it is the disclosure of a fact -- the fact that the Agency consults these newspapers -- that is already commonly assumed to be true. An obscure Eastern European technical journal might also be available to members of the public; but disclosure of the fact that the CIA subscribes to that journal could easily thwart the CIA's efforts to exploit its value as an intelligence source. /3/ In this respect, as well, the court of appeals' definition is harmful not only because it will force certain disclosures but because of the prospective effect it will have on the CIA's operations. If the Agency knows that it will be required to reveal its sources of public information in response to a proper FOIA request, it can be expected to alter its techniques so as to reduce the damage that such a disclosure might cause. In this way, the court of appeals' definition will force the CIA to depart from what it considers the best use of "intelligence sources and methods" out of concern that some of those sources and methods might become public. This is precisely what Congress was seeking to avoid when it authorized the Director of Central Intelligence to maintain the secrecy of intelligence sources and methods. c. Finally, the court of appeals apparently failed to recognize that many intelligence sources will provide the CIA with both highly sensitive information -- of a kind that would never be supplied without a promise of confidentiality -- and public or "innocuous" information that the Agency could have obtained elsewhere without guaranteeing secrecy. For example, a source in a foreign nation might supply, in addition to much sensitive information, a report of a crop failure that American journalists also learned about and reported in newspapers. If an FOIA request were then filed for all sources of information about the crop failure, the court of appeals' definition might be interpreted to require the Agency to disclose its relationship with the sensitive foreign source -- even though that disclosure would be likely to damage both the Agency and the source. A district court applying the court of appeals' definition has recently interpreted it in precisely this way (Fitzgibbon v. CIA, Civil Action No. 79-0956 (D.D.C. Nov. 10, 1983), slip op. 23 n.35, motion for reconsideration pending): Under (the court of appeals' definition), a document reporting on a conversation between a CIA agent and a source on a wholly innocuous subject would not be protected even if the source is a highly placed official of a government hostile to the United States. Because of its innocuousness, the information presumably could have been obtained from any number of individuals without a promise of confidentiality * * *. While we do not acquiesce in this interpretation of the court of appeals' opinion, the opinion is clearly susceptible of such a reading; obviously, even a possibility that such disclosures might occur would seriously damage the government's ability to gather intelligence. 2. a. The court of appeals' definition is also wholly without foundation in the law. The court did not appear to deny that the MKULTRA researchers were, literally, sources of intelligence; the district court specifically ruled that the Agency "could reasonably determine that (the MKULTRA) research was needed for its intelligence function" (App., infra, 22a-23a), and the court of appeals did not question this ruling. Thus, the MKULTRA researchers were "intelligence sources" within the literal meaning of that term. That should have been the end of the inquiry. 50 U.S.C. 403(d)(3) protects "intelligence sources and methods from unauthorized disclosure." There is no reason to believe that Congress meant these words to have something other than their plain meaning -- that all sources of intelligence are protected from disclosure. /4/ Congress did not say -- as the court of appeals would suggest -- that the Director of Central Intelligence is authorized to protect intelligence sources only if such protection is needed to obtain information that otherwise could not be obtained. Nor did Congress say that only confidential or nonpublic intelligence sources are protected. Cf. 5 U.S.C. 552(b)(7)(D); 5 U.S.C. 552a(k)(2) and (5). Congress simply protected all sources of intelligence. In fact, the legislative history of Section 403(d)(3) shows that Congress was specifically made aware of the kinds of intelligence sources that the court of appeals' definition would require to be disclosed, and Congress did not exclude such sources from the protection of Section 403(d)(3). General Vandenberg, who had been Director of the Central Intelligence Group, the CIA's predecessor (see 11 Fed. Reg. 1337 (1946)), explained to a Senate committee considering the bill that became the National Security Act that "roughly 80 percent of intelligence should normally be based" on "the great open sources of information * * * such things as books, magazines, technical and scientific surveys, photographs, commercial analyses, newspapers, and radio broadcasts, and general information from people with a knowledge of affairs abroad." National Defense Establishment: Hearings on S. 758 Before the Senate Comm. on Armed Services, 80th Cong., 1st Sess., Pt. 3, 492 (1947). Indeed, General Vandenberg asserted that this kind of intelligence had been neglected before World War II and urged that it be a principal concern of the post-war agency (ibid.). Thus, when Congress gave the Director of Central Intelligence unequivocal authority to "protect() intelligence sources and methods from unauthorized disclosure," it had previously been informed by the Director's predecessor that the great preponderance of intelligence sources would be public sources. In these circumstances, Congress must have intended the Director's authority to extend to public sources. Similarly, Admiral Inglis, then Chief of Naval Intelligence, testified in executive session hearings that were only recently declassified (National Security Act of 1947: Hearings on H.R. 2319 Before the House Comm. on Expenditures in the Executive Departments, 80th Cong., 1st Sess. (1947)), that intelligence agents in foreign countries are often used to "confirm or not what we have deduced from * * * Russian propaganda broadcasts" (id. at 63). Thus, Congress, unlike the court of appeals, must have recognized that highly secret intelligence sources will sometimes also report information that the CIA can obtain, or has obtained, from open sources. It is inconceivable that Congress, after having received Admiral Inglis's testimony, would have decided to deny the Director of Central Intelligence the authority to protect agents who function in this way. b. The court of appeals' rationale for its restrictive definition of "intelligence sources" is unclear. The court appeared to believe that its definition was "functional" and "focus(ed) on the practical necessity of secrecy" (App., infra, 50a). But as we have shown -- and as Congress was made aware -- secrecy can be a "practical necessity" in many circumstances in which the court of appeals would order disclosure. The court of appeals' implicit premises -- that the only reason to maintain the secrecy of a source is to ensure that it will continue to provide information, and that it is therefore unnecessary to protect a source if the information it supplies is available elsewhere -- are simply incorrect. Secrecy in the intelligence area has many other functions. The court of appeals also suggested that 50 U.S.C. 403g was relevant to determining the scope of Section 403(d)(3). Section 403g exempts the CIA from "the provisions of any * * * law which require(s) the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency * * *." See App., infra, 99a. But Section 403g deals only with employees of the CIA, and many of the most sensitive sources are not Agency employees. Thus, it cannot plausibly be suggested that Section 403g exhausts the categories of information about intelligence sources that the Director is authorized to protect. Indeed, the legislative history of Exemption 3 of the FOIA explicitly mentions Section 403(d)(3) -- not just Section 403g -- and shows that Congress specifically viewed Section 403(d)(3) as a principal example of the kind of statute to which Exemption 3 refers. See H.R. Rep. 94-880 (Pt. II), 94th Cong., 2d Sess. 15 n.2 (1976); H.R. Rep. 93-1380, 93d Cong., 2d Sess. 12 (1974); S. Rep. 93-854, 93d Cong., 2d Sess. 16 (1974). See also S. Rep. 98-305, 98th Cong., 1st Sess. 7 n.4 (1983). In fact, the breadth of Section 403g shows Congress's acute concern to keep all aspects of the CIA's operations confidential. Under Section 403g, for example, it is plain that MKULTRA researchers who happened to be CIA employees need not be disclosed. c. But the court of appeals' most fundamental error was to permit what the court considered to be the pro-disclosure philosophy of the FOIA to influence its interpretation of Section 403(d)(3) (see, e.g., App., infra, 41a-45a, 47a, 50a). This approach is wholly misconceived. Exemption 3 "incorporat(es) by reference exemptions contained in (the) * * * statutes" it identifies. H.R. Conf. Rep. 94-1441, 94th Cong., 2d Sess. 14 (1976); see id. at 25. The court of appeals acknowledged that 50 U.S.C. 403(d)(3) is an Exemption 3 statute (App., infra, 44a); /5/ as we have noted, the legislative history of Exemption 3 establishes that proposition beyond any doubt. Thus, the only question is what Congress intended by use of the term "intelligence sources and methods" when it enacted 50 U.S.C. 403(d)(3). Section 403(d)(3) was passed in 1947 -- a time when the prevailing attitudes toward both secrecy and the intelligence services were far different from what they were when the FOIA was enacted and amended. The court of appeals identified nothing in the language or legislative history of Section 403(d)(3) suggesting that Congress intended to depart from the plain meaning of the term and adopt the restrictive definition that the court devised. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General DAVID A. STRAUSS Assistant to the Solicitor General ROBERT E. KOPP LEONARD SCHAITMAN Attorneys DECEMBER 1983 /1/ The assurance of confidentiality given to an intelligence source is, of course, seldom recorded in writing, and often it is not even explicit. It is usually so obvious to all concerned that the source wants to remain confidential that no explicit understanding is needed; an assurance of confidentiality is implicit in the relationship between the Agency and the source. For this reason, the practical damage caused by the court of appeals' definition would not be greatly reduced even if it were amended so as to require courts to honor fully explicit promises of confidentiality. In any event, the court's most recent opinion -- in particular, its criticism of the district court and its rejection of Judge Bork's position -- constitutes an unequivocal refusal to consider such an amendment. Moreover, the CIA obtains much valuable intelligence from unwitting sources -- sources who reveal information to a person who is, unbeknownst to the source, a CIA contact. It is obviously artificial to analyze the CIA's interest in protecting the identities of such sources in terms of assurances of confidentiality. /2/ In Fitzgibbon v. CIA, Civil Action No. 79-0956 (D.D.C. Nov. 10, 1983), motion for reconsideration pending, for example, a district court applying the court of appeals' definition of "intelligence sources" has ordered the disclosure of CIA sources in the Dominican Republic on the basis of judgments such as these: only the Trujillo regime, which has been deposed, would have taken action against these sources (slip op. 29 n.50); the current regime is "stable" and "has disavowed all ties with Trujillo's politics, attitudes and methods" (ibid.); since Trujillo and his police chief are dead, the sources need not fear retaliation from individuals sympathetic to Trujillo (id. at 33 n.60); and indeed "(m)any of the sources * * *, far from being embarrassed by revelation, might well be thought to be popular, particularly in the Dominican Republic, for having helped, no matter how slightly, to work against the dictator now unpopular and scorned" (id. at 34 n.61). Leading experts on the politics and culture of a society are likely to differ on the extent to which generalizations like these are accurate. Plainly a court should not be in a position of having to make such judgments. /3/ In addition, much information that is publicly available in principle can be difficult to obtain from public sources, and far more easily obtained from sources whose identity both the source and the Agency legitimately wish to protect. An example of such information might be details of the travel plans or financial transactions of an individual whom the CIA is observing. It might be far more difficult to obtain such information from a public source than from a source who would cease to provide it if his identity were revealed; but the court of appeals would apparently require the disclosure of such a source's identity, since the information was available by means that did not involve a guarantee of confidentiality. /4/ As the District of Columbia Circuit itself remarked, on one occasion when the definition it devised in this case apparently had not been brought to its attention: "The Freedom of Information Act bars the courts from prying loose from the government even the smallest bit of information that * * * would disclose intelligence sources or methods." Afshar v. Department of State, 702 F.2d 1125, 1130 (1983) (McGowan, J.). /5/ See also Gardels v. CIA, 689 F.2d 1100, 1107 (D.C. Cir. 1982); Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980); National Commission on Law Enforcement and Social Justice v. CIA, 576 F.2d 1373, 1376 (9th Cir. 1978). APPENDIX APPENDIX MATERIAL IS NOT AVAILABLE ON JURIS.