AMERICAN FOREIGN SERVICE ASSOCIATION, ET AL., APPELLANTS V. STEVEN
GARFINKEL, ET AL.

   No. 87-2127

   In the Supreme Court of the United States

   October Term, 1988

   On Appeal from the United States District Court for the District of
Columbia

   Brief for the Appellees

            TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Constitutional and statutory provisions involved
   Statement:
      A. The legal framework for the protection of national
         security information in the Executive Branch
      B. The proceedings in this case
      C. Subsequent developments
   Summary of argument
   Argument:
      I. The Constitution vests the President with the primary
         responsibility and power to protect national security
         information within the Executive Branch
         A. Complete authority over national defense and
            foreign affairs within the Executive Branch is
            vested directly in the President, by virture of his
            status as Commander in Chief, sole organ of the
            Nation in its external relations, and head of the
            Executive Branch
         B. The President's constitutional authority over
            national defense and foreign relations requires that
            he have control over national security information
            in the Executive Branch
     II. Section 630 is unconstitutional to the extent it is
         interpreted to deprive the President of his ability to
         prevent negligent disclosures of national security
         information and to deprive the President of control over
         dissemination of such information, including to
         members of Congress
         A. The principal concern that led to the enactment
            of Section 630 has been met by the deletion of
            the word "classifiable" from all of the challenged
            agreements
         B. Section 630 cannot constitutionally be applied to
            deprive the President of his authority to prevent
            the negligent release of national security
            information by his subordinates
         C. Section 630 cannot constitutionally be applied to
            divest the President of all control over the
            decision whether to disclose national security
            information to Congress
   Conclusion
   Appendix

                            OPINIONS BELOW

   The opinion of the district court dated May 27, 1988 (J.S. App.
1a-36a) is reported at 688 F. Supp. 671.  The opinion and judgment of
the district court in the companion cases of NFFE v. United States and
AFGE v. Garfinkel, dated July 29, 1988 (Mot. to Aff. App. 4a-24a;
J.A. 61-63), and the order of the district court on the defendant's
motion to alter or amend the judgment in those cases (J.A. 64-65), are
reported at 695 F. Supp. 1196.

                             JURISDICTION

   The judgment of the district court (J.S. App. 37a-38a) was entered
on May 27, 1988.  The notice of appeal to this Court was filed on June
3, 1988 (J.S. App. 39a-40a), and the jurisdictional statement was
docketed on June 28, 1988.  The Court noted probable jurisdiction on
October 31, 1988.  The jurisdiction of this Court is invoked under 28
U.S.C. 1252.

           CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

   The relevant provisions of the Constitution and Section 630 of the
Treasury, Postal Service and General Government Appropriations Act,
1988 (as enacted by Section 101(m) of the Continuing Appropriations
Act, 1988, Pub. L. No. 100-202, 101 Stat. 1329-432) are reproduced at
App., infra, 1a-3a.  Section 619 of the Treasury, Postal Service and
General Government Appropriations Act, 1989, Pub. L. No. 100-440, 102
Stat. 1756, which is identical to Section 630 of the 1988 Act, is set
forth in the addendum to the appellants' brief.

                          QUESTIONS PRESENTED

   Section 630 of the Treasury, Postal Service and General
Appropriations Act for fiscal year 1988 provides that no funds
appropriated for that year may be expended for the implementation or
enforcement of any policy, form or agreement concerning the
unauthorized disclosure of classified information if the policy, form
or agreement:  (a) contains the term "classifiable" or concerns
information other than that which is marked classified or is known by
the employee to be classified or to be in the process of a
classification determination, or (b) obstructs (by requirement of
prior authorization or limitation of disclosure) the right of an
individual to petition or communicate with Members of Congress in a
secure manner as provided by the procedures of Congress or interferes
with the right of Congress to obtain Executive Branch information.
Consistent with the first of these requirements, appellees have
deleted the word "classifiable" from all forms.

   The questions presented are:

   1. Whether the remaining requirements of Section 630
unconstitutionally interfere with the President's authority as
Commander in Chief and head of the Executive Branch to protect
national security information and to supervise employees who have
responsibilities in the area of national security.

   2. Whether appellants' remaining claims under Section 630 are ripe
for judicial review and suitable for the award of equitable relief.

                               STATEMENT

   A. The Legal Framework For The Protection Of National Security
Information In The Executive Branch

   1. The President has the authority and responsibility under Article
II of the Constitution to classify information concerning the national
defense and foreign relations of the United States, to decide whether
an individual is sufficiently trustworthy to be granted access to such
information, and to determine whether an individual has a need to know
a particular item of such information on a particular occasion.  This
authority "exists quite apart from any explicit congressional grant."
Department of the Navy v. Egan, No. 86-1552 (Feb. 23, 1988), slip op.
8.

   The Executive Branch has engaged in systematic efforts since World
War I to protect national security information.  Since World War II,
these efforts have been formalized in a series of executive orders
that seek to ensure uniformity and proper classification throughout
the Executive Branch.  See Exec. Order No. 10,290, 3 C.F.R. 789
(1949-1953 Comp.);  Exec. Order No. 10,501, 3 C.F.R. 979 (1949-1953
Comp.);  Exec. Order No. 11,652, 3 C.F.R. 678 (1971-1975 Comp.);
Exec. Order No. 12,065, 3 C.F.R. 190 (1978 Comp.).  The most recent
such directive, Executive Order No. 12,356, was issued by President
Reagan in 1982.  47 Fed. Reg. 14,874, 3 C.F.R. 166 (1982 Comp.);  50
U.S.C. 401 note.  See Egan, slip op. 9.

   Executive Order No. 12,356 provides for three levels of
classification -- Top Secret, Secret and Confidential -- based upon
the degree of the harm to the national security that could result from
unauthorized disclosure (Section 1.1(a)).  /1/ The Executive Order
also describes categories of information that may be classified /2/
and prohibits classification to conceal violations of the law or
administrative inefficiency or to prevent embarrassment (Section
1.6(a) and (b)).  If there is reasonable doubt about the need to
classify information, it must be safeguarded as if it is classified
pending a classification determination, which must be made within 30
days (Sections 1.1(c), 1.2(e)).  When classified information exists in
a document or other concrete format, markings are ordinarily used to
indicate its classified status (Section 1.5).  /3/

   In order to safeguard national security information, Executive
Order No. 12,356 provides that access must be limited as a general
matter to those individuals who have been determined to be
trustworthy, and that access to any particular item of information may
be granted only where it "is essential to the accomplishment of lawful
and authorized Government purposes" (Section 4.1(a)) -- i.e., where
the individual has a "need to know" that information.  Each agency is
required to establish controls to ensure that classified information
is used, stored, reproduced, transmitted and destroyed under
conditions that will provide adequate protection and prevent
unauthorized access (Section 4.1(b)).  Dissemination outside the
Executive Branch is prohibited except "under conditions that ensure
that the information will be given protection equivalent to that
afforded within the executive branch" (Section 4.1(c)).  All persons
who are granted access to classified information are subject to
appropriate sanctions if they "knowingly, willfully, or negligently"
disclose it to unauthorized persons (Section 5.4(b)(1)).  In the case
of government officers and employees, those sanctions may include
reprimand, loss or denial of access to classified information,
suspension without pay, and removal from employment (Section 5.4(c)).

   The National Security Council is responsible for establishing
overall policy with respect to classified information, but the
Director of the Information Security Oversight Office (ISOO) in the
General Services Administration is responsible for implementing the
program and monitoring compliance (Section 5.1).  The Director of ISOO
is authorized, inter alia, "to prescribe, after consultation with
affected agencies, standard forms that will promote the implementation
of the information security program" (Section 5.2(b)(7)).  See also 32
C.F.R. Pts. 2001-2003.

   2. In addition to the foregoing measures instituted by the
President pursuant to his inherent constitutional authority, the
National Security Act of 1947, ch. 343, 61 Stat. 495, provides that
the Director of Central Intelligence (DCI) "shall be responsible for
protecting intelligence sources and methods from unauthorized
disclosure" (Section 102(d)(3), 50 U.S.C. 403(d)(3)).  See Webster v.
Doe, No. 86-1294 (June 15, 1988), slip op. 7-8;  CIA v. Sims, 471 U.S.
159, 170-173 (1985);  Snepp v. United States, 444 U.S. 507, 509
(1980).  /4/ The DCI has long required individuals who are granted
access to information concerning the Central Intelligence Agency (CIA)
or its intelligence sources and methods to sign a formal agreement in
which they promise not to disclose such information without prior
authorization and to submit any material relating to such information
for prepublication review.  In Snepp, the Court found one such
agreement to be an "entirely appropriate" exercise of the DCI's
authority to protect intelligence sources and methods, and it
sustained the agreement against a First Amendment challenge (444 U.S.
at 509 n.3).

   In 1981, the DCI adopted Standard Form (SF) 4193 (J.A. 19-25),
which governs access to Sensitive Compartmented Information (SCI)
(J.S. App. 5a n.4).  SCI is a subset of information involving
intelligence sources and methods that consists of "data about
sophisticated technical systems for collecting intelligence and the
information collected by those systems." DCI Security Committee,
Sensitive Compartmented Information:  Characteristics and Security
Requirements 1 (June 1984) (J.A. 46).  Because SCI is extremely
vulnerable to countermeasures and compromise, "no risk is tolerable
where SCI is involved" (J.A. 49).  More stringent standards are
accordingly applied in determining who may have access to SCI, and
individuals who have been granted access to Top Secret information
nonetheless may be denied access to SCI (J.A. 48-51).  In a
declaration filed in the court below, DCI William Webster explained
that Form 4193 serves to underscore the personal obligation undertaken
by the signatory, which prevents both inadvertent and deliberate
disclosures, and to facilitate the tracking of persons who have had
access to the SCI (Webster Decl. Paragraphs 3-4, 8-11 (J.A. 40-41,
43-44)).  These special protections for SCI are in accordance with the
authorization in Section 4.2 of Executive Order No. 12,356 for the DCI
to establish special access programs governing "particularly
sensitive" information pertaining to intelligence sources and methods
(Webster Decl. Paragraph 3 (J.A. 40-41)).

   As originally adopted in 1981, Form 4193 described SCI as
information that "involves or derives from intelligence sources or
methods and is classified or classifiable under the standards of
Executive Order 12,065 (the predecessor to Executive Order No. 12,356)
or other Executive order or statute" (SF 4193 Paragraph 1 (J.A. 19)).
Any person who signed Form 4193 acknowledged that "direct or indirect
unauthorized disclosure, unauthorized retention, or negligent handling
of SCI * * * could cause irreparable injury to the United States or be
used to advantage by a foreign nation" (id. Paragraph 3 (J.A. 19)).
The signatory accordingly promised, in consideration of his being
granted access to SCI, never to divulge SCI to anyone who is not
authorized to receive it without the prior written authorization of
the responsible agency (id. Paragraphs 1, 3 (J.A. 19, 20)).  /5/
Finally, the signatory acknowledged that any breach of the agreement
could result in termination of his access to SCI, removal from a
position of special confidence and trust requiring such access, or
loss of employment with any agency that granted him access to SCI (id.
Paragraph 7 (J.A. 21)).

   3. In 1982, in response to numerous improper disclosures, President
Reagan established a task force to recommend additional measures for
the protection of national security information.  The task force's
recommendations were approved by the National Security Council and
were adopted by the President in National Security Decision Directive
(NSDD) 84 (Mar. 11, 1983) (J.A. 11-14).  NSDD 84 states that
preventing unlawful disclosures of classified information is "a matter
of grave concern and high priority," and it directs each Executive
Branch agency to require any person who is granted access to
classified information to sign a nondisclosure agreement as a
condition of such access (Paragraph 1.a. (J.A. 11)).  In addition,
NSDD 84 requires the Director of ISOO to estabish a standard
nondisclosure form for use throughout the Executive Branch for
classified information other than SCI (Paragraph 1.c. (J.A. 12)).

   Pursuant to the latter mandate of NSDD 84, the Director of ISOO
adopted Standard Form (SF) 189 (J.A. 15-18).  As originally adopted in
1983, SF 189 defined the term "classified information" as "information
that is either classified or classifiable under the standards of
Executive Order 12,356 or under any other Executive Order or statute
that prohibits the unauthorized disclosure of information in the
interest of national security" (Paragraph 1 (J.A. 15)).  Like the
DCI's Form 4193, SF 189 states that the signatory has been advised and
is aware that "direct or indirect unauthorized disclosure,
unauthorized retention, or negligent handling of classified
information * * * could cause irreparable injury to the United States
or could be used to advantage by a foreign nation." The signatory
accordingly promised never to divulge such information unless he has
officially verified that the recipient has been properly authorized by
the responsible agency (Paragraph 3 (J.A. 15)).  As under Form 4193,
the signatory also acknowledged that a breach of the agreement could
result in termination of his security clearances, loss of his position
of confidence and trust, or loss of employment with the agency that
granted him access to the information (Paragraph 4 (J.A. 16)).

   4. On August 17, 1987, the National Federation of Federal Employees
filed an action in the United States District Court for the District
of Columbia seeking to enjoin the use of SF 189 and any other form
that used the word "classifiable" to describe information that may not
be disclosed.  NFFE v. United States, Civ. No. 87-2284-OG.  NFFE
contended, inter alia, that use of the term "classifiable" violated
the First Amendment because it is ambiguous and overboard and would
permit an agency to classify information after the employee sought to
disclose it or had already done so.  The American Federation of
Government Employees and three individuals filed a similar suit in the
same court on September 1, 1987, challenging the term "classifiable"
in both SF 189 and Form 4193.  AFGE v. Garfinkel, Civ. No. 87-2412-OG.
 See J.S. App. 2a n.1.

   On December 21, 1987, while the NFFE and AFGE suits were pending,
the Director of ISOO published a regulation in the Federal Register to
clarify the meaning of the term "classifiable information" as used in
SF 189.  /6/ That reguation stated that the term "classifiable
information" means

         (a) Unmarked classified information, including oral
      communications;  and (b) unclassified information that meets the
      standards for classification and is in the process of a
      classification determination.  "Classifiable information" does
      not refer to currently unclassified information that may be
      subject to possible classification at some future date, but is
      not currently in the process of a classification determination.
      Therefore, the only circumstances under which a party to SF 189
      might violate its terms by disclosing unclassified information
      are when a party knows, or reasonably should know, that such
      information is in the process of a classification determination
      * * *.

   32 C.F.R. 2003.20(h)(1)(i) (emphasis in original), as added, 52
Fed. Reg. 48,367 (1987).

   5. One day after the Director of ISOO published the clarification
of the term "classifiable," Congress passed the 450-page,
government-wide Continuing Appropriations Act for fiscal year 1988,
Pub. L. No. 100-202, 101 Stat. 1329.  Section 101(m) of that Act
contained the Treasury, Postal Service and General Government
Appropriations Act, 1988, 101 Stat. 1329-390.  Section 630 of the
latter Act, 101 Stat. 1329-432 (App., infra, 1a-2a), is a rider, added
at the last minute (133 Cong. Rec. H11,999 (daily ed. Dec. 21, 1987)),
which purports to impose certain restrictions on the ability of
Executive Branch agencies to protect classified information.

   Section 630 provides that no funds appropriated in any Act for
fiscal year 1988 "may be used to implement or enforce the agreements
in Standard Forms 189 or 4193 of the Government or any other
nondisclosure policy, form or agreement" that has certain
characteristics identified in five succeeding subsections.  /7/ The
first two of these subsections provide that appropriated funds may not
be used to implement or enforce a policy, form or agreement that
"contains the term 'classifiable'" (Paragraph (2)) or that "concerns
information other than that specifically marked as classified;  or,
unmarked but known by the employee to be classified;  or, unclassified
but known by the employee to be in the process of a classification
determination" (Paragraph (1)).  The latter limitations parallel the
categories of information to which SF 189 was limited in any event by
virtue of the clarification published by the Director of ISOO on
December 21, 1987.  See pages 7-8, supra.  Subsections (3) and (4) of
Section 630 prohibit the use of funds for a nondisclosure policy, form
or agreement that "obstructs * * * the right of any individual to
petition or communicate with Members of Congress" or "interferes with
the right of the Congress to obtain executive branch information in a
secure manner as provided by the rules and procedures of the
Congress." Subsection (5) provides that appropriated funds may not be
used for any policy, form or agreement that "imposes any obligations
or invokes any remedies inconsistent with statutory law."

   6. The responsible Executive Branch officials promptly took steps
to accommodate certain of the concerns reflected in Section 630.
Appellee Garfinkel, the Director of ISOO, temporarily suspended
further implementation of SF 189 pending receipt of advice from the
Attorney General (Garfinkel Aff. Paragraph 2 (Feb. 8, 1988) (J.A.
28-29)).  He also directed agencies to notify affected employees that
any SF 189 executed after December 22, 1987 would be treated as
voidable at the employee's request (Paragraph 3 (J.A. 29)).

   On behalf of the DCI, Lt. General Edward J. Heinz, the Director of
the Intelligence Community Staff, issued instructions stating that
Form 4193 was only to be used when accompanied by a special addendum
that read:

         The obligations imposed by this Agreement shall be
      implemented and enforced in a manner consistent with the section
      entitled "Employee Disclosure Agreements" contained in P.L.
      100-202, Continuing Appropriations for Fiscal Year 1988, 22
      December 1987, and other applicable law.

   Heinz Decl. Paragraph 4 (Feb. 9, 1988) (J.A. 26).  Then, on March
18, 1988, the DCI replaced Form 4193 with Form 4355.  Second Heinz
Decl. Paragraph 3 (Mar. 24, 1988) (J.A. 52) & Exh. A (J.A. 54-58).
Consistent with subsection (2) of Section 630, Form 4355 does not use
the word "classifiable" in describing the information to which the
signatory's nondisclosure obligation applies.  Instead, tracking
subsection (1) of Section 630, Form 4355 describes SCI as information
that "involves or derives from intelligence sources or methods and is
classified or is in the process of a classification determination
under the standards of Executive Order 12356 or other Executive order
or statute" (Paragraph 1 (J.A. 54)).  /8/ A signatory to Form 4355
agrees that he will never divulge anything marked SCI or that he knows
to be SCI to anyone not authorized to receive it or without prior
authorization, and that it is his responsibility to consult with
appropriate officials in order to ensure that he knows whether
information that he has reason to believe might be SCI (or might be
related to or derived from SCI) is considered by the agency concerned
to be SCI (Paragraph 3 (J.A. 55)).  Instructions issued by Lt. Gen.
Heinz provide that agencies may permit persons who signed Form 4193
after December 21, 1987, to sign a Form 4355 in its place.  Second
Heinz Decl., Exh. B.

   B. The Proceedings In This Case

   1. On February 19, 1988, one month before the DCI issued Form 4355,
the American Foreign Service Association (AFSA) and seven Members of
Congress, appellants herein, filed this action challenging SF 189 and
Form 4193 on the ground that they violate Section 630.  Appellants
sought declaratory and injunctive relief that would (i) bar the
Secretry of State from requiring State Department employees to execute
Form 4193 (even with the addendum quoted above) during the remainder
of fiscal year 1988, (ii) compel the Secretary of State to treat all
Form 4193 agreements signed after December 22, 1987, as void, (iii)
direct appellees Webster and Garfinkel to prohibit federal agencies
from requiring federal officers and employees to sign Form 4193 during
the remainder of fiscal year 1988, and (iv) direct appellees Webster
and Garfinkel to require all federal agencies to treat all SF 189 and
Form 4193 agreements executed after December 22, 1987, as void and to
notify the signatories accordingly.  Complaint 7-8 (J.A. 9-10).  The
district court consolidated this case with the AFGE and NFFE cases for
all purposes (J.S. App. 2a n.1;  J.A. 2), and the plaintiffs in AFGE
and NFFE amended their complaints to allege similar claims under
Section 630.

   2. The district court considered the consolidated cases in two
steps.  First, in the decision at issue here (J.S. App. 1a-36a),
rendered on May 27, 1988, the court addressed the claim presented in
all three cases under Section 630.  The court did not actually decide
whether the challenged forms were inconsistent with Section 630;
instead, it assumed for purposes of its decision that appellees had
violated Section 630, noting by way of explanation only that the DCI
continued to use Form 4193 after December 22, 1987 (albeit with the
addendum) until he adopted Form 4355 in March 1988 (J.S. App. 22a-23a
n.16).  /9/ The court nevertheless denied appellants any relief
because it held that Section 630 unconstitutionally interferes with
the President's inherent Article II power to protect national security
information (J.S. App. 22a-27a).  /10/

   In the district court's view, although Congress is not precluded
from "activity relating to national security information" (J.S. App.
23a), Section 630 "impermissibly restricts the President's power to
fulfill obligations imposed upon him by his express constitutional
powers and the role of the Executive in foreign relations" (J.S. App.
27a).  The court found Subsections (3)-(5) of Section 630 particularly
objectionable because those provisions, which govern communications to
Congress by federal employees and bar enforcement of agreements that
impose obligations or invoke remedies inconsistent with statutory law,
would restrict the President to insuring "the secrecy of national
security information only by those means authorized by Congress" (J.S.
App. 27a).  Accordingly, the court concluded, "(w)herever may be drawn
the line between the political branches in the area of regulating
access to national security information, section 630 surely falls
within the territory where it is not welcome" (ibid.).  The court
therefore granted summary judgment in favor of the appellee federal
officials in this case, since appellants based their challenge to SF
189 and Form 4193 only on Section 630, and it dismissed the
corresponding counts under Section 630 in the NFFE and AFGE complaints
(J.S. App. 27a-28a, 37a-38a).  /11/

   C. Subsequent Developments

   1. On July 29, 1988, after the notice of direct appeal to this
Court was filed in the instant case, the district court rendered its
final decision in NFFE and AFGE, holding that the term "classifiable"
as used in SF 189 and Form 4193 is not impermissibly vague under the
First Amendment provided its scope is clarified in accordance with the
definition published by the Director of ISOO on December 21, 1987
(Mot. to Aff. App. 10a-20a).  However, the court ordered that SF 189
and Form 4193 could not be enforced with respect to "classifiable"
information unless employees who had signed those forms were
individually informed of the published clarification or the term was
deleted from their agreements (id. at 20a).

   The district court also rejected the contention by the NFFE and
AFGE plaintiffs that the regulation published by the Director of ISOO
in December 1987 violates the First Amendment because it bars
negligent disclosures and disclosures of information that the employee
should know is classified or in the process of a classification
determination.  The court explained that "(t)he reasonable person
standard is one to which people are held in all their activities, and
it does not become unconstitutionally vague simply because First
Amendment rights are involved" (Mot. to Aff. App. 19a).  The court
likewise rejected the claim by the AFGE plaintiffs that the agreements
violate 5 U.S.C. 7211 -- which prohibits interference with the right
of employees to petition Congress or a Member of Congress or to
furnish information to a House, committee or Member of Congress --
because the plaintiffs failed to allege that they had disclosed or
intended to disclose classified or classifiable information to
Congress and been threatened with enforcement of the nondisclosure
agreement as a result (Mot. to Aff. App. 21a-22a).  /12/

   2. On September 29, 1988, the Director of ISOO published
regulations setting forth the manner in which he would implement the
final judgment in the NFFE and AFGE cases.  53 Fed. Reg. 38,278,
amending 32 C.F.R. 2003.20.  The regulations clarify all outstanding
SF 189 agreements by substituting for the term "classifiable
information" a more precise description of the categories of
information to which that shorthand label was intended to refer:
"unmarked classified information (including oral communications), and
unclassified information that meets the standards for classification
and is in the process of a classification determination" (32 C.F.R.
2003.20(h)(1)).  The new ISOO regulations also stae the basis on which
an employee may be held liable for an unauthorized disclosure of
information covered by SF 189 (or the new SF 312, discussed below) --
namely, if he knew or reasonably should have known that the
information was classified or in the process of a classification
determination (32 C.F.R. 2003.20(h)(3)).  On September 26 and 30,
1988, instructions were issued on behalf of the DCI to clarify the
existing Form 4193 agreements by substituting similar language for the
term "classifiable" and to require appropriate government officials to
furnish notification of these changes to employees who had previously
signed that Form.  Pursuant to a further order entered in NFFE and
AFGE on September 26, 1988, all federal agencies were required by
October 27, 1988, to furnish individualized notice of the
clarification to employees who had signed SF 189 and Form 4193 (J.A.
64-65).

   In addition, effective September 29, 1988, the Director of ISOO
replaced SF 189 on a prospective basis with a new SF 312 (J.A. 66-70;
32 C.F.R. 2003.20(a)).  SF 312 likewise omits the term "classifiable"
and refers instead only to "classified" information (including
information that is unmarked) and information that meets the standards
for classification and is in the process of a classification
determination.  Like Form 4355 (see page 10, supra), SF 312 provides
that if the signatory is uncertain about the classification status of
information, he must confirm with an authorized official that the
information is unclassified before he may disclose it (J.A. 67).  Any
person who previously signed an SF 189 is permitted to sign an SF 312
in its place (32 C.F.R. 2003.20(b)).  /13/

   3. Because Section 630 was enacted as a rider to an appropriations
law for fiscal year 1988, it expired on September 30, 1988.  However,
Section 619 of the Treasury, Postal Service and General Government
Appropriations Act, 1989, Pub. L. No. 100-440, 102 Stat. 1721,
contains restrictions on the expenditure of appropriated funds for
fiscal year 1989 that are identical to those in Section 630 of the
1988 act.  /14/

                          SUMMARY OF ARGUMENT

   I. The President's constitutionally assigned roles as Commander in
Chief, sole organ of the Nation in its external relations, and head of
the Executive Branch grant him complete authority over matters of
national defense and foreign affairs within the Executive Branch.  The
subordinate personnel who assist him in these responsibilities
therefore must be subject to his direction.  This constitutional
imperative of Presidential control applies to the protection of
national security information to which his subordinates have access.
Congress has a role to play in the areas of national defense and
foreign affairs, by virtue of the need for the Senate to consent to
treaties and Congress's powers to declare war, provide an Army and
Navy, regulate the land and naval forces, and appropriate funds.  But
Congress must exercise those powers in a manner that respects the
principle of Presidential control over the execution of his own
inherent powers and whatever laws Congress may enact.  Accordingly,
Congress may not vest final decision-making authority in lower-ranking
Executive Branch personnel on matters of national defense and foreign
affairs, including the disclosure of national security information.

   II. Section 630 of the Treasury, Postal Service and General
Government Appropriations Act for Fiscal Year 1988 prohibits the use
of funds to implement or enforce classified information nondisclosure
agreements having five specified features.  The principal concern of
Congress, reflected in subsection (2), was satisfied when the arguably
vague and overbroad reference to "classifiable" information was
deleted from all forms in 1988.

   Appellants contend that the forms violate subsection (1) of Section
630 because they apply to unmarked information if it is classified or
in the process of a classification determination but do not expressly
require that the employee know of that status in order to be subject
to sanctions.  Contrary to appellants' view, Congress may not
constitutionally prohibit the President from taking action against an
employee who disclosed information he should have known was classified
and who failed even to check on its classified status before he did
so.  The President's constitutional responsibility to assure the
fullest protection for national security information requires that he
be able to limit access by (or take other action against) an employee
whose negligent conduct undermines the trust that had been reposed in
him.  In any event, subsection (1) should not be construed as
presenting this constitutional issue, because it does not bar the
requirement in the new forms that an employee confirm the status of
information if he is uncertain whether it is classified.

   Subsections (3), (4) and (5) of Section 630 concern the furnishing
of national security information by Executive Branch employees to
Congress.  The President's constitutional responsibilities require
that he have direct control over access by anyone, including Members
of Congress, to such information in the Executive Branch, and the
President has uniformly limited access to classified information to
persons who have a need to know the particular information, such as a
congressional committee having specific jurisdiction over the subject
matter.  Congress cannot circumvent this limitation and undermine the
President's control over national security information by vesting
lower-level employees with a "right" to furnish any classified
information to any Member of Congress.  As it happens, appellants
concede that subsections (3), (4) and (5) do not confer such a right
on Executive Branch employees and do not confer a right on Congress to
receive classified information.  Instead, appellants concede that
those subsections simply prohibit nondisclosure forms from imposing a
new burden (such as a requirement of prior authorization) on the
exercise of whatever preexisting right (if any) employees might have
to furnish classified information to Congress or whatever right
Congress might have to receive it.  Moreover, appellants expressly do
not ask this Court to determine the scope of whatever right employees
might have in this regard from some other source, such as the First
Amendment or 5 U.S.C. 7211, which preserves the right to petition
Congress.  They do argue, however, that appellees should individually
notify all signatories that the nondisclosure forms do not supersede
prexisting rights.  But Section 630 does not itself require any
notice.  And since appellants do not ask this Court to decide whether
subsections (3), (4) and (5) have been violated, no notice should be
ordered as a "remedy" for what would at most be a purely hypothetical
statutory violation.

                               ARGUMENT

   I. THE CONSTITUTION VESTS THE PRESIDENT WITH THE PRIMARY
RESPONSIBILITY AND POWER TO PROTECT NATIONAL SECURITY INFORMATION
WITHIN THE EXECUTIVE BRANCH

   The nondisclosure agreements at issue in this case are personal
pledges given by individuals who occupy positions in the Executive
Branch that they will respect the trust and confidence that have been
reposed in them.  The President's authority to demand such a promise
rests on the fundamental principle that the Constitution vests the
President with personal responsibility over all matters within the
Executive Branch that bear on national defense and foreign affairs,
including the collection and dissemination of national security
information.  The Constitution does not permit Congress to thwart the
President's discharge of that responsibility by insulating lower-level
employees from accountability for their negligent failure to maintain
the confidentiality of national secrets or by vesting those employees
with unsupervised discretion to disclose classified information to
persons who have not been authorized by appropriate Executive Branch
officials to receive it.

   A. COMPLETE AUTHORITY OVER NATIONAL DEFENSE AND FOREIGN AFFAIRS
WITHIN THE EXECUTIVE BRANCH IS VESTED DIRECTLY IN THE PRESIDENT, BY
VIRTUE OF HIS STATUS AS COMMANDER IN CHIEF, SOLE ORGAN OF THE NATION
IN ITS EXTERNAL RELATIONS, AND HEAD OF THE EXECUTIVE BRANCH

   1. "It is 'obvious and unarguable' that no governmental interest is
more compelling than the security of the Nation." Haig v. Agee, 453
U.S. 280, 307 (1981) (quoting Aptheker v. Secretary of State, 378 U.S.
500, 509 (1964)).  In recognition of this compelling interest, the
Constitution expressly assigns to the President a number of
responsibilities that are critical to the protection of the Nation's
security.

   Most importantly, the Constitution provides that the President
"shall be Commander in Chief of the Army and Navy of the United
States" (Art. II, Section 2).  Moreover, the President has "the
fundamental duty, under Art. II, Section 1, of the Constitution, to
'preserve, protect and defend the Constitution of the United States.'
Implicit in that duty is the power to protect our Government against
those who would subvert or overthrow it by unlawful means." United
States v. United States District Court, 407 U.S. 297, 310 (1972).  In
the field of foreign relations, the Constitution provides that the
President "shall appoint Ambassadors" with the advice and consent of
the Senate (Art. II, Section 2, Cl. 2), and "shall receive
Ambassadors" from other Nations (Art. II, Section 3).  The President
also has the power to "make Treaties" with the advice and consent of
the Senate (Art. II, Section 2, Cl. 2), and "he alone negotiates" with
other nations (United States v. Curtiss-Wright Export Corp., 299 U.S.
304, 319 (1936)).  These provisions underlie "the generally accepted
view that foreign policy (is) the province and responsibility of the
Executive" (Haig v. Agee, 453 U.S. at 293-294).  See also United
States v. Pink, 315 U.S. 203, 228-230 (1942).  In addition to these
specific grants of power, the President is vested generally with
"(t)he executive Power" (Art. II, Section 1) and with the correlative
duty to "take Care that the Laws be faithfully executed" (Art. II,
Section 3).  "This grant of authority establishes the President as the
chief constitutional officer of the Executive Branch, entrusted with
supervisory and policy responsibilities of utmost discretion and
sensitivity." Nixon v. Fitzgerald, 457 U.S. 731, 750 (1982);  see also
Myers v. United States, 272 U.S. 52, 117, 151 (1926).

   The Framers understood that their reasons for vesting the executive
power in the President alone -- to create a unitary, vigorous and
independent Executive, see The Federalist No. 68, at 411-414 (C.
Rossiter ed. 1961) (Hamilton);  id. No. 70, at 423-424, 428-429
(Hamilton);  1 M. Farrand, The Records of the Federal Convention of
1787, at 65-67, 71-74, 96-97, 109, 254, 266-267 (rev. ed. 1966) --
were of greatest importance and most sharply focused in the areas of
national defense and foreign affairs.  As Alexander Hamilton explained
regarding the President's role as the Commander in Chief:  "(T)he
power of directing and employing the common strength forms a usual and
essential part in the definition of the executive authority," and
"(o)fall the cares or concerns of government, the direction of war
most peculiarly demands those qualities which distinguish the exercise
of power by a single hand" (The Federalist No. 74, at 447).
Similarly, "(a)s Marshall said in his great argument of March 7, 1800,
in the House of Representatives, 'The President is the sole organ of
the nation in its external relations, and its sole representative with
foreign nations.'" Curtiss-Wright, 299 U.S. at 319, quoting 10 Annals
of Cong. 613 (1800);  Pink, 315 U.S. at 222-223.  See also The
Federalist No. 75, at 451-452 (Hamilton).

   Although all executive powers pertaining to the national security
are vested directly in the President, he cannot, "alone and unaided,"
perfor the myriad and complex tasks involved in their execution
(Myers, 272 U.S. at 117;  Buckley v. Valeo, 424 U.S. 1, 135-136
(1976)).  Congress accordingly has established various departments and
agencies to assist him in these endeavors.  However, the officers whom
he appoints to head those departments and agencies are his
"subordinates" (ibid.) and are "subject to his superintendence" (The
Federalist No. 72, at 436 (Hamilton)), and lower-ranking officers and
employees are subject to the President's supervision and control
through those principal officers.  As a result, in the case of
officers and employees of the Department of State, Department of
Defense, and the CIA, as well as others who are "appointed to aid the
President in the performance of these (constitutional) duties," "their
acts are his acts" (Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166
(1803), quoted in Humphrey's Executor v. United States, 295 U.S. 602,
631 (1935);  see also Myers, 272 U.S. at 132-134)).

   This constitutional imperative of Presidential control was
recognized by the First Congress when it established the Department of
Foreign Affairs and the Department of War, /15/ and has been respected
ever since.  Section 1 of the Act of July 27, 1789, ch. 4, 1 Stat. 28,
provided that the Secretary of Foreign Affairs "shall perform and
execute such duties as shall from time to time be enjoined on or
entrusted to him by the President of the United States" and "shall
conduct the business of the said department in such manner as the
President of the United States shall from time to time order or
instruct." /16/ Congress likewise directed the Secretary of War to
follow the President's instructions in "matters respecting military or
naval affairs" (Act of Aug. 7, 1789, ch. 7, Section 1, 1 Stat. 49-50).
 Congress has retained to the present day the language of the 1789 Act
that prescribes the duties of the Secretary of State (22 U.S.C. 2656),
and it has provided that the Secretary of Defense "is the principal
assistant to the President in all matters relating to the Department
of Defense" and is "(s)ubject to the direction of the President" in
administering its affairs (10 U.S.C. 133(b);  see 50 U.S.C. 401).  See
also 50 U.S.C. 402 (NSC), 403 (CIA).

   The principle of Presidential responsibility for the implementation
of the defense and foreign relations of the United States is thus
firmly embedded in our national experience and our constitutional and
statutory framework.  In the exercise of this responsibility, it is
critical that the President be able to "place in each member of his
official family, and his chief executive subordinates, implicit faith"
(Myers, 272 U.S. at 134).  That means, at least as to those chief
executive officers engaged in sensitive foreign policy and national
security functions, that the President must be able to dismiss them at
will (ibid.).  /17/ It also means, we believe, that the President must
be able to exact promises from those officers and their subordinates
that they will discharge their functions in a manner consistent with
the requirements of their offices and positions, and must be able to
enforce such promises with appropriate sanctions.  For Congress to
deny the President this crucial prerogative of executive leadership,
no less than to constrain his ability to discharge key executive
subordinates, would "make impossible that unity and coordination in
executive administration essential to effective action" (ibid.).

   2. To be sure, Congress has a role in the areas of national defense
and foreign affairs.  As appellants point out (Br. 22-23), the advice
and consent of the Senate are required for the making of treaties and
appointment of ambassadors (Art. II, Section 2, Cl. 2);  Congress as a
whole is granted the powers to "provide for the common Defence,"
"declare War," "raise and support Armies," "provide and maintain a
Navy," and "make Rules for the Government and Regualtion of the land
and naval Force," (Art. I, Section 8, Cls. 1, 11-14);  and the
Executive is retrained by the constitutional limitation that "No Money
shall be drawn from the Treasury, but in Consequence of Appropriations
made by Law" (Art. I, Section 9, Cl. 7).  See also AFL-CIO Br. 12-20;
House Br. 18-19, 26.  But these powers are conferred on Congress in
the same document that confers on the President the status of
Commander in Chief and the several powers (concerning the appointment
and receiving of ambassadors and the making of treaties) that manifest
the President's status as the "'sole organ of the nation in its
external relations'" (Curtiss-Wright, 299 U.S. at 319).  The Framers
therefore plainly intended that Congress would exercise its enumerated
powers in a manner that respects the President's unique status and
distinct responsibilities under the Constitution.

   In particular, Congress must respect the constitutional requirement
that the President at all times retain control over the implementation
of whatever substantive measures the Constitution authorizes Congress
to enact in the area of national defense and foreign relations.
Especially in matters touching upon the national security, that is the
very essence of "(t)he executive Power" and of the duty to "take Care
that the Laws be faithfully executed." Indeed, only by vesting the
President with complete authority over the execution of whatever laws
Congress may enact could the Framers assure that the shared
responsibilities of Congress and the President would be harmonized and
that the Nation would speak with one voice to the rest of the world.
/18/

   The foregoing discussion makes clear, for example, that Congress
could not, simply by invoking its power to make appropriations or to
"make Rules for the Government and Regulation of the land and naval
Forces," enact a rule that effectively deprived the President of his
power as Commander in Chief by purporting to vest final and
independent decision-making authority on a question of military
judment in a lower-ranking officer who was not subject to his command.
 Nor could Congress, simply by invoking its power to make
appropriations or to establish and define the duties of offices in the
Executive Branch (Art. II, Section 2), vest an Executive Branch
officer other than the President with final and independent authority
to determine whether and how discourse should be conducted with
another nation.  Such legislative impediments to the full assumption
of personal authority and responsibility by the President would
disarrange the constitutional structure that the Framers deemed
necessary to protect the security of the Nation and the freedom of its
people (compare Bowsher v. Synar, 478 U.S. 714, 722, 730 (1986);  INS
v. Chadha, 462 U.S. 919, 959 1983));  would "'impermissibly threaten()
the institutional integrity of the (Executive) Branch'" (Mistretta v.
United States, No. 87-7028 (Jan. 19, 1989), slip op. 22, quoting CFTC
v. Schor, 478 U.S. 833, 851 (1986));  and would, by definition,
"'disrupt() the proper balance between the coordinate branches' (by)
prevent(ing) the Executive Branch from accomplishing its
constitutionally assigned functions" (Morrison v. Olson, No. 87-1279
(June 29, 1989), slip op. 36, quoting Nixon v. Administrator of
General Services, 433 U.S. 425, 443 (1977)).  /19/

   B. THE PRESIDENT'S CONSTITUTIONAL AUTHORITY OVER NATIONAL DEFENSE
AND FOREIGN RELATIONS REQUIRES THAT HE HAVE CONTROL OVER NATIONAL
SECURITY INFORMATION IN THE EXECUTIVE BRANCH

   The constitutional imperative of Presidential control applies in
full measure to the protection of national security information that
Executive Branch employees create or handle in assisting the President
in the performance of his duties as Commander in Chief and
representative of the Nation in foreign affairs.

   1. For reasons "too obvious to call for enlarged discussion" (CIA
v. Sims, 471 U.S. 159, 170 (1985)), secrecy is often essential to the
successful conduct of the Nation's defense and foreign relations.
This Court has recognized that the success of most negotiations
depends upon the assurance that information shared between the
President's agents and the representatives of foreign nations will
remain confidential.  Curtiss-Wright, 299 U.S. at 319-321.  In
addition, the collection of reliable intelligence is critical to the
performance of a wide variety of military, diplomatic and similar
undertakings related to the national security, and the continued flow
of intelligence ordinarily requires that the information itself, as
well as the sources and methods used to gather it, be held in the
strictest confidence.  CIA v. Sims, 471 U.S. at 169-173.  The need for
secrecy is also self-evident with respect to information concerning
our own military plans, weapons and vulnerabilities, as well as
information concerning nuclear facilities.  See Exec. Order No.
12,356, Sections 1.3(a)(1), (2) and (7);  New York Times Co. v. United
States, 403 U.S. 713, 726-727 (1971) (Brennan, J., concurring);  id.
at 728 (Stewart, J., concurring).  For these reasons, the Court
repeatedly has acknowledged that the government has a "'compelling
interest' in withholding national security information from
unauthorized persons in the course of executive business." Egan, slip
op. 8 (quoting Snepp v. United States, 444 U.S. 507, 509 n.3 (1980));
see also United States v. Robel, 389 U.S. 258, 267 (1967);  United
States v. Reynolds, 345 U.S. 1 10 (1953);  Totten v. United States, 92
U.S. 105, 106 (1875).

   2. Because the substantive responsibility for national defense and
foreign relations -- including the execution of whatever laws Congress
may enact in these areas -- is vested directly in the President, he
must have direct and unimpeded control over the national security
information whose confidentiality he deems necessary to the successful
performance of his duties.  In fact, the need for secrecy was one of
the principal reasons why the Framers vested the responsibility for
protecting the national security in the single hand of the President,
rather than in a numerous and diffuse legislature.  See The Federalist
No. 64, at 392-393 (Jay) (quoted at page 43, infra);  Curtiss-Wright,
299 U.S. at 321, quoting 1 Richardson, Messages and Papers of the
Presidents 194 (1896) ("'(t)he necessity of such caution and secrecy
was one cogent reason for vesting the power of making treaties in the
President'").  As the Court explained in Curtiss-Wright, 299 U.S. at
320:

         (H)e, not Congress, has the better opportunity of knowing the
      conditions which prevail in foreign countries, and especially is
      this true in times of war.  He has his confidential sources of
      information.  He has his agents in the form of diplomatic,
      consular and other officials.  Secrecy in respect of information
      gathered by them may be highy necessary, and the premature
      disclosure of it productive of harmful results.

   See also CIA v. Sims, 471 U.S. at 172-173.  /20/

   The Executive Branch officers and employees who are appointed to
assist the President are his agents and serve at his direction in
their gathering, retention, and dissemination of information bearing
on the national security.  Because "their acts are his acts" (Marbury
v. Madison, 5 U.S. (1 Cranch) at 166), the President must have the
ultimate authority to decide whether any national security information
generated or obtained by Executive Branch personnel should remain
secret and to decide which other persons (if any) have a need to know
it.  In recognition of these principles, the Court recently affirmed
in Egan that "(the President's) authority to classify and control
access to information bearing on national security and to determine
whether an individual is sufficiently trustworthy to occupy a position
in the Executive Branch that will give that person access to such
information flows primarily from this constitutional investment of
power in the President and exists quite apart from any explicit
congressional grant" (slip op. 8).  See also Cafeteria & Restaurant
Workers Union, Local 473, v. McElroy, 367 U.S. 886, 890 (1961).
Because "(t)he authority to protect (national security) information
falls on the President as head of the Executive Branch and as
Commander in Chief" (Egan, slip op. 8), Congress and the courts must
respect the measures he determines to be necessary within the
Executive Branch to assure the requisite protection for such
information.

   We do not suggest that Congress has no role to play in regulating
national security information.  For example, the espionage laws, 18
U.S.C. 798 et seq., and the Intelligence Indentities Protection Act,
50 U.S.C. 421, furnish important protection for such information
through the threat of criminal penalties, and the Classified
Information Procedures Act (CIPA), 18 U.S.C. App. at 594, establishes
procedures for securing classified information in the course of a
criminal prosecution.  See Appellants' Br. 22, 37;  House Br. 21 &
n.31.  Significantly, however, those statutes defer to the judgment of
the Executive Branch regarding the standards to be applied in the
classification of information.  So, too, does the exemption for
national security information under the Freedom of Information Act
(FOIA), 5 U.S.C. 552(b)(1).  /21/

   Just as the President's roles as Commander in Chief and
representative of the Nation in its foreign reltions bar Congress from
erecting legislative impediments to his full assumption of personal
authority for national security matters (see pages 19-23, supra), so
too do those roles bar Congress from erecting such impediments to
Presidential control over national security information.  As Justice
Stewart eloquently explained, this result is compelled by both
constitutional doctrine and practical necessity:

         The responsibility (for protecting classified information)
      must be where the power is.  If the Constitution gives the
      Executive a large degree of unshared power in the conduct of
      foreign affairs and the maintenance of our national defense,
      then under the Constitution the Executive must have the largely
      unshared duty to determine and preserve the degree of internal
      security necessary to exercise that power successfully.  * * *
      (I)t is the constitutional duty of the Executive -- as a matter
      of sovereign prerogative and not as a matter of law as the
      courts know law -- through the promulgation and enforcement of
      executive regulations, to protect the confidentiality necessary
      to carry out its responsibilities in the fields of international
      relations and national defense.

   New York Times Co. v. United States, 403 U.S. at 728-730 (Stewart,
J., concurring) (footnote omitted).  See also Egan, slip op. 10;  Cole
v. Young, 351 U.S. 536, 546 (1956).  Executive Order No. 12,356 and
the implementing nondisclosure forms at issue in this case are
precisely the sorts of measures to which Justice Stewart referred.

   II. SECTION 630 IS UNCONSTITUTIONAL TO THE EXENT IT IS INTERPRETED
TO DEPRIVE THE PRESIDENT OF HIS ABILITY TO PREVENT NEGLIGENT
DISCLOSURES OF NATIONAL SECURITY INFORMATION AND TO DEPRIVE THE
PRESIDENT OF CONTROL OVER DISSEMINATION OF SUCH INFORMATION, INCLUDING
TO MEMBERS OF CONGRESS

   After a thorough study within the Executive Branch, the President
concluded in 1982 that nondisclosure agreements such as those at issue
here perform essential functions in protecting national security
information that is classified pursuant to Executive Order 12356.
Such agreements serve clearly to define the personal obligations of
the officers and employees who will be granted access to national
security information, and to assure that each employee fully
appreciates the exacting nature of the trust relationship he is
assuming with the United States Government and the consequences that
may result from a breach of that trust.  See Snepp, 444 U.S. at
510-511 & nn. 5 and 6, 515;  Webster v. Doe, slip op. 7-8;  Webster
Decl. Paragraph 8 (J.A. 43).  For these reasons, NSDD 84 requires all
employees who have access to SCI and other classified information to
sign a nondisclosure form as a condition of access.  Just as this
Court held in Snepp that such agreements are an "entirely appropriate"
way for the DCI to implement his statutory duty to protect
intelligence sources and methods from unauthorized disclosure (444
U.S. at 509 n.3), they also are an entirely appropriate way for the
President to implement his constitutional duty to protect classified
information generally, by setting forth the standards to which
Executive Branch employees would be held under Executive Order 12,356
even in the absence of a written agreement.  Appellants do not contend
otherwise.

   Appellants do, however, object to particular features of the forms,
arguing that they are (or may be) inconsistent with Section 630 of the
Treasury, Postal Service and General Government Appropriations Act for
fiscal year 1988.  /22/ Appellants do not seriously dispute that the
actions of the DCI and ISOO Director have satisfied Congress's
principal concerns in enacting Section 630 (see Br. 19, 32-34) --
elimination of the arguably vague and overbroad term "classifiable,"
which was the subject of subsection (2) of Section 630.  But they
remain dissatisfied with two other features of the nondisclosure
agreements.  First, appellants object that the new forms apply to
unmarked information if it is classified or in the process of a
classification determination, but do not expressly require that the
employee know of that status in order to be subject to sanctions;
appellants believe that this omission violates subsection (1) of
Section 630.  See Br. 19-20, 34-37.  Second, although appellants take
the position that subsections (3), (4) and (5) of Section 630 do not
confer any new right to communicate classified information to
Congress, they believe that all signatories of nondisclosure forms
should be notified that subsections (3), (4) and (5) prohibit
nondisclosure agreements from requiring prior authorization for the
exercise of any preexisting right to furnish such information to
Congress.  See Br. 38-48.  After briefly addressing the status of the
dispute over the term "classifiable," we show that these two
objections are unsound as a matter of both statutory construction and
constitutional law.

   A. THE PRINCIPAL CONCERN THAT LED TO THE ENACTMENT OF SECTION 630
HAS BEEN MET BY THE DELETION OF THE WORD "CLASSIFIABLE" FROM ALL OF
THE CHALLENGED AGREEMENTS

   All parties and amici agree that Congress enacted Section 630 in
response to the use of the term "classifiable" in nondisclosure forms
to describe the information that the signatory may not disclose.  See
pages 7-8, supra;  Appellants' Br. 5-9;  Senate Br. 3, 9-15;  House
Br. 2-3, 8-9;  ACLU Br. 6-9;  AFL-CIO/AFGE Br. 9.  In 1987, some
Executive Branch employees and Members of Congress began to express
reservations regarding the use of the term "classifiable" in SF 189
(and Form 4193), because they believed that the term was vague and
overbroad and therefore might impermissibly chill the exercise of
First Amendment rights, and that the term might allow an agency to
classify information after it had been disclosed in order to punish
the employee who had disclosed it.  It was these concerns that led to
the filing of the NFEE and ADGE suits in August and September 1987,
and to the last-minute insertion of Section 630 into the Continuing
Appropriations Act for 1988 in December 1987.  H.R. Conf. Rep. No.
498, 100th Cong., 1st Sess. 1179 (1987);  see generally Classified
Information Nondisclosure Agreements:  Hearing Before the Subcomm. on
Human Resources of the House Comm. on Post Office and Civil Service,
100th Cong., 1st Sess. 1-3, 5, 8-17, 22, 42-44, 53-56, 59, 63-64,
76-79, 84, 94-98, 103-110, 112, 116, 122, 133, 148, 151-154 (1987)
(1987 Hearing).

   Because the term "classifiable" was simply a shorthand label for a
general concept -- information that is not marked as classified but is
classified, or information that is not classified but is in the
process of a classification determination -- the Executive Branch was
willing to accommodate the concerns of those who objected to the use
of this particular term.  These efforts, unfortunately, did not reach
fruition before Congress enacted Section 630.  /23/ After Section 630
was enacted, however, the DCI and Director of ISOO replaced Form 4193
and SF 189 on a prospective basis with Form 4355 and SF 312, which do
not contain the word "classifiable." Furthermore, in September 1988,
the DCI and Director of ISOO issued general directives that deleted
the word "classifiable" from all outstanding Form 4193 and SF 189
agreements and substituted in its place a more precise description of
the concept to which that term was intended to apply:  (i) information
that is marked classified, (ii) information that is unmarked but
classified (including oral communications), and (iii) information that
meets the standards for classification under a pertinent Executive
Order and is in the process of a classification determination.  See
pages 13-14, supra.

   The deletion of the term "classifiable" removes any basis for a
claim by appellants that outstanding Form 4193 and SF 189 agreements
violate subsection (2) of Section 630, and the substitute language
ensures that those agreements (like the new Form 4355 and SF 312) are
narrowly drawn and will be fully understood by the signatories to
apply only to those categories of information that are at the core of
the President's constitutional duty to protect the national security.
In addition, the three categories of information specified in the
revised agreements are the same as those listed in subsection (1) of
Section 630.  The steps taken by the DCI and Director of ISOO
therefore have the effect of bringing the substantive scope of the
nondisclosure forms into harmony with Section 630.  /24/ The Senate,
House of Representatives and ACLU, appearing as amici curiae, agree
that Congress's principal concerns in enacting Section 630 have been
satisfied by the deletion of the term "classifiable" from all
nondisclosure agreements.  Senate Br. 8, 14;  House Br. 2-3, 4, 11,
14;  ACLU Br. 20, 23-28.  See also 135 Cong. Rec. S1161-S1162 (daily
ed. Feb. 2, 1989) (statement of Senator Mitchell supporting resolution
authorizing filing of Senate's brief in this case).

   Appellants' two remaining objections concern subsection (1) of
Section 630 -- because existing nondisclosure agreements do not
require actual (subjective) knowledge -- and subsections (3), (4) and
(5) -- because signatories of the nondisclosure agreements have not
been individually notified that such agreements do not interfere with
any preexisting rights they may have to communicate with Members of
Congress about matters involving classified information.  The Senate,
House of Representatives and ACLU urge the Court not to address these
issues, because, in their view, those questions are not ripe for
judicial resolution in this case.  Senate Br. 15-23;  House Br. 12-16;
 ACLU Br. 28-48.  We agree with the amici that the remaining aspects
of this case do have a highly abstract and speculative quality.  This
is in part attributable to the failure by appellants to identify any
concrete instance in which an employee disclosed unmarked information
that he should have known was classified, or in which an employee
disclosed national security information to a Member of Congress
without prior authorization.  /25/

   In our view, however, the abstract and speculative nature of the
remaining aspects of this case is attributable not only to appellants'
failure to prove their case, but also to the fact that subsections
(1), (3), (4) and (5) of Section 630 did not receive the same focused
attention that at least some Members of Congress gave to the use of
the term "classifiable" in the nondisclosure forms.  Perhaps this
accounts for the language in those subsections that, if read
expansively, could substantially interfere with the President's
constitutional authority to limit dissemination of and access to
national security information, without any attempt to take account of
competing concerns of the Executive Branch.  In fact, the subsections
dealing with the furnishing of classified information to Congress
appear essentially to be unilateral and sweeping assertions of
prerogatives by one political Branch at the expense of the other,
rather than a studied legislative response to the sensitive problems
involved in the sharing of confidential information between the
Branches (such as that embodied in the Classified Information
Procedures Act (CIPA), 18 U.S.C. App. at 595).

   Like the amici, we do not believe that subsections (1), (3), (4)
and (5) of Section 630 should be read to invalidate any provisions of
the existing nondisclosure agreements, especially in light of the
serious constitutional questions that would be presented by a contrary
construction.  But we nevertheless have substantial concerns about
Congress's view -- which seems to have animated the enactment of 630
-- of the scope of its power to intrude upon the President's ability
to control national security information within the Executive Branch.
We also are concerned that the mere existence of a statute that could
be read to insulate employees who make negligent or unauthorized
disclosures from any sanctions may undermine the "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, 444 U.S. at 509 n.3.

   B. SECTION 630 CANNOT CONSTITUTIONALLY BE APPLIED TO DEPRIVE THE
PRESIDENT OF HIS AUTHORITY TO PREVENT THE NEGLIGENT RELEASE OF
NATIONAL SECURITY INFORMATION BY HIS SUBORDINATES

   Subsection (1) of Section 630 provides that appropriated funds may
not be used to implement or enforce a nondisclosure policy, form, or
agreement that "concerns information other than that specifically
marked classified;  or, unmarked but known by the employee to be
classified;  or, unclassified but known by the employee to be in the
process of a classification determination." Appellants contend (Br.
19-20, 36-37) that appellees are not in compliance with subsection (1)
of Section 630 because the nondisclosure forms at issue in this case
do not expressly require as a condition of liability that the employee
know of that protected status.  /26/ In appellants' view, Congress may
constitutionally prohibit the President and other Executive Branch
officials from taking any action -- even limiting further access to
national security information -- against an employee who disclosed
information that he should have known was classified or who
negligently failed even to check on its classified status before doing
so.  We disagree with appellants on both constitutional and statutory
grounds.

   1. Appellants are clearly wrong in contending that Congress may
constitutionally bar the President from providing for the taking of
disciplinary action against an Executive Branch employee -- or even
from denying him further access to classified information -- if the
employee makes an unauthorized disclosure of national security
information that is "only" reckless or negligent, rather than
intentional.  The former type of disclosure can cause as much harm to
the national security as the latter:  intelligence sources may dry up,
a foreign government whose confidences were betrayed may be offended,
or a hostile power may use the information to its advantage.  Neither
type of security breach can be tolerated, and the Constitution vests
the President with the necessary tools to prevent and deter both.

   As we have explained above (see pages 24-28, supra), the
Constitution itself confers on the President the authority to classify
and control access to information bearing on the national defense and
foreign relations of the United States and to determine whether a
person is sufficiently trustworthy to occupy a position in which he
will have access to such information.  "'As to these areas of Art. II
duties the courts have traditionally shown the utmost deference to
Presidential responsibilities'" (Egan, slip op. 11, quoting United
States v. Nixon, 418 U.S. 683, 710 (1974)).  Accordingly, neither the
courts nor Congress may lightly disable the President from taking
measures that he concludes are necessary to protect such information
within the Executive Branch, including measures designed to prevent
negligent as well as knowing disclosures.

   The Constitution imposes on the President the duty to "take Care
that the Laws be faithfully executed" (Art. II, Section 3).  That duty
requires the President to exercise the utmost caution and discretion
in guarding the Nation's secrets, and to select as his immediate
assistants persons in whom he has complete confidence to do the same.
Those agency heads in turn must select subordinate officers and
employees in whom they have sufficient confidence to warrant
entrusting them with classified information.  As this Court recently
explained, "the protection of classified information must be committed
to the broad discretion of the agency responsible, and this must
include broad discretion to determine who may have access to it."
Egan, slip op. 10.  In fact, Egan reiterated the observation in Cole
v. Young that "'there is a reasonable basis for the view that an
agency head who must bear the responsibility for the protection of
classified information committed to his custody should have the final
say in deciding whether to repose his trust in an employee who has
access to such information'" (slip op. 10 (emphasis added) (quoting
351 U.S. at 546)).  See also Webster v. Doe, slip op. 7 ("the Agency's
efficacy, and the Nation's security, depend in large measure on the
reliability and trustworthiness of the Agency's employees").

   If an employee's negligent disclosure of protected national
security information causes the responsible official to lose
confidence in the assurance that the employee will not compromise such
information in the future, that official must, at a minimum, have the
authority to deny the employee further access to classified
information.  This conclusion follows from the settled Executive
Branch practice, approved by this Court, in granting security
clearances.  It is firmly established that an employee has no "right"
to a security clearance.  Rather "(t)he grant of a clearance requires
an affirmative act of discretion on the part of the granting
official," and "(t)he general standard is that a clearance may be
granted only when 'clearly consistent with the interests of the
national security'" (Egan, slip op. 9 (quoting Exec. Order No. 10,450,
Sections 2 and 7, 3 C.F.R. 936-937, 938 (1949-1953 Comp.)).  /27/ The
responsible official unquestionably could decide that it would not be
"clearly consistent" with the national security to grant continued
access to an employee who made an unauthorized disclosure of
information that he should have known was classified or in the process
of a classification determination.  See also Cole v. Young, 351 U.S.
at 550 (a "security risk" is present if a person might make an
"intentional or inadvertent disclosure of confidential information").
/28/

   A negligent disclosure of classified information may properly give
rise to disciplinary action as well.  Even where the right of a
superior to remove an officer or employee of the Executive Branch is
subject to limitation by Congress, the President's duty to "take Care"
requires at a minimum that he be able to remove (or to direct the
removal of) a subordinate official for "cause." See Morrison v. Olson,
No. 87-1279 (June 29, 1988), slip op. 33-34.  The unauthorized
disclosure of national security information that an employee should
have known was classified or in the process of a classification
determination would in many circumstances be cause for removal, and
would unquestionably be cause for at least some disciplinary action in
virtually all cases.

   As the Court recognized in Snepp, when an individual is granted
access to the Nation's most sensitive secrets, he enters into a
special fiduciary relationship with the government that entails a high
degree of trust.  444 U.S. at 510-511 & n.5;  see also Webster v. Doe,
slip op. 7-8;  United States v. Marchetti, 466 F.2d 1309, 1313 (4th
Cir.), cert. denied, 409 U.S. 1063 (1972).  It is self-evident that
such an employee may properly be held to an exacting degree of care in
handling the secrets with which he is entrusted.  Moreover, before an
individual is granted access to classified information, he is briefed
on the provisions of the current Executive Order on classification,
pertinent regulations concerning handling, storage and protection of
classified information, and his responsibilities and liabilities with
respect to that information.  /29/ It therefore is manifestly fair, as
well as important to the national security, that a person be held
accountable for the unauthorized disclosure of information that he
reasonably should know is classified or in the process of a
classification determination.  /30/ If the employee has any doubt
about whether particular information may be disclosed, he must err on
the side of nondisclosure and inquire about the classified status of
the information.  Compare Snepp, 444 U.S. at 512.

   Nor have appellants offered any compelling justification for an Act
of Congress that would override the President's constitutional
authority to impose this duty of care on Executive Branch employees
who have access to national security information.  Surely it is not
justified by the First Amendment.  This Court and other courts have
already sustained various limitations on expression in the context of
the fiduciary relationship involving access to classified information
(Snepp, 444 U.S. at 509 n.3;  United States v. Marchetti, 466 F.2d
1309 (4th Cir.), cert. denied, 409 U.S. 1063 (1972);  McGehee v.
Casey, 718 F.2d 1137 (D.C. Cir. 1983)), as well as military command
(Brown v. Glines, 444 U.S. 348, 354 (1980);  Parker v. Levy, 417 U.S.
733, 759 (1974)).  "Even when not confronted with the special
requirements of the military, (the Court) ha(s) held that a
governmental employer may subject its employees to such special
restrictions on free expression as are reasonably necessary to promote
effective government." Brown v. Glines, 444 U.S. at 356 n.13;  see
Rankin v. McPherson, No. 85-2068 (June 24, 1987), slip op. 5, 10;
Connick v. Myers, 461 U.S. 138, 140 (1983);  CSC v. Letter Carriers,
413 U.S. 548, 565 (1973).

   2. For the foregoing reasons, Congress may not constitutionally
prohibit the President from denying further access to classified
information to (or taking other appropriate action against) an
employee who negligently disclosed information that he should have
known was classified and who failed to inquire about its classified
status before he did so.  However, we do not believe that Congress
took that extreme step when it enacted subsection (1) of Section 630.
/31/ To the contrary, like the Senate (Senate Br. 16-18), we believe
that the nondisclosure forms adopted by the DCI and Director of ISOO
are fully consistent with subsection (1).

   Form 4355 states that an employee may not disclose information that
he knows to be classified or in the process of a classification
determination, and it imposes on the employee a duty to consult with
appropriate management authorities in order to ensure that he knows
whether information he has reason to believe is SCI is in fact
regarded by the agency to be SCI (J.A. 55).  SF 312 provides that the
signatory will not disclose classified information (including that
which is unmarked or in the process of a classification determination)
without proper authorization, and it imposes a duty on the signatory,
if he is uncertain about the classification status of the information,
to confirm that the information is unclassified before disclosing it
(J.A. 66-67).

   The Senate takes the position that the duty to inquire imposed by
Form 4355 and SF 312 does not conflict with subsection (1) of Section
630.  The Senate argues (Br. 17-18) that "(n)either the purpose of
section 630 nor the text of subsection (1) suggests that Congress
intended to deny to the executive the power to require employees to
take reasonable steps to learn whether information is classified or is
undergoing a classification review, as long as they are not required
to speculate about the actions of government classifiers." We agree.
If the employee abides by this distinct duty to inquire, he will know
prior to any occasin for disclosure whether a particular item of
unmarked information is either classified or in the process of a
classification determination, and subsection (1) therefore will not be
implicated.  Moreover, the employee's inquiry presumably will produce
a clear answer about the current status of the information, which was
the concern that led Congress to enact the related prohibition against
use of the term "classifiable." See pages 29-30, supra.  Appellants do
not in any event challenge the duty-to-inquire feature of Form 4355
and SF 312, and subsection (1) should be construed to authorize that
feature in order to avoid the serious constitutional question that
would be presented if the President were barred from insisting that
employees who have access to national security information take at
least that precaution.

   Appellants do object in passing (See Br. 15, 20) to the statement
in the regulations published by the Director of ISOO on September 29,
1988, that a person who has signed an SF 189 or 312 "may be liable for
disclosing 'classified information' only if he or she knows or
reasonably should know" that unmarked information is classified or
meets the standards for classification and is in the process of a
classification determination.  32 C.F.R. 2003.20(h)(3), as added, 53
Fed. Reg. 38,279 (Sept. 29, 1988).  However, appellants' complaint in
district court challenged only the nondisclosure forms (J.A. 8-10),
and the validity of the cited ISOO regulation therefore is not
properly before the court.  See ACLU Br. 34-35 & n.26.  /32/ Moreover,
questions concerning the meaning and validity of ISOO's
standard-of-care regulation should await a concrete factual context in
which the regulation is actually applied.  See note 25, supra.  /33/

   C. SECTION 630 CANNOT CONSTITUTIONALLY BE APPLIED TO DIVEST THE
PRESIDENT OF ALL CONTROL OVER THE DECISION WHETHER TO DISCLOSE
NATIONAL SECURITY INFORMATION TO CONGRESS

   As relevant here, the remaining provisions of Section 630 concern
the furnishing of national security information by Executive Branch
personnel to Congress.  Subsection (3) provides that appropriated
funds may not be used to implement a nondisclosure agreement that
"directly or indirectly obstructs, by requirement of prior written
authorization * * * or otherwise, the right of any individual to
petition or communicate with Members of Congress in a secure manner as
provided by the rules and procedures of the Congress;" subsection (4)
bars any agreement that "interferes with the right of Congress to
obtain executive branch information in a secure manner as provided by
the rules and procedures of Congress;" and subsection (5) prohibits
any agreement that "imposes any obligations or invokes any remedies
inconsistent with statutory law."

   The language of these provisions bespeaks an inclination on the
part of Congress to seek broad access to national security information
in the Executive Branch by removing decision-making about
congressional access from the usual channels in the Executive Branch
and allowing lower-ranking employees to decide for themselves whether
to divulge such information to Congress or its Members.  If Section
630 actually enacted such a reordering into law, it clearly would be
unconstitutional.  As it happens, all parties agree that subsections
(3), (4) and (5) do not confer such a right on Executive Branch
personnel.  See pages 48-50, infra.  Nevertheless, the implications of
such a statute furnish a useful backdrop for consideration of the
remaining objection advanced by appellants.

   1. We have explained above that the President's roles as Commander
in Chief, head of the Executive Branch, and sole organ of the Nation
in its external relations require that he have ultimate and unimpeded
authority over the collection, retention and dissemination of
intelligence and other national security information in the Executive
Branch.  There is no exception to this principle for those
disseminations that would be made to Congress or its Members.  In that
context, as in all others, the decision whether to grant access to the
information must be made by someone who is acting in an official
capacity on behalf of the President and who is ultimately responsible,
perhaps through intermediaries, to the President.  The Constitution
does not permit Congress to circumvent these orderly procedures and
chain of command -- and to erect an obstacle to the President's
exercise of all executive powers relating to the Nation's security --
by vesting lower-level employees in the Executive Branch with a
supposed "right" to disclose national security information to Members
of Congress (or anyone else) without the authorization of Executive
Branch personnel who derive their authority from the President.  Such
a law would squarely conflict with the Framers' considered judgment,
embodied in the Commander-in-Chief and related Clauses of Article II,
that all power in matters of national defense and foreign affairs in
the Executive Branch must be vested in a single hand.  /34/

   Presidents have on numerous occasions exercised their authority
over national security information as against requests by Congress for
access to it.  In fact, it has been recognized since the adoption of
the Constitution that intelligence and other secret information
obtained by the Executive Branch in the performance of its
responsibilities in the areas of defense and foreign relations may
properly be withheld from Congress, in order to provide the firmest
assurance of confidentiality.  As John Jay explained in the The
Federalist No. 64, at 392-393:

         It seldom happens in the negotiation of treaties, of whatever
      nature, but that perfect secrecy and immediate dispatch are
      sometimes requisite.  There are cases where, the most useful
      intelligence may be obtained, if the persons possessing it can
      be relieved from apprehensions of discovery.  Those
      apprehensions will operate on those persons whether they are
      actuated by mercenary or friendly motives;  and there doubtless
      are many of both descriptions who would rely on the secrecy of
      the President, but who would not confide in that of the Senate,
      and still less in that of a large popular assembly.  The
      convention have done well, therefore, in so disposing of the
      power of making treaties that although the President must, in
      forming them, act by the advice and consent of the Senate, yet
      he will be able to manage the business of intelligence in such
      manner as prudence may suggest.

   See also id. No. 75, as 452 (Hamilton).  Consistent with this view,
President Washington, less than ten years later, refused to accede to
the request by the House of Representatives for the instructions,
correspondence, and documents relating to the negotiation of the Jay
Treaty -- "a refusal the wisdom of which was recognized by the House
itself and has never since been doubted." Curtiss-Wright, 299 U.S. at
320.  See 1 Richardson, Messages and Papers of the President 194
(1896).  /35/

   Later, when Jefferson was President, he declined to furnish certain
material about the Burr conspiracy in response to a House resolution
that itself contemplated that the President could withhold such
information "as he may deem the public welfare to require not to be
disclosed" (16 Annals of Cong. 336 (1807)).  From that time to the
present day, information has been withheld on numerous occasions by
most of our Presidents, on the ground that disclosure would not be
consistent with the public interest.  /36/ Relying on many of these
precedents, Attorney General (later Justice) Jackson, with the
approval and at the direction of the President, declined to comply
with a request by the House Committee on Naval Affairs for FBI records
concerning labor disputes and subversive activities at industrial
establishments having naval contracts.  40 Op. Att'y Gen. 45 (1941).
He explained that "the results of counterespionage activities and
intelligence activities of (the Justice) Department involving those
elements are kept within the fewest possible hands" and "cannot be too
closely guarded," because the information would be "of inestimable
service to foreign agencies" (id. at 46).

   History thus confirms that the Executive Branch may properly
decline to grant Members of Congress access to national security
information and that the decision whether to do so must be made by the
President or by another Executive Branch official who is accountable
to him.  /37/ This arrangement parallels the decision regarding the
assertion of the state secrets privilege in court, which must be
"lodged by the head of the department which has control over the
matter, after actual personal consideration by that officer." United
States v. Reynolds, 345 U.S. 1, 8 (1953) (footnote omitted);  compare
United States v. Nixon, 418 U.S. 683, 710 (1974);  United States v. AT
& T, 567 F.2d 121, 129 (D.C. Cir. 1977).  Congress cannot undermine
this constitutional arrangement by, e.g., conferring a right on an
Executive Branch employee to furnish a Member of Congress with
information on treaty negotiations that the President has decided
should be withheld.

   This is not to say, of course, that there should be an inflexible
rule calling for the routine withholding of all classified information
from all Members of Congress.  To the contrary, the sharing of
confidential information in appropriate circumstances has been -- and
will continue to be -- a proper subject of accommodation between the
political Branches.  But in light of the extreme sensitivity of the
information concerned, both the Executive Branch and Congress have
recognized that such communications must be conducted through the
secure channels established by the Branches working in cooperation.
One concrete example of this approach is the extensive cooperation
between the relevant congressional committees, including the Select
Committees on Intelligence in both Houses, and the Executive Branch
agencies for which those committees have oversight responsibility.  We
have been informed by the CIA that it provided 66 classified briefings
to Members of Congress and 711 classified briefings for congressional
staff in 1988, and 111 classified briefings for Members and 738
classified briefings for staff in 1987.  Similarly, the National
Security Agency made more than 175 classified briefings and
submissions to committee members and staff in 1988.  These briefings,
which were conducted through the official channels maintained by the
congressional affairs office of each agency, were in addition to
formal testimony and various required reports, such as those submitted
pursuant to 50 U.S.C. 413.

   This approach of furnishing information through established agency
channels to the relevant committees is faithful to one of the
fundamental principles of the President's program for assuring the
fullest possible protection for national security information --
namely, that a person may be granted access to a particular item of
classified information only if he has a "need to know" that
information for furtherance of official functions.  The need-to-know
principle is set forth in Executive Order 12,356 itself -- the
instrument through which the President maintains his authority over
classified information within the Executive Branch -- which provides
that access may be granted only where it "is essential to the
accomplishment of lawful and authorized Government purposes" (Section
4.1(a)).  This restriction serves to keep the information in the
fewest possible hands, consistent with the performance of official
business, and thereby maximizes the opportunity for control,
accountability, and protection against compromise.  The need-to-know
restriction applies throughout the Executive Branch, even to Cabinet
Secretaries.  There is no reason why it should not apply to Members of
Congress as well.  This important limitation is preserved when
national security information is furnished through official agency
channels to a relatively few Members of Congress who serve on a
committee that has been designated by that House to be responsible for
a particular jurisdiction in the area of defense, foreign affairs or
intelligence.  Congress in fact acted on this view when it provided by
statute for the furnishing of reports and information on intelligence
matters through official channels to the Intelligence Committee of
each House.  50 U.S.C. 413.  By contrast, if all lower-ranking
Executive Branch personnel were free to furnish national security
information directly to any of 535 individual Members of Congress, the
principle of limited and focused access based on a demonstrated need
to know would be obliterated -- and with it the safeguards of control
and accountability.  No system of information security could be
effective if each individual having access to classified information
could determine for himself what information may be disclosed, to
whom, and when.  /38/ Cf. Snepp, 444 U.S. at 512 ("When a former agent
relies on his own judgment about what information is detrimental, he
may reveal information that the CIA -- with its broader understanding
of what may expose classified information and confidential sources --
could have identified as harmful.").  /39/

   The difficulties with such a regime would be exacerbated by the
distinct institutional nature of a legislative body, which is
comprised of numerous and largely autonomous members who (unlike
Executive Branch personnel) are not personally accountable to any
single officer.  These institutional considerations may create
additional problems in maintaining confidentiality within the
Legislative Branch.  /40/

   2. For the foregoing reasons, it is clear that the Constitution
would not permit Congress to divest the President of his control over
national security information in the Executive Branch by vesting
lower-ranking personnel in that Branch with a "right" to furnish such
information to a Member of Congress without receiving official
authorization to do so.  As it happens, however, appellants concede
(Br. 17-18, 30, 38-39, 44-45) that subsection (3) of Section 630 does
not confer such a right on Executive Branch employees and that
subsection (4) does not confer a right on Congress to receive national
security information.  Instead, appellants concede, those subsections
simply prohibit the nondisclosure agreements utilized by Executive
agencies from imposing any new burden (such as a requirement of prior
approval) upon the exercise of whatever preexisting right (if any)
those employees might have (e.g., under the First Amendment or any
statutes incorporated by subsection (5) of Section 630, such as 5
U.S.C. 7211) to furnish classified information to Congress or of
whatever preexisting right Congress might have to receive it.  We
agree, for the reasons given by appellants (see Br. 38-40), that
subsections (3), (4) and (5) confer no new substantive rights on
Executive Branch personnel or Congress, and so do amici ACLU (Br.
42-43) and AFL-CIO/AFGE (Br. 10-11, 12, 26).  /41/

   In any event, no claim under subsection (4) of Section 630 is
properly before the Court, because appellant AFSA and its members do
not have standing to raise a claim concerning the "right" of Congress
to receive information, and individual Members of Congress do not have
standing to vindicate the rights of Congress or either of its Houses
(see J.S. App. 13a-14a).  Moreover, as the district court recognized
(J.S. App. 26a), the requirement that Executive Branch personnel
obtain prior approval before disclosing classified information to
Congress does not interfere with any "right" of Congress to receive
information from the Executive Branch.  Any right of Congress in this
regard must ultimately be vindicated through official channels, such
as by the issuance of a subpoena, which will trigger a response from
the agency head or other authorized official.  Cf. Touhy v. Ragen, 340
U.S. 462 (1951).  /42/

   Insofar as subsection (3) is concerned, appellants represent (Br.
45) that they are not asking the Court to pass on the extent of what
"right" employees might enjoy from other sources -- such as the First
Amendment or statutes preserved by subsection (5) -- to furnish
national security information to Congress.  /43/ The only relief they
seek is an order requiring the appellee federal officials to notify
all persons who have signed the nondisclosure agreement forms that no
requirement of prior authorization can be applied to communications
with Congress where the signatory has a preexisting right from another
source to furnish the informtion to Congress or Congress has a
preexisting right to receive it.  See Appellants' Br. 18, 30, 38, 45,
48.  But subsection (3) says nothing about furnishing notice (see ACLU
Br. 26, n.17);  it only bars implementation or enforcement of
nondisclosure forms that interfere with whatever "right" employees
might have to furnish information to Congress.  And because appellants
do not ask this Court to decide whether the appellee federal officials
have violated such a right, there is no basis for the Court to order
notice as a "remedy" for what would be at most a hypothetical
statutory violation.

                              CONCLUSION

   The judgment of the district court sustaining the validity of the
nondisclosure forms and denying appellant equitable relief should be
affirmed.

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General

   JOHN R. BOLTON

      Assistant Attorney General

   THOMAS W. MERRILL

      Deputy Solicitor General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   BARBARA L. HERWIG

   FREDDI LIPSTEIN

      Attorneys

   FEBRUARY 1989

   /1/ The designations Top Secret, Secret, and Confidential apply to
information whose unauthorized disclosure could be expected to cause,
respectively, "exceptionally grave damage," "serious damage," and
"damage" to the national security (Sections 1.1(a)(1)-(3)).

   /2/ Section 1.3(a) provides that information shall be considered
for classification if it concerns (1) "military plans, weapons, or
operations;" (2) "the vulnerabilities or capabilities of systems,
installations, projects, or plans relating to the national security;"
(3) "foreign government information;" (4) "intelligence activities
(including special activities), or intelligence sources or methods;"
(5) "foreign relations or foreign activities of the United States;"
(6) scientific, technological, or economic matters relating to the
national security;" (7) "programs for safeguarding nuclear materials
or facilities;" (8) "cryptology;" and (9) "a confidential source."

   /3/ Not all classified information is marked.  Raw intelligence or
an agent's report may not bear classification markings until it is
processed, and an employee's or former employee's manuscript that
contains classified information would not bear classification markings
until it is reviewed pursuant to a prepublication agreement;  in each
case, however, the information is classified.  See Prepublication
Review and Secrecy Agreements:  Hearings Before the Subcomm. on
Oversight of the House Permanent Select Comm. on Intelligence, 96th
Cong., 2d Sess. 39-41 (1980).

   /4/ The National Security Act merely restates the broad authority
previously granted to the DCI by the President pursuant to his
inherent constitutional authority.  Presidential Directive of Jan. 22,
1946, 3 C.F.R. 1080 (1943-1948 Comp.);  see CIA v. Sims, 471 U.S. at
172-173.

   /5/ The signatory also agreed to submit for security review all
materials intended for publication that contain or purport to contain
SCI or information relating to or derived from SCI (id. Paragraph 4
(J.A. 20)).  The prepublication review provisions of the forms are not
at issue here.

   /6/ The Director of ISOO previously had sought to clarify the
meaning of the term "classifiable information" in notices published on
August 3 and August 11, 1987, before the NFFE and AFGE suits were
filed.  See 52 Fed. Reg. 28,802, 29,793 (1987).

   /7/ Although Section 630 uses the term "Standard Form" to refer to
both SF 189 and Form 4193, the latter is actually not a standard form
subject to generally applicable requirements;  it was issued pursuant
to the special authority of the DCI.

   /8/ The term "classified" in Form 4355 refers to both marked and
unmarked classified information.

   /9/ The DCI interpreted Section 630 not to bar Form 4193
altogether, but only to preclude implementation or enforcement of
those features of Form 4193 that may be inconsistent with Subsections
(1)-(5) of Section 630.

   /10/ As a threshold matter, the court held that the appellant
Members of Congress lack standing to challenge the form agreements
under Section 630 because they can seek relief by participating in the
legislative process (J.S. App. 13a-14a).  The court found, however,
that appellant AFSA and the unions in NFFE and AFGE have standing to
challenge the agreements under Section 630 because they alleged that
some of their individual members had been chilled in the exercise of
their First Amendment rights as a result of the implementation and
threatened enforcement of those agreements (id. at 14a-18a;  see also
id. at 20a-22a), and that the three individual plaintiffs in AFGE who
had signed forms prior to December 22, 1987, also had standing to
object to the forms under the subsequently enacted Section 630 (id. at
18a-19a).  Although appellants listed as a question presented in their
Jurisdictional Statement (at i) the question whether the district
court had properly denied standing to the individual Members of
Congress, they have omitted that issue from the questions presented in
their merits brief (at i) and they have not addressed it in the body
of either the Jurisdictional Statement or their brief on the merits.

   /11/ The district court also rejected several additional claims
advanced only by the plaintiffs in NFFE and AFGE.  First, the court
held that the nondisclosure agreements do not violate the
whistleblower provision of the Civil Service Reform Act, because that
provision excepts from protection any disclosure of information that
is "'specifically required by Executive order to be kept secret in the
interest of national defense or the conduct of foreign affairs'" (J.S.
App. 30a-31a, quoting 5 U.S.C. 2302(b)(8)(A)) and because enforcement
of the whistleblower provision is in any event committed to the
Special Counsel of the Merit Systems Protection Board, rather than a
private right of action (J.S. App. 31a, citing 5 U.S.C.
1206(c)(1)(A)).  Second, the court rejected as frivolous the claims
that the agreements violate an uncodified Code of Ethics for
Government Service, Pub. L. No. 96-303, Section 3, 94 Stat. 855 (J.S.
App. 31a-32a), the Copyright Clause of the Constitution, Art I,
Section 8, Cl. 8 (J.S. App. 33a), and the Freedom of Information Act,
5 U.S.C. 552 (J.S. App. 34a).  Third, the court dismissed for failure
to state a claim the contention that Form 4193 violates NSDD 84 (J.S.
App. 32a).  Fourth, the court ruled that differences between SF 189
and a form used for government-contractor employees are rational (J.S.
App. 28a-30a).

   /12/ The NFFE and AFGE plaintiffs have appealed the final judgment
in those cases to the Court of Appeals for the District of Columbia
Circuit, Nos. 88-5404 and 88-5402.

   /13/ As noted above (see pages 9-10, supra), the DCI previously had
replaced Form 4193 with Form 4355, which also omits the term
"classifiable."

   /14/ When the President signed the 1989 Act, he expressed serious
reservations about the constitutionality of Section 619.  The
President explained that "(o)ur Nation's security depends upon our
success in diplomatic, military, and intelligence activities, and that
success depends upon our ability to protect the Nation's secrets";
and he stressed that he has the "constitutional responsibility to
ensure the secrecy of information whose disclosure would threaten our
national security" (24 Weekly Comp. Pres. Docs. 1189 (Sept. 23,
1988)).  The President therefore directed that, in accordance with his
sworn obligation to preserve, protect, and defend the Constitution
(see Art. II, Section 1, Cl. 8), Section 619 would be considered to be
of no force and effect unless and until this Court reverses the
district court's ruling in the instant case holding the identical
provisions in Section 630 of the 1988 Act unconstitutional (ibid.).

   /15/ See 1 Annals of Cong. 512 (1789) (remarks of Rep. Vining)
("The Departments of Foreign Affairs and War are peculiarly within the
powers of the President, and he must be responsible for them"), quoted
in Myers, 272 U.S. at 124-125.

   /16/ In Marbury v. Madison, Chief Justice Marshall referred to the
Act establishing the Department of Foreign Affairs as an illustration
of a case in which the acts of officers appointed by the President
"(t)o aid him in the performance of these duties" are "his acts" (5
U.S. (1 Cranch) at 166).  The office of the Secretary of Foreign
Affairs of course was the subject of the "Decision of 1789," in which
Congress recognized that the Constitution requires the Secretary to
serve at the pleasure of the President.  See Bowsher v. Synar, 478
U.S. 714, 723-724 (1986);  Humphrey's Executor, 295 U.S. at 631;
Myers, 272 U.S. at 111-126.

   /17/ In Humphrey's Executor, the Court held that its conclusion in
Myers regarding the President's illimitable power of removal did not
apply to members of the Federal Trade Commission;  but the Court did
not disturb the reasoning of Myers as to "purely executive" officers,
such as the Secretary of Foreign Affairs, at issue in the Decision of
1789.  See 295 U.S. at 631.  In Morrison v. Olson, No. 87-1279 (June
29, 1988), although the Court sustained the statutory provisions that
permit the President to remove an Independent Counsel only for
"cause," it stressed that "Myers was undoubtedly correct in its
holding, and in its broader suggestion that there are some 'purely
executive' officials who must be removable by the President at will if
he is to be able to accomplish his constitutional role." Slip op. 31.
Surely, the Secretary of State, the Secretary of Defense, the DCI, and
other officers who assist the President in the areas of national
defense and foreign relations must fall in that category.

   /18/ See Chicago & Southern Air Lines, Inc. v. Waterman Steamship
Corp., 333 U.S. 103, 110 (1948) ("Legislative and Executive powers are
pooled obviously to the end that commercial strategic and diplomatic
interests of the country may be coordinated and advanced without
collision or deadlock between agencies.").

   /19/ Appellants rely (Br. 27) on Justice Jackson's concurring
opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
637-638 (1952), for the proposition that the President's power is at
its "lowest ebb" when he takes action incompatible with the will of
Congress.  However, Youngstown involved an effort by the President to
take control of private property, not, as here, the authority of the
President to direct the actions of his subordinates within the
Executive Branch who assist in the performance of his constitutional
duties.  Here, unlike in Youngstown, the President unquestionably has
inherent powers stemming from his role as Commander in Chief and the
Nation's representative in foreign affairs.  It is the power of
Congress, not that of the President, that is at its "lowest ebb" when
an Act of Congress would frustrate the President's accomplishment of
that role.

   /20/ See also Chicago & Southern Air Lines, 333 U.S. at 111 ("The
President, both as Commander-in-Chief and as the Nation's organ for
foreign affairs, has available intelligence services whose reports are
not and ought not to be published to the world.").

   /21/ Contrary to the assertion by appellants (Br. 26) and amici
(House Br. 20), our submission in no way calls into question the
statutes that provide for the regulation and mandatory disclosure of
non-classified documents in the possession of the Executive Branch,
such as FOIA, 5 U.S.C. 552, the Privacy Act, 5 U.S.C. 552a, or the
Government in the Sunshine Act, 5 U.S.C. 552(b).  Appellants rely (Br.
24) on EPA v. Mink, 410 U.S. 73, 83 (1973), where the Court said of
the FOIA national security exemption that "Congress could certainly
have provided that the Executive Branch adopt new procedures or it
could have established its own procedures -- subject only to whatever
limitations the Executive privilege may be held to impose upon such
congressional ordering." But EPA v. Mink does not assist appellants
here, because this case involves precisely such limitations on
congressional ordering.  As we explain below, although Congress has
not sought to limit the substantive information that the President may
require to be kept secret in the interest of national security,
Congress has enacted provisions that, as appellants view them, would
impede the President's ability to ensure that such information in fact
will be kept confidential and that access to it will be limited to
those who have a need to know.

   This factor distinguishes the Presidential Recordings and Materials
Preservation Act, 44 U.S.C. 2107 note, which was at issue in Nixon v.
Administrator and which appellants cite (Br. 26, 34).  There, as this
Court was careful to point out (433 U.S. at 443-446, 449-451),
Congress placed control over the dissemination of documents in the
hands of an Executive Branch official and assured an opportunity for
assertion by the President of the privilege for confidential
communications.  Moreover, contrary to appellants' apparent assertion
(Br. 26), Nixon v. Administrator did not involve the application of
the Materials Act to national security information.

   /22/ As noted above (see page 15, supra), the substance of Section
630 was reenacted in Section 619 of the 1989 Act.  For convenience, we
shall refer only to Section 630.

   /23/ As noted above (see note 6, supra), the Director of ISOO
sought to clarify the meaning of the term "classifiable" in notices
published in the Federal Register on August 3 and 11, 1987 (see 52
Fed. Reg. 28,802, 29,793 (1987)).  Senator Grassley, a leading
congressional critic of the term "classifiable" in then-existing
forms, had sought to resolve the controversy by proposing a definition
identical to that subsequently published by the Director of ISOO on
December 21, 1987 (1987 Hearing at 10-12, 101;  52 Fed. Reg. 48,367
(1987)), and subsection (1) of Section 630 (which was enacted on
December 22, 1987) manifests agreement with that definition (see pages
30-32, infra).  See also Aff. of Sen. Grassley Paragraphs 5-7 (Nov.
18, 1987) (J.A. 38-39).

   /24/ Appellants complain (Br. 15, 20) that former employees who
previously signed Form 4193 or SF 189 have not been individually
notified of the substitution of more precise language for the term
"classifiable." Individualized notice of the substitution was
furnished to current employees pursuant to the district court's
September 26, 1988, order in the companion NFFE and AFGE cases (J.A.
65), which was based on the First Amendment, not Section 630.  The
district court in those cases did not extend individualized
notification relief to former employees, and the DCI and Director of
ISOO did not order federal agencies to furnish such notice because of
the administrative burden of tracking down persons who have left those
agencies.  The same considerations would weigh heavily against
ordering individualized notice to former employees under Section 630
in this case.

   In any event, subsection (2) of Section 630, upon which appellants
rely, says nothing about furnishing individualized notice to anyone,
whether a present or former employee.  See ACLU Br. 26 n.17.  It
simply bars the use of appropriated funds to "implement or enforce" a
form or agreement that "contains the term 'classifiable.'" By virtue
of the deletion of the term "classifiable," no outstanding Form 4193
and SF 189 agreement "contains" that term, and it is clear that
appropriated funds are not being used to implement or enforce it.  See
Senate Br. 14.  Individualized notice to former employees would be
inappropriate in this case for the additional reasons that:  (i) no
individual former (or present) employee was a plaintiff in this case;
(ii) the complaint in this case identified appellant AFSA (the only
non-congressional plaintiff) as a "professional and labor association
of foreign service employees" (J.A. 6) and made no mention of former
employees;  and (iii) the complaint sought an order directing the DCI
and Director of ISOO to notify "all employees" who signed SF 189 or
Form 4193 at any time that any provisions inconsistent with Section
630 could not be enforced during fiscal year 1988 (J.A. 10), but it
once again made no mention of former employees.  Finally, although the
complaint sought to require the DCI and Director of ISOO to take
certain steps on a government-wide basis, AFSA only has standing to
seek relief on behalf of its members (International Union, United
Automobile Workers of America v. Brock, 477 U.S. 274, 281-282 (1986)),
who presumably work almost exclusively for the State Department.

   /25/ In fact, we argued in our motion to affirm (at 21, 27-28) that
if the Court does not reject appellants' contentions outright under
subsections (1), (3), (4) and (5), as a matter of either statutory
construction or constitutional law, it nevertheless should deny
appellants relief because those claims are not ripe or because
appellants have failed to establish a basis for equitable relief.
This Court has traditionally been reluctant "to decide important
questions regarding 'the scope and constitutionality of legislation in
advance of its immediate adverse effect in the context of a concrete
case.'" Kleppe v. New Mexico, 426 U.S. 529, 546 (1976) (quoting
International Longshoremen's Union, Local 37 v. Boyd, 347 U.S. 222,
224 (1954));  see also Public Affairs Assocs., Inc. v. Rickover, 369
U.S. 111, 112-113 (1962).  That principle has special force here,
because even in the context of a concrete case, the courts have been
reluctant to second-guess the factors upon which the responsible
Executive Branch official may rely in limiting access to and
dissemination of classified information.  Egan, slip op. 9-11;
Webster v. Doe, slip op. 7-8.  Judicial hesitation might also be
appropriate because Section 630 purports to be only a temporary
legislative restriction on the manner in which federal agencies may
spend appropriated funds, not permanent legislation that confers
rights directly on private parties.  Compare Cannon v. University of
Chicago, 441 U.S. 677, 690-693 (1979).

   /26/ As appellants point out (Br. 35), the nondisclosure agreements
must go beyond information that is actually marked classified in order
to protect oral communications of national security information,
unmarked notes from classified meetings, and as-yet unmarked
information that is in the process of a classification determination.
See 1987 Hearing at 63, 78, 99.  Appellants are wrong in contending
(Br. 35-36), however, that this information is not protected by
Executive Order 12,356 itself simply because it is not marked.  The
section of the Executive Order that provides for classification of
information does not condition that status on the fixing of a marking
(see Section 1.3(b)), and in fact that section does not refer to
markings at all.  That subject is addressed by Section 1.5(a), which
lists certain information that must be shown on the face of all
classified documents or be "clearly associated with other forms of
classified information in a manner appropriate to the medium
involved." As appellants acknowledge (Br. 35), no marking would be
"appropriate" or even feasible in the case of oral communications, but
this does not render the substance of those communications ineligible
for classified status under Section 1.3 of the Executive Order.

   /27/ Congress has employed comparable formulations.  See 50 U.S.C.
831, 832(b) (NSA) ("clearly consistent with the national security"),
at issue in Carlucci v. Doe, No. 87-751 (Dec. 6, 1989);  5 U.S.C. 7532
(employee may be removed if "necessary or advisable in the interests
of national security"), at issue in Carlucci v. Doe and Cole v.
Young);  50 U.S.C. 403(c) (DCI may terminate CIA employee if he deems
it "necessary or advisable in the interests of the United States"), at
issue in Webster v. Doe.

   /28/ Appellants point out (Br. 37) that an individual may be held
criminally liable for disclosure of the identity of a covert agent
only if he knows that the information identifies the agent and the
United States is taking steps to conceal the covert relationship.  50
U.S.C. 421(a) and (b).  See also 18 U.S.C. 798 (criminal penalties for
knowing and willful use or communication of classified material).
However, in these statutes, Congress has sought to reinforce, not
undermine, the protection for national security information that is
afforded by the Executive Branch pursuant to its inherent authority,
and a scienter requirement is in any event common in the criminal law.
 The availability of these criminal penalties in no way displaces or
obviates the need for the Executive Branch to retain the inherent
authority to deny further access to classified information to
employees who make unauthorized disclosures of information that may
not be intentional but nevertheless constitute serious breaches of
security.

   /29/ In fact, when employees signed the agreements that appellants
challenge in this case, they expressly acknowledged that they received
this indoctrination, that they were advised that the unauthorized
disclosure or negligent handling of classified information could cause
irreparable injury to the United States and could be used to the
advantage of a foreign nation, and that breach of the agreement could
lead to loss of a security clearance or employment (J.A. 15-16, 19,
21, 54-55, 56, 66-67).

   /30/ The district court observed in the NFFE and AFGE cases that
"(t)he reasonable person standard is one to which people are held in
all their activities, and it does not become unconstitutionally vague
simply because First Amendment rights are involved" (Mot. to Aff. App.
19a).

   /31/ Amicus AFGE, which was a plaintiff in one of the companion
cases below, expresses a similar view, stating that "it is far from
clear that Section 630 is intended to preclude the Executive from
taking disciplinary action against an employee who unknowingly but
carelessly disloses unmarked information in the process of a
classification determination" (AFL-CIO/AFGE Br. 25-26).

   /32/ Neither of the ISOO forms at issue here, SF 189 and SF 312,
addresses the question of the standard of care;  that is left to the
cited ISOO regulation.  Form 4193, which was superseded by the DCI in
March 1988, likewise did not address the standard-of-care question.

   /33/ As the Senate points out (Br. 17), in the case of an employee
who signed SF 312, the "reasonably should know" standard in the ISOO
regulation would presumably be applied in tandem with the duty to
inquire under SF 312, thereby perhaps ameliorating any problems that
might be raised under subsection (1) of Section 630 by the regulation
standing alone.

   /34/ By giving Congress free access to information at the core of
the Executive's functions, such a law also would constitute precisely
the sort of congressional "encroachment and aggrandizement that has
animated (the Court's) separation-of-powers jurisprudence and aroused
(the Court's) vigilance against the 'hydraulic pressure inherent
within each of the separate Branches to exceed the outer limits of its
power.'" Mistretta, slip op. 20-21 (quoting INS v. Chadha, 462 U.S.
919, 951 (1983)).  Especially in these circumstances, appellants err
in suggesting (Br. 20-21) that the Court should apply a balancing test
derived from Nixon v. Administrator, 433 U.S. at 441, 443, in
assessing the constitutionality of the statute.

   /35/ The groundwork for this refusal had actually been established
four years earlier, when President Washington received a request for
documents by the House committee investigating the St. Clair
expedition.  President Washington had assembled the Cabinet on that
occasion because he was concerned "that so far as it should become a
precedent, it should be rightly conducted." 1 The Writings of Thomas
Jefferson 303 (A. Lipscomb ed. 1903).  Jefferson reported that
Washington "could readily conceive there might be papers of so secret
a nature, as that they ought not to be given up" (ibid.), and the
Cabinet subsequently endorsed the view that the President "ought to
refuse those (papers), the disclosure of which would injure the
public" (id. at 304), although the President elected to furnish the
particular documents at issue (id. at 305).  This and other
withholdings of information from Congress by the President are
compiled in Office of Legal Counsel, "Memorandum for the Attorney
General Re:  History of Presidential Invocations of Executive
Privilege Vis A Vis the Congress" (Dec. 14, 1982), reprinted in H.R.
Rep. No. 968, 98th Cong., 2d Sess. 90-117 (1982) (hereinafter OLC
Memorandum).

   /36/ The OLC Memorandum cited in note 35, supra, discusses
withholdings of documents by Presidents Jackson (H.R. Rep. No. 968,
supra, at 95-97), Tyler (id. at 97-100), Polk (id. at 100-103),
Buchanan (id. at 103), Lincoln (id. at 103-104), Andrew Johnson (id.
at 104), Grant (id. at 104-105), Cleveland (id. at 105-106), Harrison
(id. at 105), McKinley (id. at 106), Theodore Roosevelt (id. at 106),
and their successors (id. at 107-117).

   /37/ Compare Art. II, Section 3 (the President "shall from time to
time give to the Congress Information of the State of the Union, and
recommend to their Consideration such Measures as he shall judge
necessary and expedient").

   /38/ For this reason, the House (Br. 14) and Senate (Br. 19) are
wrong to the extent they suggest that because Members of Congress may
have been granted access to particular classified information on
particular occasions, the language in the nondisclosure agreements
that permits disclosures to persons who are "authorized" to receive it
(J.A. 15, 19-20, 55, 67) would permit Executive Branch employees to
disclose any classified information to any Member of Congress at any
time.  The Director of ISOO has explained that although the status of
Members of Congress as elected representatives is deeed to establish
their general trustworthiness to have access to classified
information, particular disclosures to Members of Congress are limited
by the uniformly applicable need-to-know principle.  See ISOO,
Classified Information Nondisclosure Agreement (Standard Form 312):
Briefing Booklet 50 (1988).  The term "authorized" in the
nondisclosure forms embodies this critical limitation.

   /39/ Ironically, the House Permanent Select Committee on
Intelligence has recognized the importance of the need-to-know
principle and has recommended that adherence to that principle be
strengthened.  See H.R. Rep. No. 5, 100th Congr., 1st Sess. 11 (1987).

   /40/ See S. Rep. No. 522, 99th Cong., 2d Sess. 90-95 (1986)
(discussing targeting of congressional staff by hostile intelligence
services and recommending centralized security procedures within the
Senate).  A recent report of the House Intelligence Committee stated
that "(o)ther than the intelligence committees of the House and the
Senate, the Congress has no personnel, physical, document and
communications security programs which meet or exceed all applicable
executive branch security standards." H.R. Rep. No. 5, supra, at 3.
See also S. Rep. No. 522, 99th Cong., 2d Sess. 92-94 (1987).  In
response to these concerns, but ten months after Section 630 was
enacted, the Senate adopted a Security Manual in October 1988.
However, the House has not adopted a similar manual, and the Senate's
Manual does not apply to individual Members.

   Quite aside from the risk of disclosures from within the
Legislative Branch that are not authorized by Congress itself, the
President may have no practical control over whether Congress or its
Houses and committees will formally release national security
information that the President believes should remain confidential.
For example, the rules of the Senate Intelligence Committee purport to
reserve to that committee the right to decide for itself whether
classified information should be disclosed, even over the objections
of the President, if the full Senate agrees.  See S. Res. 400, Section
8, 94th Cong., 2d Sess. (1976).  See also Rule XLVIII, Rules of the
House of Representatives, Section 7.

   /41/ The Senate apparently concurs in this interpretation as well
(see Senate Br. 21 ("(t)he objective of subsection 3 is to protect
rights that are established or recognized under (5 U.S.C.) 7211")).

   /42/ Amici AFL-CIO and AFGE are wrong in contending (Br. 25) that
this case presents a clash between the assertion of an "implicit"
right of the President and Congress's enumerated powers.  Subsections
(3), (4) and (5) of Section 630 must be based on Congress's power to
investigate activities in the Executive Branch.  But that power, which
is nowhere expressed in the Constitution, is implied from Congress's
power to make laws.  See, e.g., Watkins v. United States, 354 U.S.
178, 197 (1957);  McGrain v. Daugherty, 273 U.S. 135, 178 (1972).  As
an ancillary power, it extends only so far as necessary to serve
Congress's lawmaking function.  By contrast, as this Court has
recognized, plenary control over the disclosure of national security
information is an integral component of the President's role as
Commander in Chief and sole organ of the Nation in foreign affairs.
Congress's implied power of investigation does not override these
constitutional grants of power to the President.

   Section 630 purports to be a limit on the use of appropriations,
but Congress cannot accomplish by an appropriations measure what would
be unconstitutional if enacted as a substantive law.  See United
States v. Lovett, 328 U.S. 303 (1946);  Henkin, Foreign Affairs and
the Constitution 113 (1972) ("Even when Congress is free not to
appropriate, it ought not be able to regulate Presidential action by
conditions on the appropriation of funds to carry it out, if it could
not reulate the action directly.");  id. at 115 ("Congress cannot
impose conditions which invade Presidential prerogatives to which the
spending is at most incidental").  Cf. Keyishian v. Board of Regents,
385 U.S. 589, 605-606 (1967);  Sherbert v. Verner, 374 U.S. 398, 404
(1963).

   /43/ It is clear, however, that the First Amendment right to
petition the government for redress of grievances confers no right to
divulge national security information.  See pages 38-39, supra;  cf.
Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 897 (1984);  Touhy v. Ragen, 340
U.S. 462 (1951);  Connick v. Myers, 461 U.S. 138 (1983).  The
statutory provision upon which appellants principally rely (Br. 40-41,
46), 5 U.S.C. 7211, also refers to a "right" (presumably derived from
a source outside Section 7211 itself) to petition or furnish
information to Congress, and this Court has indicated that Section
7211 was enacted to secure First Amendment rights (see Bush v. Lucas,
462 U.S. 367, 382-384 (1983)).  It therefore likewise does not confer
a right to furnish national security information to Congress.

   Appellants also cite (Br. 40) the "whistleblower" protections in
the Civil Service Reform Act of 1978, 5 U.S.C. 2302(b)(8).  But those
provisions -- which in any event are enforceable only by the Special
Counsel of the Merit Systems Protection Board (5 U.S.C.
1206(c)(1)(A)), not by a suit in the district court (J.S. App.
30a-31a) -- do not protect disclosures of classified information even
in the course of reporting waste, fraud and abuse in government.  See
5 U.S.C. 2302(b)(8)(A).  Rather, by not including the exception for
classified information in subsection 2302(b)(8)(B), which provides for
disclosures to Inspectors General or the Office of Special Counsel of
the Merit Systems Protection Board, Congress evidenced an intent to
limit disclosures of classified information to particular Executive
Branch officials with a designated need-to-know.  Although Congress
also stated in the whistleblower statute that "(t)his subsection shall
not be construed to authorize the withholding of information from the
Congress or the taking of any personnel action against an employee who
discloses information to the Congress" (5 U.S.C. 2302(b), that
provision does not confer an affirmative right to make such
disclosures.

   Finally, appellants cite (Br. 41, 46) the military whistleblower
statute, 10 U.S.C. 1034, as amended by Pub. L. No. 100-456, Section
846, 102 Stat. 2027.  However that statute applies only to members of
the armed services, and therefore would not apply to the civilian
foreign service employees who are members of appellant AFSA.
Moreover, as amended, Section 1034 is enforced through internal
Defense Department procedures.

   APPENDIX