UNITED STATES OF AMERICA V. OLIVER NORTH, DICK THORNBURGH, ATTORNEY
GENERAL OF THE UNITED STATES, APPLICANT

   No. A-643

   In the Supreme Court of the United States

   October Term, 1988

   Pursuant to Rules 43 and 44 of the Rules of this Court and 28
U.S.C.  1651, the Solicitor General, on behalf of the Attorney General
of the United States, applies for a stay pending appeal to the United
States Court of Appeals for the District of Columbia Circuit of the
district court's denial, on February 8, 1989, of the Attorney
General's motion for a protective order compelling adherence to the
Classified Information Procedures Act (CIPA), 18 U.S.C. App. IV.

   Application for a Stay Pending Appeal to the United States Court of
Appeals for the District of Columbia Circuit

                               STATEMENT

   1. Congress enacted CIPA in 1980 to ensure that criminal
prosecutions would not needlessly be obstructed by the threatened
exposure of classified information.  Recognizing that the Attorney
General has the final word on the disclosure of classified
information, CIPA establishes orderly procedures for making decisions
about the use of classified information.  The procedures are designed
to deny defendants the benefit of surprise, to enable the Attorney
General to make fully considered decisions whether particular
classified information should be declassified, and to permit the court
to determine not only the relevance and materiality of particular
information sought to be disclosed by the defendant but also the
consequences for the prosecution of a nondisclosure determination by
the government.

   Section 5 of CIPA requires that "a defendant (who) reasonably
expects to disclose or to cause the disclosure of classified
information in any manner in connection with any trial * * *
involvingg the criminal prosecution of such defendant" must give
written notice to that effect, including "a brief description of the
classified information." When the defendant learns of any additional
information he reasonably expects to disclose, he must give comparable
supplemental notice.  The defendant is prohibited from disclosing any
information "known or believed to be classified in connection with a
trial * * * until notice has been given * * * and until the United
States has been afforded a reasonable opportunity to seek a
determination pursuant to the procedure set forth in section 6 * * *
and until the time for the United States to appeal such determination
under section 7 has expired or any appeal under section 7 by the
United States is decided." Failure to comply with Section 5 may result
in an order precluding the defendant from disclosing classified
information not subject to notice.

   Under Section 6(a) of CIPA, the "United States" may request a
hearing for the court "to make all determinations concerning the use,
relevance, or admissibility of classified information." The court must
hold such a hearing on request and must hold the hearing in camera if
the "Attorney General" certifies that classified information may
otherwise be disclosed.  As to "each item of classified information,"
the court must make written determinations of use, relevance, and
admissibility.  If the hearing request is made prior to trial, the
court must rule prior to trial.

   After the court has ruled "authorizing the disclosure of specific
classified information," the United States may move that in lieu of
disclosure the court should accept a "statement admitting relevant
facts that the specific classified information would tend to prove" or
the substitution of a "summary of the specific classified informatin."
CIPA Section 6(c).  Such a statement or summary must be accepted if it
would "provide the defendant with substantially the same ability to
make his defense as would disclosure of the specific classified
information." Ibid.  The court must hold a hearing on a Section 6(c)
motion, and the hearing "shall be held in camera at the request of the
Attorney General." In connection with a Section 6(c) motion, the
United States may submit "an affidavit of the Attorney General
certifying that disclosure of classified information would cause
identifiable damage to the national security * * * and explaining the
basis for the classification * * *." The court must examine the
affidavit in camera and ex parte if the "United States" so requests.
Ibid.

   Under Section 6(e) of CIPA, if the court denies a Section 6(c)
motion, "the United States (may) file() with the court an affidavit of
the Attorney General objecting to disclosure of the classified
information at issue." If such a Section 6(e) affidavit is filed, then
"the court shall order that the defendant not disclose or cause the
disclosure of such information." Ibid.  Having deferred to the
Attorney General's nondisclosure decision, the court must fashion a
remedy.  Section 6(e)(2) provides that the case must be dismissed,
except that, if the interests would not be served by dismissal, the
court shall order other "appropriate" action, including dismissal of
particular counts, finding against the United States on any issue to
which the classified information relates, or striking or precluding
all or part of a witness's testimony.  To ensure further that
prosecutions are not needlessly aborted, Section 6(e) also provides
that a remedy order shall not take effect until the court has afforded
the United States an opportunity to appeal under Section 7 and
"thereafter to withdraw its objection to the disclosure of the
classified information at issue." CIPA Section 6(e).

   Section 7 provides for expedited and interlocutory appeals.  Before
or after jeopardy attaches, "(a)n interlocutory appeal by the United
States" may be taken from a district court's decision "authorizing the
disclosure of classified information, imposing sanctions for
nondisclosure of classified information, or refusing a protective
order sought by the United States to prevent the disclosure of
classified information." Under Section 7(b), an appeal must be
expedited by the court of appeals.  If the appeal is taken prior to
trial, the trial may not begin until the appeal is resolved.  If an
appeal is taken during trial, the trial must be adjourned until the
appeal is resolved.

   Section 8(c) provides for objections to the disclosure of
classified information during trial.  "During the examination of a
witness in any criminal proceeding, the United States may object to
any question or line of inquiry that may require the witness to
disclose classified information not previously found to be
admissible." If such an objection is made, "the court shall take such
suitable action to determine whether the response is admissible as
will safeguard against the compromise of any classified information."

   2. Oliver L. North and three co-defendants were indicted by a
federal grand jury on March 16, 1988.  Under Section 5 of CIPA,
defendant North was required to give pretrial notice of any classified
information that he expects to disclose in the proceeding.  Defendant
North filed several notices pursuant to Section 5, but he steadfastly
refused to explain the relevance of any particular information to his
case.  Acceding to that refusal (and declining to impose the sanction
of barring defendant North from using any such information), the
district court postponed a decision about the implementation of the
required Section 6 procedures, beginning with a hearing on the
relevance, and admissibility.

   On December 12, 1988, and on January 19, 1989, the district court
issued orders regarding the disclosure of certain broad categories of
classified information.  In those orders, the court ruled that certain
categories of information were relevant.  The court otherwise deferred
to trial the question of the admissibility of classified information.
The categories of information covered by the two orders were by no
means exhaustive.  Accordingly, much classified information remained
unprotected and was not the subject of any pretrial ruling on
admissibility.  Section 6 procedures had still not been followed.

   The Independent Counsel, recognizing that the court's orders did
not provide adequate protection against the disclosure of classified
information, on January 27 moved the district court for an order
requiring defendant North to give 24 hours' notice of any anticipated
use of classified information.  On January 30, 1989, the court
rejected that proposal.  Several days later, the Independent Counsel
filed a motion requesting an order prohibiting defendant North from
making any disclosures without a prior decision by the court and an
opportunity for Section 6(c) proposals for substitution or summaries
to be proposed and considered.  The Independent Counsel explained that
CIPA requires an opportunity for the United States to seek a Section 6
determination of use, relevance, and admissibility prior to disclosure
(and to pursue an appeal under Section 7), but that, without further
order of the court, there was a substantial danger that defendant
North would simply publicize classified information at trial, thereby
eliminating the opportunity to be heard that is guaranteed to the
United States by CIPA.  Without an appropriate procedure, the
Independent Counsel warned, there could be a serious breach of
security or the Attorney General might have to resort to a premature
and wholly unnecessary Section 6(e) affidavit precluding disclosure.
On February 6, 1989, an in camera hearing was held;  the court
expressed concern about the proposed order and did not enter it.

   On February 8, 1989, the Independent Counsel asked the court to
enter an order prohibiting defendant North from disclosing, without
prior approval, classified information falling into any of seven
defined categories.  The proposed order would also have directed the
government, in advance of each witness's testimony, to identify
narrowly, specifically, and reasonably the classified information that
is particularly at risk during the testimony of that witness.
Defendant North would then be required to seek court approval prior to
disclosing any such information.

   The district court did not enter the proposed order.  Instead, the
court ordered that defendant North, unless he obtained prior court
approval, was prohibited during his opening statement and during the
government's case from disclosing any classified information in the
seven defined categories.  The court also applied to the defendant an
earlier order prohibiting disclosure by the Independent Counsel of
information in an eighth category.  The court did not impose any
constraints on the disclosure of information outside those categories.
 Nor did the court impose any preclearance requirement with respect to
those categories during the defendant's case.  Nor, finally, did the
court establish a mechanism by which CIPA's Section 6 procedures could
be implemented at the time defendant North seeks court approval to
disclose classified information.

   3. It was only at this point that the interests of the Attorney
General and the Independent Counsel began to diverge.  On February 8,
1989, the Assistant Attorney General for the Criminal Division of the
Department of Justice, who has been designated to carry out the
Attorney General's functions under CIPA, /1/ filed a motion seeking a
protective order prohibiting defendant North from disclosing any
classified information unless he had first sought court approval and
Section 6 procedures had been completed.  The motion pointed out that
there was a substantial risk that defendant North might disclose
classified information and that the court had not made the use,
relevance, and admissibility determination as to "each item of
classified information" that CIPA requires.  The motion also observed
that the court had not established any mechanism to ensure that the
full Section 6 procedure would be followed with respect to classified
information.  Thus, under the procedures contemplated by the court the
government would not have a full and fair opportunity to determine
whether particular information could be disclosed, as guaranteed by
CIPA.  It would not have a full opportunity to request a hearing on
use, relevance, and admissibility (Section 6(a));  to prepare and
propose substitutions or summaries for information that is held
admissible (Section 6(c));  to determine, if necessary, whether to
preclude disclosure of particular information (Section 6(e));  and to
pursue appeals (Section 7).

   The district court denied the motion from the bench the day it was
filed.  The Assistant Attorney General immediately filed a notice of
appeal pursuant to Section 7 of CIPA.  The following day, February 9,
1989, he asked the district court to stay the trial (which was
scheduled to begin later that morning) under the automatic stay
provision of CIPA Section 7.  The district court denied the stay
application.  In its order denying the stay, the district court stated
that only the Independent Counsel could take an appeal under Section
7, and that the Attorney General did not have standing to proceed
under that Section.  App. A, infra.  In the court's (and the
Independent Counsel's) view, that conclusion is required by 28 U.S.C.
594(a), which states:

         Notwithstanding any other provision of law, an independent
      counsel * * * shall have, with respect to all matters in such
      independent counsel's prosecutorial jurisdiction * * *, full
      power and independent authority to exercise all investigative
      and prosecutorial functions and powers of the Department of
      Justice (and) the Attorney General * * *, except that the
      Attorney General shall exercise direction or control as to those
      matters that specifically require the Attorney General's
      personal action under section 2516 of title 18.

   The Independent Counsel declined to take an appeal from the court's
refusal to issue the protective order requested by the Assistant
Attorney General.

   The Assistant Attorney General moved for a stay from the court of
appeals the same day.  The court denied the stay "substantially for
the reasons given by the district court for its denial of the stay."
App.  B, infra.  The next day, February 10, 1989, the court denied a
motion for reconsideration.  The court noted that the district court
and the Independent Counsel took the view that the Attorney General
has the ultimate ability to protect against disclosure of classified
information by filing affidavits under CIPA Section 6(c) and (e).  In
light of that view, the court said, it was unnecessary to decide
whether the Attorney General could appeal from a denial of such an
appeal.  App. C, infra.

                               ARGUMENT

   Rules 43 and 44 of the Rules of this Court and the All Writs Act,
28 U.S.C. 1651, authorize this Court or any Justice to grant a stay of
proceedings in a district court pending an appeal to the court of
appeals.  This case satisfies the traditional factors for issuance of
a stay:  (1) proceeding with the trial is erroneous, and (2) in the
absence of a stay, irreparable injury and substantial risk to the
public interest are highly likely.  See, e.g., O'Brien v. Brown, 409
U.  S. 1, 3 (1972);  Atiyeh v. Copps, 449 U.S. 1312 (1981) (Rehnquist,
Circuit Justice);  Pasadena City Board of Education v. Spangler, 423
U.  S. 1355 (1975) (Rehnquist, Circuit Justice).

   1. Irreparable Injury and Harm To Public Interest.  In the absence
of a stay, the trial will commence on Monday, February 13, 1989.  No
order of the district court prohibits defendant North, in his opening
statement or during the government's case, from simply disclosing,
without seeking prior court approval, classified information that
falls outside the eight categories identified by the district court on
February 8, 1989.  Even as to information within those categories, no
order prohibits defendant North from disclosing classified information
during his own case.  Moreover, there are no procedures in place to
ensure that proper Section 6 procedures are followed if defendant
North seeks permission to disclose particular classified information
or if the Independent Counsel objects to an anticipated disclosure.
/2/

   Once any classified information is disclosed, there is no
after-the-fact cure:  the injury is irreparable.  The risks of
disclosure, even early in the trial, are substantial.  There are
significant areas of classified information that are outside the
district court's seven categories and that defendant North is
reasonably likely to disclose, without having to seek court approval.
/3/ And the seven categories themselves contain a significant amount
of classified information.  Not only would the disclosure of any such
information constitute irreparable injury to the government;  the
public interest, too, would be harmed, because much of the disclosed
information will not be relevant or admissible, so that the disclosure
will have been entirely unnecessary.

   Even aside from the problem of uncontrollable disclosures by
defendant North, the absence of any mechanism to ensure that Section 6
will work an irreparable injury to the government and harm to the
public interest.  CIPA establishes carefully structured procedures for
ensuring that no prosecution is obstructed because of the threat of
disclosure of classified information.  Those procedures cannot
possibly be followed if the trial goes forward as currently planned.

   Under CIPA's procedures, the Attorney General must be given ample
notice of the particular information sought to be disclosed, so that
he may decide, in consultation with the national intelligence
agencies, whether to object to its disclosure.  CIPA Section 5.  The
Attorney General then has the right to a hearing at which the court
will determine use, relevance, and admissibility, so that refusals to
disclose will not impair the prosecution where the information is
relevant or admissible.  Section 6(a).  The AAttorney General must
have the opportunity to propose and to have a hearing on admissions or
summaries as an alternative to disclosure of relevant, admissible,
classified information;  and the court must have the opportunity to
determine whether the proposed alternatives are an adequate
substitute.  Section 6(c).  The Attorney General must then have the
opportunity to consider -- in light of any determination of relevance
and admissibility and the inadequacy of alternatives, and again
consulting with the relevant intelligence agencies -- whether to file
an affidavit objecting to disclosure and to tailor any such affidavit
to the particular information he determines cannot be disclosed.
Section 6( e).  If an objection is made, the court must have a fair
opportunity to determine whether remedies less extreme than dismissal
of the prosecution are appropriate.  Ibid.  Finally, the United States
must have the opportunity to appeal adverse decisions and, if the
appeal is unsuccessful, to take one final look at the need to preclude
disclosure.  Sections 6(e), 7.

   Those procedures demand that there be adequate time for the
Attorney General and the court to make the required decisions
responsibly and with full exploration of every means of completing the
prosecution without the needless disclosure of classified information.
 The need for time is the reason that CIPA contemplates that the
necessary decisions will be made, to the maximum extent possible,
prior to trial.  See S. Rep. 823, 96th Cong., 2d Sess. 1-4 (1980);
H.R. Rep. 831, pts.  1 & 2, 96th Cong., 2d Sess. (1980).  In this
case, the district court has declined to conduct the CIPA proceedings
prior to trial, bowing to defendant North's refusal to cooperate with
the demand that he outline the relevance and admissibility of
classified information he seeks to disclose.  As a result, the CIPA
procedures must now be followed during trial, for disclosure of
classified information without following Section 6 procedures is
unlawful.  See CIPA Section 5 (disclosure forbidden "until the United
States has been afforded a reasonable opportunity to seek a
determination pursuant to the procedure set forth in section 6").

   Yet the district court has refused to adopt any mechanism that
could even attempt to afford the full opportunities for reasoned
decisionmaking, inter-agency consultation, exploration of
alternatives, and hearings demanded by CIPA.  Indeed, the court has
indicated orally that it does not intend to tolerate the repeated and
far from momentary interruptions that have been made inevitable by the
court's failure to make relevance and admissibility determinations
prior to trial.  If trial goes forward on the present terms, it is all
but certain that CIPA will be violated, that the Attorney General and
the court will not be able to fulfill their responsibilities.  The
government will be irreparably injured and the public interest
substantially impaired, especially if the prosecution is prematurely
and unnecessarily frustrated.

   The Independent Counsel, the district court, and the court of
appeals have suggested that the Attorney General can always protect
against disclosures of classified information by filing a Section 6(c)
or 6(e) affidavit.  But as matters now stand, there is no way for the
Attorney General to tailor any such affidavits to particular
information that might be needed for trial.  CIPA procedures were
plainly designed to allow more refined decisions than the affidavit
suggestion acknowledges.  See CIPA Section 6(a) (determinations of
use, relevance, and admissibility as to "each item of classified
information"), 6(c) (court may initially authorize disclosure of
"specific classified information" and government may propose
admissions or summaries of "specific classified information"), 6(e)
(court to fashion remedy based on the particular classified
information at issue).  If the Attorney General is forced to make
crude and overbroad determinations without the narrowing of issues
provided for by the Section 6 procedures (eliminating irrelevant or
inadmissible information, accepting admissions or summaries as
substitutes, considering the impact of nondisclosure on the
prosecution), those determinations are bound to err either on the side
of excessive disclosure, with potentially serious adverse consequences
for national security, or on the side of overbroad refusal to disclose
whole categories of information that are not needed for trial, with
whatever consequences may follow for the continuation of the
prosecution. Either way, there is irreparable injury to the government
and substantial harm to the public.  /4/

   2. The Merits.  It is legally incorrect for the district court to
continue the trial pending the Attorney General's appeal.  The issue
is straightforward.  Under Section 7 of CIPA, a stay of trial
proceedings is automatic if the "United States" takes an appeal from a
district court order "refusing a protective order sought by the United
States to prevent the disclosure of classified information." The
subject of the appeal to the court of appeals is unquestionably the
district court's refusal to grant a protective order to prevent
disclosure of classified information.  /5/ The only question,
therefore, is whether the "United States" took the appeal, within the
meaning of CIPA.  That question, although one of first impression,
must be answered in the affirmative.

   a. The responsibility under CIPA for protecting classified
information, and for deciding whether it may be disclosed, clearly
belongs to the Attorney General, as the agent of the President.
Neither the Independent Counsel nor the district court nor the court
of appeals has ever suggested to the contrary.  In fact, all persons
involved in this proceeding have taken it as a given that it is the
Attorney General, and not the Independent Counsel, who makes the
disclosure decisions under CIPA.

   The constitutional backdrop to CIPA makes that conclusion
inescapable.  After all, it is the President who has "authority to
classify and control access to information bearing on national
security," an authority that "exists quite apart from any explicit
congressional grant" but derives from his constitutional role "as head
of the Executive Branch and as Commander-in-Chief." Department of the
Navy v. Egan, No. 86-1552 (Feb. 23, 1988), slip op. 8.  Any effort to
grant the authority to make classified-information disclosure
decisions to a person who is not fully the agent of the President
would be, at a minimum, constitutionally suspect.  /6/ There is not
the slightest indication that Congress intended any such transfer of
authority.  See S. Rep. 823, supra;  H.R. Rep. 831, supra;  H.R. Conf.
Rep. 1436, 96th Cong., 2d Sess. (1980).  In fact, CIPA expressly
states, in Section 14, that the Attorney General's decisionmaking
responsibility under CIPA may be delegated only to the Deputy Attorney
General or an Assistant Attorney General (all presidential appointees,
removable at will) and "may not be delegated to any other official."

   That the responsibility for controlling access to classified
information under CIPA resides with the Attorney General, and not the
Independent Counsel, also follows from their respective institutional
roles.  The Attorney General has continuing responsibility for and
expertise in the control of classified information, built on
established working relationships with the various national
intelligence agencies.  His responsibilities and perspective are
defined not only by the investigations and prosecutions under his
control but also by the extensive role he has long played in the
government's national security and intelligence operations.  See,
e.g., Exec. Order Nos. 12333 (U.S. intelligence activities), 12356
(national security information), 50 U.S.C. 401 note.  The Independent
Counsel, by contrast, is limited in his function and perspective by
the circumscribed investigative and prosecutorial task he has been
authorized to perform.  He has no continuing institutional
responsibility for the potentially grave effects on national security,
intelligence, and foreign policy that disclosure of classified
information may have.  Indeed, decisions regarding the protection or
disclosure of classified information are pervaded by important policy
issues in the area at the heart of the President's authority.  Yet
this Court upheld the independent counsel statute on the express
understanding that the independent counsel "lack(s) policymaking * * *
authority." Morrison v. Olson, No. 87-1279 (June 29, 1988), slip op.
32-33.  See id. at 13 (independent counsel has no authority "to
formulate policy for the Government or the Executive Branch").

   As we have shown, and as has been conceded by the Independent
Counsel and the lower courts, it is the Attorney General's
responsibility to control access to classified information under CIPA.
 It follows, as a matter of logic and common sense, that the Attorney
General has the authority to take an appeal of an adverse decision by
the district court rejecting the Attorney General's efforts to protect
classified information.  It makes no sense to assume that Congress,
while granting the Attorney General such broad authority over the
protection of classified information in the district court, intended
to deprive the Attorney General of the right to obtain appellate
review of adverse decisions that are critical to his ability to
fulfill his responsibilities under CIPA.  Indeed, Section 7 of CIPA,
which provides for expedited appeals and automatic stays of trial
proceedings, makes explicit Congress's determination that appellate
review is an essential feature at CIPA's operation.

   As a matter of statutory language, the point is simply that the
Attorney General may represent "the United States" under Section 7.
Other provisions of CIPA undermine any suggestion that CIPA somehow
deprives the Attorney General of his authority to represent the United
States.  /7/ Thus, "the United States" may request a Section 6(a)
hearing, but the "Attorney General" may ask that the hearing be held
in camera;  "the United States" may ask the court to accept admissions
or summaries under Section 6(c), but a hearing on such a request is to
be held in camera "at the request of the Attorney General";  "the
United States" may submit an affidavit of the Attorney General under
Section 6(c), and the court must examine it in camera and ex parte if
"the United States" so requests;  "the United States" may file a
Section 6( e) "affidavit of the Attorney General objecting to
disclosure";  and, while it is the Attorney General who may object to
disclosure, "the United States" may, after an appeal, "withdraw its
objection to the disclosure of the classified information at issue"
(Section 6(e)).  Plainly, CIPA contemplates no dichotomy between the
Attorney General and "the United States."

   In fact, the Independent Counsel has acknowledged that for at least
some purposes under CIPA the Attorney General represents "the United
States." Thus, he has conceded throughout these proceedings that it is
the Attorney General who has the authority under CIPA to file Section
6(c) and Section 6(e) affidavits.  For example, in his memorandum
opposing the stay application in the court of appeals, he stated (at
6) that "the Attorney General retains his power under CIPA Section
6(c) and Section 6(e) to file affidavits." But under both Section 6(c)
and Section 6(e), it is "the United States" that may "submit" or
"file" the Attorney General's affidavit.  It cannot be that the
Attorney General may represent "the United States" for some CIPA
purposes but not for others, such as Section 7 appeals.  In fact, the
Independent Counsel has not disputed, and the court of appeals
expressly declined to dispute (App. C, infra), that the Attorney
General can take an appeal from a district court order disregarding a
Section 6(c) or Section 6(e) affidavit.  But, if the Attorney General
representing "the United States" can appeal under Section 7 a district
court order "authorizing the disclosure of classified information"
(Section 7), he can also appeal representing "the United States" under
Section 7 from an order "refusing a protective order." That is what
the Attorney General has done in this case.

   b. The independent counsel statute does not override this clear
commitment of CIPA authority to the Attorney General.  Nothing in the
independent counsel statute expressly addresses CIPA.  Nor, although
CIPA was enacted in 1980, does CIPA address the independent counsel
statute, which was first enacted in 1978 (and was reenacted in
modified form in 1982 and 1987).  As far as we have been able to
determine, moreover, nothing in the legislative committee reports
accompanying CIPA or the independent counsel statutes reflects any
express congressional judgment about how the statutes are to relate to
one another.

   Given Congress's clear, constitutionally based commitment of CIPA
authority to the Attorney General as an agent of the President, it
would be extraordinary if the independent counsel statute had to be
read to strip any of that authority from the Attorney General.  The
provision relied on by the Independent Counsel and the courts below,
28 U.S.C. 594(a), need not be so read.  That provision gives the
Independent Counsel the Attorney General's authority only with respect
to "all investigative and prosecutorial functions and powers" within
the Independent Counsel's "prosecutorial jurisdiction." But the
Attorney General's authority to control access to classified
information under CIPA -- here, the authority to ensure that there is
a full opportunity to make careful decisions about the disclosure of
classified information -- is not properly regarded as an
"investigative" or "prosecutorial" power.  This power to protect
sensitive national security information is rooted in the President's
constitutional responsibility for foreign relations and exists wholly
apart from the pendency of any criminal investigation or prosecution.

   In fact, even the Independent Counsel does not construe Section
594( a) to make him the "Attorney General" for CIPA purposes.  The
Independent Counsel has acknowledged throughout these proceedings that
the authority of the Attorney General under CIPA remains with the
Attorney General.  The court of appeals likewise refused to adopt a
reading of Section 594(a) that would transfer the Attorney General's
CIPA authority to the Independent Counsel.  See App. C, infra (noting
view that Attorney General may file Section 6(c) and (e) affidavits
and reserving possibility that Attorney General may appeal if
affidavits disregarded).  But if the Attorney General's CIPA authority
in the district court is not transferred to the Independent Counsel by
Section 594(a), neither are the Attorney General's appeal rights under
CIPA.  One is no more investigative or prosecutorial than the other.
/8/

   One subsection of Section 594(a) reflects Congress's understanding
that decisions regarding the protection of national security
information are not to be transferred to the Independent Counsel.
Thus, Section 594(a)(6) authorizes the Independent Counsel to contest
"any claim of privilege or attempt to withhold evidence on grounds of
national security." This provision on its face presupposes that it is
not the Independent Counsel who has the authority to make final
decisions to object to disclosure of national security information.
In assuming that such decisions are not to be made by the Independent
Counsel, the provision confirms that the authority to protect
classified information is not among the investigative and
prosecutorial powers transferred to the Independent Counsel by Section
594(a).

   c. That CIPA and the independent counsel statute are properly
construed to recognize the Attorney General's standing to take an
appeal from an order refusing a protective order is reinforced by the
doctrine of Perlman v. United States, 247 U.S. 7 (1918).  The Court
there held that, when a third party who has possession of privileged
documents is authorized to disclose them during judicial proceedings
without the consent of the owner of the documents, the owner has
standing to take an immediate appeal even though he is not a party to
the litigation.  The Court explained that to deny the owner standing
to take an interlocutory appeal in such circumstances would leave him
"powerless to avert the mischief of the order." Id. at 13.  As the
Court later reiterated in United States v. Ryan, 402 U.S. 530, 533
(1971), the Perlman doctrine allows appeal where denying review would
"render impossible any review whatsoever of an individual's claims."

   The Perlman doctrine applies in this case.  As a result of the
district court's refusal to issue an adequate protective order or to
establish a mechanism to ensure the availability of CIPA Section 6
procedures, defendant North is in a position to disclose highly
sensitive classified information at trial, and it appears that the
government will not be accorded its Section 6 procedural rights.
Proceeding with the trial on those terms will make it impossible for
the Attorney General to fulfill his responsibility to safeguard
classified information and to make fully considered, narrowly tailored
decisions regarding disclosure consistent with the national interest.
CIPA should be construed in accord with Perlman to recognize the
Attorney General's same right to appeal a decision denying him his
right to control access to classified information.

                              CONCLUSION

   The standing of the Attorney General to appeal under CIPA should be
recognized, and the application for a stay pending appeal should be
granted.

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General

   FEBRUARY 11, 1989

   /1/ Section 14 of CIPA states:  "The functions and duties of the
Attorney General under this Act may be exercised by the Deputy
Attorney General or by an Assistant Attorney General designated by the
Attorney General for such purpose and may not be delegated to any
other official."

   /2/ The district court has not permitted a representative of the
Attorney General to make objections at trial to anticipated
disclosures of classified information.  Apparently, only the
Independent Counsel may make such objections.

   /3/ With respect to one area, the Independent Counsel has asked the
district court to clarify whether an admission will be accepted as a
substitute for the introduction of classified information.  The court
has not ruled on the request.  That area is not, however, the only one
in which disclosure is threatened.

   /4/ This discussion demonstrates not only that denying a stay would
cause irreparable injury to the government and harm to the public but
also that the Attorney General's appeal of the district court's
refusal to issue a protective order compelling adherence to CIPA is
meritorious.

   /5/ Section 3 of CIPA expressly provides for protective orders.
Congress expressly contemplated that protective orders might include
an order "prohibiting the disclosure of (classified) information
except as authorized by the court." S. Rep. 823, 96th Cong., 2d Sess.
6 (1980).

   /6/ In Morrison v. Olson, No. 87-1279 (June 29, 1988), slip op. 31,
this Court reaffirmed that the suggestion in Myers v. United States,
272 U.S. 52, 132-134 (1926), was "undoubtedly correct" 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" (footnote omitted).  It is hard to imagine any executive
official who more plainly comes within this ruling than the official
responsible for controlling access to classified information having
national security and foreign policy implications.

   /7/ This does not mean, of course, that the Independent Counsel,
when in agreement with the Attorney General, may not also represent
the United States in CIPA proceedings.

   /8/ Section 594(a) expressly excepts from its general rule only the
Attorney General's authority under 18 U.S.C. 2516 (wiretap
authorization).  But that authority is plainly investigative and
prosecutorial;  it therefore had to be listed as an exception, for it
would otherwise have been covered by Section 594(a)'s general rule.
The Attorney General's CIPA authority, which is not investigative or
prosecutorial, is simply outside the coverage of the general rule.

   We also note that Congress may well have intended that a broader
range of actions requiring the personal action of the Attorney General
(not just wiretap authorizations) be excepted from Section 594(a)'s
general rule.  The House Report accompanying the 1987 independent
counsel statute explained Section 594(a) as follows:  "Section 594
carried forward from the current statute the authority and duties of
the independent counsel.  Essentially, these include all the
investigative and prosecutorial functions and powers of the Attorney
General with the exception of those that require, under statute, the
Attorney General's personal action (such as the decision to initiate
wiretapping)." H.R. Rep. 316, 100th Cong., 2d Sess. 37 (1987)
(emphasis added).

   APPENDIX