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
Court For The District Of Columbia

   Motion To Affirm

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Constitutional and statutory provisions involved
   Statement
   Argument
   Conclusion
   Appendix A
   Appendix B

                            OPINIONS BELOW

   The opinion of the district court dated May 27, 1988 (J.S. App.
1a-36a) is reported at 668 F. Supp. 671, and the opinion of the
district court in two related cases dated July 29, 1988 (App., infra,
4a-24a) is not yet reported.

                             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 jurisdiction statement was
docketed on June 28, 1988.  The jurisdiction of this Court is invoked
under 28 U.S.C. 1252.

            CONSTITUTIONAL AND STATUTORY PROVISONS INVOLVED

   Relevant provisions of Article II of the Constitution and Section
630 of the Treasury, Postal Service and General Appropriations Act,
1988 (as enacted by Section 102(m) of the Continuing Appropriations
Act, 1988, Pub. L. No. 100-202, 101 Stat. 1329-390, 1329-432), are
reproduced at App., infra, 1a-3a.

                          QUESTION PRESENTED

   Section 630 of the Treasury, Postal Service and General
Appropriations Act for fiscal year 1988 provides that no funds
appropriated for that fiscal year may be expended for the
implementation or enforcement of any policy, form or agreement
concerning the nondisclosure 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) requires prior authorization for
an employee to furnish classified information to Congress.  The
question presented is:

   Whether the Court should affirm the district court's judgment
denying appellants' request for declaratory or injunctive relief that
would bar the enforcement of nondisclosure agreements under Section
630, when recent steps taken by the Executive Branch make clear that
appellants are not entitled to relief under certain provisions of
Section 630, and the remaining provisions of Section 630 are
unconstitutional to the extent they categorically prevent the
President from requiring prior authorization before subordinate
Executive Branch employees may disclose classified information to a
Member of Congress.  /1/

   Pursuant to Rule 16.1 of the Rules of this Court, the Solicitor
General, on behalf of Steven Garfinkel, Director of the Information
Security Oversight Office;  William H. Webster, Director of Central
Intelligence;  and George P. Shultz, Secretary of State, respectfully
moves that the judgment of the district court in this case be
affirmed.

                               STATEMENT

   1. The President has the responsibility and authority under Article
II of the Constitution to classify and control access to information
bearing on the national defense and foreign relations of the United
States and to determine whether an individual is sufficiently
trustworthy to be granted access to such information.  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;  see
pages 15-17, infra.

   As the Court observed in Egan (slip op. 9), the Executive Branch
has engaged in systematic efforts since World War I to protect
national security information;  and since World War II, these efforts
have been formalized in a series of Executive Orders.  See Exec. Order
No. 10290, 3 C.F.R. 789 (1949-1953 Comp.);  Exec. Order No. 10501, 3
C.F.R. 979 (1949-1953 Comp.);  Exec. Order No. 11652, 3 C.F.R. 678
(1971-1975 Comp.);  Exec. Order No. 12065, 3 C.F.R. 190 (1978 Comp.).
The most recent such directive, Executive Order No. 12356, was issued
by President Reagan in 1982.  47 Fed. Reg. 14874, 3 C.F.R. 166 (1982
Comp.).

   Executive Order 12356 provides for three levels of classification
-- Top Secret, Secret, and Confidential -- based upon the extent of
the harm to the national security that could be expected to result
from unauthorized disclosure (Section 1.1(a)).  The classified status
of information generally is to be marked on the face of the document
(Section 1.5).  If there is reasonable doubt about the need to
classify information, it must be safeguarded as if it were classified
pending a classification determination, which must be made within 30
days (Section 1.1(c);  see also Section 1.2(e)).  A person is eligible
for access to classified information only if he has been found by a
responsible agency official to be trustworthy and only if access "is
essential to the accomplishment of lawful and authorized Government
purposes" (Section 4.1(a)).  Each agency must establish controls to
ensure that classified information is used, reproduced, transmitted
and destroyed under conditions that will provide adequate protection
and prevent access by unauthorized persons (Section 4.1(b)), and
classified information may not be disseminated outside the Executive
Branch except under conditions that ensure that it will be given
equivalent protection (Section 4.1(c)).  Agency heads also may create
special access programs to protect "particularly sensitive"
information (Section 4.2).  Officers and employees of the Government
(and contractors, licensees, and grantees) are subject to appropriate
sanctions if they "knowingly, willfully, or negligently" disclose
classified information to unauthorized persons (Section 5.4(b)(1)).
Sanctions may include reprimand, suspension without pay, removal, and
loss or denial of access to classified information (Section 5.4(c)).

   The President directed the National Security Council to provide
overall policy direction for the information-security program
established by Executive Order 12356, but responsibility for
implementation of that program and monitoring for compliance is vested
in the Director of the Information Security Oversight Office (ISOO) in
the General Services Administration (Section 5.1).  The President
conferred on the Director of ISOO the authority, 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. 2001-2003.

   2. In addition to the foregoing measures instituted by the
President pursuant to his inherent authority under Article II of the
Constitution, Congress specifically provided when it passed the
National Security Act of 1947, ch. 343, 61 Stat. 495, that the
Director of Central Intelligence (DCI) "shall be responsible for
protecting intelligence sources and methods from unauthorized
disclosure" (50 U.S.C. 403(d)(3)).  That provision confers broad
authority on the DCI to ensure the confidentiality of this especially
sensitive information.  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).  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 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 of these agreements, which are not directly at issue here, to be
an "entirely appropriate" exercise of the DCI's authority to protect
intelligence sources and methods and sustained them against a First
Amendment challenge (444 U.S. at 509 n.3).

   In 1981, the DCI adopted Form 4193, which governs access to
Sensitive Compartmented Information (SCI) (J.S. App. 3a n.4).  /2/ SCI
is a subset of classified 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).
 /3/ Because SCI is extremely vulnerable to countermeasures and
compromise, access to such information is strictly controlled and
limited only to those who have a need to know particular information.
In addition, more stringent standards are applied in determining who
may have access to SCI, such that individuals who have been granted
access to Top Secret information may nonetheless be denied access to
SCI.  Id. at 1-4;  Webster Decl. 2-3, 5-6.  Thsese special protections
for SCI are in accordance with the authorization in Section 4.2 of
Executive Order No. 12356 for the DCI to establish special access
programs governing particularly sensitive information pertaining to
intelligence sources and methods.  Webster Decl. 2.

   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 12065 (the predecessor to the current Executive Order
12356) or other Executive order or statute" (Paragraph 1).  /4/ 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" (Paragraph 3).  The signatory
accordingly agreed never to divulge SCI to anyone who is not
authorized to receive it without the prior written authorization of
the responsible agency (Paragraph 3) and 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 (Paragraph
4).  The signatory further acknowledged that he is obligated by law
and regulation not to disclose any other classified information in an
unauthorized fashion (Paragraph 3).

   3. In 1982, in response to numerous improper disclosures of
classified information, the President established a task force to
recommend additional measures for the protection of classified
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), Defts'
Opp., Exh. 1. NSDD 84 directs each Executive Branch agency to require
any person who is to be granted access to classified information to
sign a nondisclosure agreement as a condition of access (NSDD
Paragraph 1.a.).  In addition, NSDD 84 requires the Director of ISOO
to establish a standard non-disclosure form for use throughout the
Executive Branch with respect to classified information other than SCI
(Paragraph 1.c).  Pursuant to the latter mandate, ISOO adopted
Standard Form (SF) 189 in 1983.  Defts' Opp., Exh. 2;  32 C.F.R.
2003.20.  SF 189, like Form 4193, 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," and the signatory
therefore agrees never to divulge such information unless he has
officially verified that the recipient has been properly authorized to
receive it or he has been given written authorization by the
responsible agency (Paragraph 3).  As originally adopted in 1983, SF
189 defined the term "classified information," as used in the
agreement, as "information that is either classified or classifiable
under the standards of Executive Order 12356 or under any other
Executive Order or statute" (Paragraph 1).  /5/

   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 or any other form
using the word "classifiable" to describe the information that
signatories are prohibited from disclosing.  NFFE v. United States,
Civ. No. 87-2284-OG.  The plaintiffs contended, inter alia, that use
of the term "classifiable" violates the First Amendment because it is
ambiguous and overbroad and would permit an agency to classify
information after the employee seeks to disclose it or has already
done so.  The American Federation of Government Employees filed a
similar suit on September 1, 1987, challenging the use of the term
"classifiable" in both SF 189 and Form 4193.  AFGE v. Garfinkel, Civ.
No. 87-2412-OG.

   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" in SF 189.
That regulation states that the term 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.

32 C.F.R. 2003.20(h)(1)(i) (emphasis in original), as added, 52 Fed.
Reg. 48367 (1987).  /6/

   5. a. One day after the Director of ISOO published the
clarification of the term "classifiable," the President signed into
law the 451-page, government-wide Continuing Appropriations Act for
fiscal year 1988, Pub. L. No. 100-202, 101 Stat. 1329, which included
the Treasury, Postal Service and General Appropriations Act, 1988, 101
Stat. 1329-390.  Section 630 of the latter Act is a rider, added at
the last minute, 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 indentified in five succeeding subsections.  /7/ The
first two of these subsections address the use of the term
classifiable" in SF 189 and Form 4193.  They provide that appropriated
funds may not be used to implement or enforce a policy, form or
agreement that "contains the term "classifiable" or that "concern
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" (101 Stat. 1329-432).  The latter limitations parallel
the categories of information to which SF 189 was limited in any event
by virtue of the clarification of the term "classifiable" in the
regulation published by the Director of ISOO on December 21, 1987,
quoted at page 6-7, supra.  Subsections (3) and (4) of Section 630
address provisions of nondisclosure policies, forms and agreements
that may affect disclosures to Congress or its Members.  /8/ The last
prohibition, subsection (5), provides that appropriated funds may not
be used to implement or enforce a policy, form or agreement that
"imposes any obligations or invokes any remedies inconsistent with
statutory law" (101 Stat. 1329-432).  A final proviso states that
nothing in Section 630 shall affect the enforcement of those aspects
of a nondisclosure policy, form or agreement that do not fall within
subsections (1)-(5).

   b. Appropriate 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 advice from the Attorney
General.  Garfinkel Aff. Paragraph 2 (Feb. 8, 1988).  /9/ He also
directed the agencies using SF 189 to notify affected employees that
any SF 189 executed after December 22, 1987, would be treated as
voidable at the employee's request.  Garfinkel Aff. Paragraph 3.
Similarly, on behalf of the DCI, Lt. General Edward J. Heinz, the
Director of the Intelligence Community Staff, issued instructions
stating that Form 4193 and any other SCI forms were 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.
      1000(sic)-202, Continuing Appropriations for Fiscal Year 1988,
      22 December 1987, and other applicable law.

Heinz Decl. Paragraph 4 (Feb. 9, 1988), Pltfs' Mem., Exh. 6.  /10/

   c. On March 18, 1988, the DCI replaced Form 4193 with Form 4355.
Second Heinz Decl. Paragraph 3 & Exh. A (Mar. 24, 1988).  Form 4355
does not use the word "classifiable" in describing the SCI to which
the signatory's nondisclosure obligation applies.  Instead, consistent
with subsection (1) of Section 630, Form 4355 describes SCI as
information that "involves or derives from intelligence sources or
methods and is classified /11/ or is in the process of a
classification determination under the standards of Executive Order
12356 or other Executive order or statute" (Paragraph 1).  The
signatory agrees under Form 4355 that he will never divulge antything
marked SCI (or that he knows to be SCI) to anyone not authorized to
receive it or without prior written 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) in fact is
considered by the agency concerned to be SCI (Paragraph 2).
Instructions issued by Lt. Gen. Heinz provide that agencies may permit
persons who signed a Form 4193 (with the addendum) after December 21,
1987, to sign a Form 4355 in its place.  Second Heinz Decl., Exh. B.

   6. a. On February 19, 1988 (before the DCI issued Form 4355), the
appellants herein -- the American Foreign Service Association and
seven Members of Congress -- filed the instant suit alleging that SF
189 and Form 4293 violate Section 630 of the Treasury, Postal Service
and General Appropriations Act for fiscal year 1988.  Appellants
sought an order declaring that the DCI and the Secretary of State
violated Section 630 by continuing to require employees to sign Form
4193 (even with the addendum) after December 22, 1987, and an
injunction requiring appellees Garfinkel and Webster to instruct
federal agencies (i) to notify all persons who signed an SF 189 or
Form 4193 agreement after December 22, 1987, that the agreement is
void, and (ii) to notify all employees who signed an SF 189 or Form
4193 agreement at any time in the past that the five terms specified
in Section 630 would not be enforced during fiscal year 1988.
Complaint 7-8.  On March 16 and 17, 1988, the plaintiffs in AFGE and
NFFE amended their complaints to add claims alleging violations of
Section 630 as well, and the district court subsequently consolidated
the three cases (J.S. App. 2a n.1).

   b. The district court considered the consolidated cases in two
steps.  In the decision at issue here (J.S. App. 1a-36a), which was
rendered on May 27, 1988, the court addressed the challenge presented
in all three cases based on Section 630 of the 1988 appropriations
act.  The court did not actually decide whether the actions of the
Executive Branch were consistent with Section 630;  instead, it
assumed for purposes of its decision that the defendant federal
officials had violated Section 630, noting that the DCI continued to
use Form 4193 after December 22, 1987, albeit with the addendum, until
he adopted Form 4355 (J.S. App. 22a-23a n.16).

   The district court nevertheless denied any relief under Section 630
because it held that Section 630 is an unconstitutional interference
with the President's Article II power to protect national security
information (J.S. App. 22a-27a).  /12/ The court noted that although
Congress is not precluded from "activity relating to national security
information" (id. at 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" (id. at 27a).  The court found subsections (3) through (5)
particularly objectionable (id. at 26a), because those provisions,
which govern communications with Congress and bar enforcement of
agreements that impose obligations or invoke remedies inconsistent
with statutory law, "permit the President to ensure the secrecy of
national security information only by those means authorized by
Congress" (id. at 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 territory where it is not welcome" (ibid.).  The court
therefore granted summary judgment in favor of the appellees in the
instant case, since appellants based their challenge to SF 189 and
Form 4193 only on Section 630, and it dismissed the corresponding
counts in the NFFE and AFGE complaints (J.S. App. 27a-28a, 37a-38a).
/13/

   7. In a subsequent ruling (App., infra, 4a-24a), rendered in NFFE
and AFGE on July 29, 1988 (after the notice of direct appeal to this
Court was filed in the instant case), the district court held that the
term "classifiable" as used in SF 189 and Form 4193 is not
unconstitutionally vague under the First Amendment if its scope is
clarified in accordance with the definition published in the Federal
Register by the Director of ISOO in December 1987 (App., infra,
10a-20a).  The court further held, however, that SF 189 and Form 4193
cannot be enforced with respect to "classifiable" information unless
the employees who have signed those forms are individually informed of
that clarification or the term "classifiable" is deleted from the
agreements (id. at 20a).  /14/

   8. On September 28, 1988, the Director of ISOO published
regulations in the Federal Register setting forth the manner in which
he will implement the district court's July 29, 1988, order.  53 Fed.
Reg. 38278, amending 32 C.F.R. 2003.20.  The regulations clarify
paragraph 1 of 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 state the basis on which an employee may be held liable for an
unauthorized disclosure -- namely, if he knew or reasonably should
have known that the information he disclosed 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 notify employees who have signed
that form of these changes.  Pursuant to a further order of the
district court entered on September 26, 1988, in NFFE and AFGE, the
agencies must furnish individualized notice of the clarification to
employees who have signed SF 189 and Form 4193 agreements by October
27, 1988.

   In addition, on a prospective basis, the Director of ISOO has
replaced SF 189 with SF 312, effective September 29, 1988 (32 C.F.R.
2003.20(a)).  SF 312 omits the terms "classifiable" and refers instead
only to "classified" information (which includes unmarked classified
information) and information that meets the standards for
classification and is in the process of a classification
determination.  Any person who has signed an SF 189 will be permitted
to sign an SF 312 if he wishes to do so (32 C.F.R. 2003.20(b)).  /15/

   9. Because Section 630 was enacted as a rider to an appropriations
law for fiscal year 1988, it effectively expired on September 30,
1988.  On September 22, 1988, however, the President, with serious
reservations, signed the Treasury, Postal Service and General
Appropriations Act, 1989, Pub. L. No. 100-440, 102 Stat 1721.  Section
619 of that Act contains restrictions on the expenditure of
appropriated funds for the implementation or enforcement of disclosure
policies, forms and agreements in fiscal year 1989 that are identical
to those in Section 630 of the 1988 appropriations act.  In signing
the bill, the President noted his constitutional objections to Section
619, explaining 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" (24 Weekly
Comp. Pres. Docs. 1189).  The President further observed that he has
"the constitutional responsibility to ensure the secrecy of
information whose disclosure would threaten our national security"
(ibid.).  For these reasons, the President directed that in accordance
with his sworn obligation to preserve, protect, and defend the
Constitution (see Art. II, Section 1, Cl. 8), Section 619 will be
considered to be of no force and effect unless and until this Court
reverses the ruling of the district court in the instant case holding
the identical provisions in Section 630 of the 1988 Act
unconstitutional (24 Weekly Comp. Pres. Docs. 1189).

                               ARGUMENT

   The district court correctly denied appellants' request for
declaratory and injunctive relief under Section 630 that would broadly
bar enforcement of confidentiality obligations that have been solemnly
undertaken by employees of the Executive Branch as a condition of
access to information relating to the national security of the United
States.  The steps taken by the Director of Central Intelligence and
the Director of the Information Security Oversight Office to
substitute more precise language for the term "classifiable" in
existing and future nondisclosure agreements meet the principal
concerns that led to the enactment of Section 630 and eliminate any
basis for appellants' contentions that the enforcement of existing
nondisclosure agreements must be enjoined because they are
inconsistent with subsections (1) and (2) of Section 630.
Accordingly, in the present posture of this case, there is no ocassion
for the Court to consider broad questions concerning Congress's power
to limit the types of information that may be protected by the
President in the interest of national security or to specify the
precise formulation of the nondisclosure obligations that the
President may require of Executive Branch personnel.

   The only remaining issue is appellants' contention that subsections
(3)-(5) of Section 630 justify government-wide declaratory and
injunctive relief barring enforcement of any limitations that the
President might impose (through nondisclosure agreements) on the
furnishing of classified information by Executive Branch employees to
Members of Congress.  However, the district court was clearly correct
in holding that Congress may not categorically prevent the President
from insisting that those employees who have access to highly
sensitive information must at least seek the prior approval of a
responsible official under the President's supervision before
divulging national security information to anyone, including a Member
of Congress.  Indeed, in light of the serious constitutional questions
raised, it is far from clear that Section 630 should be construed to
have that effect.  But if the Court does not reject appellants'
position outright, on either constitutional or statutory grounds, it
should nevertheless deny appellants' request for sweeping declaratory
or injunctive relief in the highly abstract context of this case.
This case does not involve any instance in which an Executive Branch
employee actually sought but was denied authorization to make a
particular disclosure to a Member of Congress, or was disciplined for
making such a disclosure without seeking or obtaining prior
authorization.  For this reason alone, a court may properly deny
equitable relief.  The judgment of the district court denying such
relief therefore should be affirmed.

   1. a. The Presdient has the "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" (Department of the Navy v. Egan, slip op. 8).  This
authority "exists quite apart from any explicit congressional grant"
(ibid.);  it derives instead from the President's constitutionally
assigned roles as the head of the Executive Branch (and therefore the
repository of the "executive Power" (Art. II, Section 1)), as the
"Commander in Chief of the Army and Navy of the United States" (Art.
II. Section 2), /16/ and as the "sole organ of the nation in its
external relations" (United States v. Curtiss-Wright Export Corp., 299
U.S. 304, 319 (1936), quoting 6 Annals of Cong. 613 (1800) (remarks of
John Marshall)).  /17/ In fact, the Court has repeatedly recognized
that there is a "compelling interest" in withhholding 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).  See also
Webster v. Doe, No. 86-1294 (June 15, 1988), slip op. 7-8.

   The President's power to protect classified information and his
status as the head of the Executive Branch and Commander-in-Chief
necessarily confer on him the right to insist that those who serve as
his agents /18/ will exercise the utmost care in handling classified
information and will seek and obtain the approval of responsible
officials before disclosing it to others who have not already been
specifically granted access to it.  As Justice Stewart observed in his
concurring opinion in New York Times Co. v. United States, 403 U.S.
713, 728-730 (1971):

         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 confidentiality necessary to
      carry out its responsibility in the fields of international
      relations and national defense.

See also Cole v. Young, 351 U.S. 536, 546 (1956).  The Executive
Orders issued by the President since World War II (see page 2, supra)
have implemented the President's inherent constitutional authority to
protect and control access to classified information, and they have
codified the standards to which his subordinates are expected to
adhere.  See Developments in the Law -- The National Security Interest
and Civil Liberties, 85 Harv. L. Rev. 1130, 1192-1198 (1972).

   b. AFter a thorough study within the Executive Branch, the
President concluded in 1983 that nondisclosure agreements such as
those at issue here serve essential functions in protecting
information relating to the national security.  Such agreements
clearly define the personal obligations of the officers and employees
who will be granted access to national security information, and
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. 5-6, 515;  Webster v. Doe, slip op.
7-8;  Webster Decl. Paragraph 8.  For these reasons, the President
required in NSDD 84 that all employees who have access to SCI and
other classified information must 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 are also 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 12356 even in the absence of a written
agreement.  Appellants do not contend otherwise.

   2. a. Although NSDD 84 caused some concerns in certain other
respects, the final implementation of the government-wide
nondisclosure form (SF 189) in 1983 did not generate significant
public opposition.  See 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.
62-63, 76-77 (1987) (hereinafter 1987 Hearing).  /19/ In 1987,
however, 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 has been disclosed, in order
to punish the employee who disclosed it.  It was those concerns that
led to the filing of the NFFE and AFGE 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.  See note 20,
infra;  see generally 1987 Hearing 1-3, 5, 8-17, 22, 42-44, 53-56, 59,
63, 76-79, 84, 94-98, 103-110, 112, 116, 122, 133, 148, 151-154.  The
clarification of the term "classifiable" by the Director of ISOO in
his Federal Register notice dated December 21, 1987, was intended to
alleviate those concerns.

   More recently, the DCI and Director of ISOO have gone even further,
completely eliminating the word "classifiable" from the existing SF
189 and Form 4193 and the new SF 312 and Form 4355.  In its place, the
DCI and Director of ISOO have substituted a more precise description
of the three categories of information to which the nondisclosure
obligation applies:  (i) information that is marked classified, (ii)
information that is unmarked but classified (including oral
communications), and (iii) information that is in the process of a
classification determination.  See pages 9 and 13, supra.  These
clarifications, of which all employees who signed SF 189 or Form 4193
will be notified, ensure that the agreements 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.  Because the
word "classifiable" has been completely eliminated fromt the forms,
there no longer is any live controversy in this case under subsection
(2) of Section 630, which purports to render that term unenforceable.
And because the three categories of information specified by the DCI
and the Director of ISOO are the same as those specified in subsection
(1) of Section 630 as proper subjects of nondisclosure agreements, the
recent clarifications by the DCI and Director of ISOO also make clear
that appellants are not entitled to any relief on their claim that the
existing SF 189 and Form 4193 agreements cover information beyond that
identified in subsection (1).  The DCI and Director of ISOO therefore
have fully met the principal concerns that led to the enactment of
Section 630.  /20/

   In light of these steps taken by the responsible Executive Branch
officials, which have the effect of bringing nondisclosure forms into
harmony with the first two subsections of Section 630, there is no
occasion in this case for the Court to address broad questions
concerning the power of Congress to circumcribe the types of
information relating to the national security that the President may
constitutionally require his subordinates to keep confidential.  /21/
Nor is there any occasion for the Court to consider the power of
Congress to prescribe the details or modify the enforceability of
particular nondisclosure agreements.

   b. Appellants note in passing (J.S. 12-13) that subsection (1) of
Section 630 permits the use of appropriated funds to implement or
enforce a policy, form or agreement only if it concerns information
that is specifically marked as classified or that is unmarked but is
"known" by the employee to be classified or in the process of a
classification determination.  It is unclear whether appellants'
references to the word "known" are intended to constitute a challenge
to the district court's judgment insofar as it would permit the
President to insist that employees not disclose sensitive information
that they do not actually know but should know is classified or in the
process of a classification determination.  Any such challenge,
however, would be without merit for several reasons.

   First, appellants' objection, to the extent they raise it, should
not be considered in the context of this case, which presents a
challenge to the content of the forms themselves.  Forms SF 189 and SF
312 do not address the question of the standard of care required of an
employee in handling information protected by the Executive Order.
The standard of care is instead discussed in regulations issued by the
Director of ISOO.  Those regulations provide 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 classification determination.
32 C.F.R. 2003.20(h)(3), as added, 53 Fed. Reg. 38279 (Sept. 29,
1988);  see also 52 Fed. Reg. 48367 (1987).  Form 4355 takes a
slightly different approach:  it states that an employee may not
disclose information that he knows to be classified or in the process
of a classification determination, but it imposes on the employee a
duty to ascertain the status of any information that he has reason to
believe might be SCI or related to or derived from SCI (Paragraph 3).
Finally, Form 4193 simply states that negligent handling of SCI could
cause irreparable injury to the United States;  it does not spell out
in detail the circumstances in which measures might be taken against a
person who discloses information.  Thus, if appellants actually intend
to argue that subsection (1) of Section 630 absolves an employee of
any legal obligation unless he actually knows that information is
classified or meets the standards for classification and is in the
process of a classification determination, that argument should be
directed not to the forms themselves, but to any measures that might
be taken in the future against an employee who makes an unauthorized
disclosure.  Issues concerning such measures are not ripe for
resolution in the abstract posture of this case.  See pages 27-28,
infra.

   In any event, appellants are surely wrong if they do intend to
argue that Congress may constitutionally bar the President from
disciplining an Executive Branch employee -- or even denying him
further access to classified information -- if the employee makes an
unauthorized disclosure of national security information that is
"only" negligent or reckless.  As we have explained above (see pages
15-17, 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.  "As to
these areas of Art. II duties the courts have traditionally shown the
utmost deference to Presidential responsibilities" (Egan,j slip op.
11, quoting United States v. Nixon, 418 U.S. 683, 710 (1974)).  The
courts therefore cannot lightly disable the President from taking
measures that he concludes are necessary to protect such information
-- including measures designed to prevent negligent or reckless as
well as knowing disclosures.  The Constitution expressly imposes a
duty on the President to "take Care" that the laws be faithfully
executed (Art. II, Section 3).  In order to fulfill that obligation,
the President must have the ability to impose a comparable duty of
care on the subordinate Executive Branch employees who serve as his
agents.  Even where the President's power to remove Executive Branch
officers 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 28, 1988), slip op. 33-34.  The
careless handling of national security information by an employee
holding a position of the highest degree of trust would unquestionably
be "cause" for some disciplinary action, and such conduct would also
be an appropriate basis for denying the employee further access to
national security information.  See Webster v. Doe, slip op. 7-8;
Egan, slip op. 8-11.  The court below therefore correctly declined to
grant declaratory or injunctive relief that would broadly and
peremptorily frustrate the President's ability to take measures that
will ensure that Executive Branch employees are punctilious in
protecting the confidentiality of classified information.

   3. All that remains, then, is appellants' contention (J.S. 13-14,
18-19) that Section 630 justifies the award of broad declaratory and
injunctive relief barring enforcement of the nondisclosure-agreement
forms insofar as they prohibit Executive Branch employees from
furnishing national security information to Members of Congress
without seeking prior approval of the Executive Branch officials who
are ultimately responsible for such information.  Appellants
principally rely on subsection (3) of Section 630, which bars the
expenditure of appropriated funds to implement or enforce any
nondisclosure policy, form or agreement that "directly or indirectly
obstructs, by requirement of prior written authorization, limitation
of authorized disclosure, 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." /22/ For a
number of reasons, this provision does not furnish a basis for the
relief appellants seek.

   a. First, Congress plainly does not have the constitutional
authority to adopt a categorical rule that would absolutely bar the
President from insisting that subordinate officers and employees in
the Executive Branch must seek prior authorization before transmitting
classified information to anyone, including a Member of Congress, who
has not already been officially authorized to receive it.  Such a rule
would be nothing less than a frontal assault on the President's
constitutional authority to exercise control over national security
information in the Executive Branch and over communications with the
coordinate Branches regarding such information.

   Under the Constitution, the decision whether to disclose national
security information to a person who has not already been authorized
to receive it does not rest with each individual employee or former
employee of the CIA or other government agency, acting alone.  Such
decisions are the responsibility of the President or by the Executive
Branch officials who have been formally charged by the President with
acting as his principal agents in the areas of national defense and
foreign relations, with protecting sensitive information acquired in
the course of that activity, and with supervising the activities of
the lower-level employees who have been granted access to the
information.  Only in this way can the President and his principal
advisers be responsible -- and thereby be held accountable -- for
decisions concerning the disclosure of classified information, as well
as all other decisions made in the performance of these functions that
Article II assigns to the President.

   As this Court explained in Curtiss-Wright, 299 U.S. at 320:

         (The President), not Congress, has the better opportunity of
      knowing the conditions which prevail in foreign countries, and
      especially is this true in time 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 highly necessary, and the
      premature disclosure of it productive of harmful results.
      Indeed, so clearly is this true that the first President refused
      to accede to a request to lay before the House of
      Representatives 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.

This constitutionally based privilege for national security
information is well recognized in moder cases (see United States v.
Nixon, 418 U.S. 683, 710-711 (1974);  United States v. Reynolds, 345
U.S. 1, 10 (1953)), and, in accordance with the precedent established
by President Washington, applies in full measure to the President's
relations with Congress.  United States v. AT&T, 567 F.2d 121, 129
(D.C. Cir. 1977).

   Because the privilege derives from the President's constitutional
authority, the determination whether to invoke it and how to furnish
information if it is not invoked must ultimately reside with the
President or the head of the department or agency under the
President's direct supervision, not with a low-level employee acting
entirely on his own.  In Touhy v. Ragen, supra, the Court sustained
regulations issued by the Attorney General that barred an individual
employee of the Department of Justice, without prior authorization,
from furnishing official information of the Department in response to
a judicial subpoena.  The Court explained (340 U.S. at 468):

         When one considers the variety of information contained in
      the files of any government department and the possibilities of
      harm from unrestricted disclosure in court, the usefulness,
      indeed the necessity, of centralizing determination as to
      whether subpoenas duces tecum will be willingly obeyed or
      challenged is obvious.

A fortiori, these same considerations require a centralized
determination of whether sensitive information affecting the national
security will be disclosed to persons who have not already been
specifically authorized to receive it.  See Reynolds, 345 U.S. at 7-8
(state secret or military privilege cannot be waived by private party
and must be invoked by head of agency).  These considerations are not
rendered inapplicable merely because the disclosure would be made to
Congress, rather than the courts.  Congress could not, for example,
have constitutionally circumvented President Washington's decision to
withhold documents containing his instructions to the negotiators of
the Jay Treaty by enacting a law that purported to confer a "right" on
lower-ranking Executive Branch employees (perhaps the negotiators
themselves) to furnish the information to Congress without prior
authorization by the President, and purported to bar the President
from taking any measures against an employee who exercised that
"right."

   For the foregoing reasons, the Court should reject appellants'
reliance on Section 630 in support of their facial challenge to the
nondisclosure forms insofar as those forms require prior authorization
before an Executive Branch employee may divulge national security
information to a Member of Congress.

   b. Second, especially in view of the grave constitutional questions
that are raised by appellants' argument, it is far from clear that
subsection (3) should be read to confer a "right" on an Executive
Branch employee to divulge national security information to a Member
of Congress at will, without even attempting to invoke established
channels of official communication.  Subsection (3) instead can be
read simply to take as a given (and to afford protection to) whatever
"right" to petition or supply information to Congress that an
individual might derive from some independent legal source, such as
the First Amendment.  If subsection (3) is read in this way, it is
necessary to look outside of that provision to determine whether an
Executive Branch employee has such a right.

   Surely the First Amendment does not confer an unfettered right on
an employee of the Executive Branch to disclose whatever national
security information he pleases outside authorized channels, whether
to a member of the public or to a Member of Congress.  Sure-Tan, Inc.
v. NLRB, 467 U.S. 883, 897 (1984);  Touhy v. Ragen, 340 U.S. 462
(1951);  cf. Connick v. Myers, 461 U.S. 138 (1983).  Specifically, the
executive departments and agencies have inspectors general or other
officials to whom federal employees may communicate information
concerning activities that they believe to be unlawful.  See also
Exec. Order No. 12334, 3 C.F.R. 216 (1981 Comp.) (establishing the
President's Intelligence Oversight Board).  The departments and
agencies also have officials who are authorized to consider an
employee's request to declassify information.  Those mechanisms
furnish employees with procedures for the reporting of improper
activities and petitioning their government.  Moreover, if an employee
seeks official approval to communicate information to Congress, there
is no reason to believe that such approval will necessarily be denied.
 Indded, the provision for prior approval serves important functions
by affording the agency itself an opportunity to correct the problem
the employee has identified (cf. Weinberger v. Salfi, 422 U.S. 749,
765-766 (1975)) and to assure that any communication to Congress is
channeled in a manner that minimizes the security risk.  Compare 50
U.S.C. 501;  cf. S. Rep. 99-522, 99th Cong., 2d Sess. 91, 94 (1986).
There accordingly is no basis for concluding that a requirement that
an employee seek prior approval before communicating classified
information to anyone, including a Member of Congress, violates any
First Amendment "right" of an Executive Branch employee.  Such a
requirement therefore does not violate subsection (3) of Section 630,
if construed in the manner suggested herein.

   c. Finally, even if subsection (3) of Section 630 is construed to
confer a statutory right on all Executive Branch employees to
communicate classified information directly to Members of Congress
without prior authorization, the Court could deny appellants relief on
equitable grounds without holding subsection (3) unconstitutional.
Appellants assert an absolute statutory right that would intrude
deeply into the constitutional authority of the President, discussed
above (see pages 15-17, supra), to supervise his agents in the
Executive Branch and their handling of national security information.
At the very least, that argument raises profound separation-of-power
concerns.  Yet appellants advance it in this case in an exceedingly
abstract and speculative context, since the Court does not have before
it any concrete instance in which an employee has sought but been
denied authorization to disclose information to a Member of Congress
or has been disciplined or denied further access to classified
information because he made such a disclosure without seeking or
obtaining prior approval.

   The Court has repeatedly made clear that the award of injunctive or
declaratory relief is not a matter of right, but rather is an
equitable remedy committed to the sound discretion of the district
court, in light of the public interests involved.  See Webster v. Doe,
slip op. 11;  id. at 8 (Scalia, J., dissenting);  Hewitt v. Helms, No.
85-1630 (June 19, 1987), slip op. 6-7;  Eccles v. Peoples Bank, 333
U.S. 426, 431 (1948);  Hecht Co. v. Bowles, 321 U.S. 321, 329-330
(1944).  This case presents a compelling occasion for the courts to
deny equitable relief, in accordance with the Court's traditional
reluctance "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 Longshoremen v. Boyd, 347 U.S. 222, 224
(1954));  see also Public Affairs Press v. Rickover, 369 U.S. 111,
112-113 (1962).  That is especially so in view of the fact that the
statutory provision upon which appellants rely is not permanent
legislation that confers rights directly on private parties, but
rather is written as a temporary restriction on the manner in which
federal agencies may spend appropriated funds.  Compare Cannon v.
University of Chicago, 441 U.S. 677, 690-693 (1979).  Accordingly if
the Court does not reject appellants' claim outright, as a matter of
either constitutional law or statutory construction, it nevertheless
should, on equitable grounds, affirm the district court's judgment
denying appellants' claim for sweeping declaratory and injunctive
relief.

                              CONCLUSION

   The judgment of the district court should be affirmed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   JOHN R. BOLTON

      Assistant Attorney General

   THOMAS MERRILL

      Deputy Solicitor General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   BARBARA L. HERWIG

   FREDDI LIPSTEIN

      Attorneys

   OCTOBER 1988

   /1/ A second question presented on page i of the Jurisdictional
Statement is whether the appellants who are individual Members of
Congress have standing to seek declaratory or injunctive relief
barring implementation or enforcement of nondisclosure forms by
Executive Branch agencies.  The district court held that they do not
(J.S. App. 13a-14a).  Appellants do not address the congressional
standing question in the body of the Jurisdictional Statement, and we
do not believe that the Court must reach it in order to affirm the
district court's judgment.  See note 22, infra.

   /2/ Form 4193 is reproduced as Exhibit 5 to Defendants' Memorandum
of Points and Authorities in Opposition to Motion for Preliminary
Injunction (hereinafter "Defts' Opp.").

   /3/ Relevant excerpts from the DCI Security Committee's report are
contained in Exhibit A to the Declaration of DCI William H. Webster
(hereinafter "Webster Decl."), Defts' Opp., Exh. 4.

   /4/ Form 4193 has recently been clarified by substituting for the
term "classifiable information" a description of the particular types
of information to which that term was intended to refer.  See page 13,
infra.

   /5/ SF 189, like Form 4193, has recently been clarified by
substituting more precise language for the term "classifiable." See
page 13, infra.

   /6/ The same regualation further explained (emphasis in original):

         "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 * * *.

ISOO had previously sought to clarify the meaning of "classifiable"
information in notices published on August 3 and 11, 1987, before the
NFFE and AFGE suits were filed.  52 Fed. Reg. 28802, 29793 (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 authorities of the DCI.

   /8/ Subsections (3) and (4) apply to a policy, form or agreement
that "directly or indirectly obstructs, by requirement of prior
written authorization, limitation of authorized disclosure, 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," or that "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" (101 Stat.
1329-432).

   /9/ The Garfinkel affidavit was attached as Exhibit 7 to the
Memorandum in Support of Plaintiffs' Motion For Preliminary Injunction
(hereinafter "Pltfs' Mem.").

   /10/ This addendum also was added to the Defense Department's
essentially equivalent SCI form, DD 1847-1.

   /11/ The term "classified" in Form 4355 refers to both marked and
unmarked classified information.

   /12/ On a threshold issue of justiciability, the court first held
that those appellants who are Members of Congress lack standing to
challenge appellees' actions under Section 630 because they can seek
relief through the legislative process (J.S. App. 13a-14a).  The court
found, however, that appellant AFSA and the unions in NFFE and AFGE do
have standing to challenge the form agreements under Section 630,
because they alleged that some of their individual members have been
chilled in the exercise of their First Amendment rights as a result of
the continued implementation and threatened enforcement of the
agreements (J.S. App. 14a-18a).  The court further found that two of
the three individual plaintiffs in AFGE who signed the forms in
question prior to December 22, 1987, have standing to raise the
Section 630 claim (id. at 18a-19a).  Finally, the court held that the
unions and individual plaintiffs in NFFE and AFGE have standing to
challenge the constitutionality of the nondisclosure agreements under
the First Amendment (id. at 20a-22a).

   /13/ The district court also rejected several additional claims
advanced only by the plaintiffs in NFFE and AFGE.  First, the district
court held that the nondisclosure agreements do not violate the
whistleblower provision of the Civil Service Reform Act, because that
provision excepts from its coverage any disclosure by an employee 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
(see 5 U.S.C. 1206(c)(1)(A)) rather than a private right of action
(J.S. App. 30a-31a).  Second, the court rejected as frivolous claims
that the nondisclosure agreements conflict with an uncodified code of
ethics, Act of July 3, 1980, 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 under the Administrative
Procedure Act (5 U.S.C. 706(2)) the contention that Form 4193 violates
NSDD 84 (J.S. App. 32a).  Fourth, the court ruled that differences
between SF 189 and SF 189-A (a form used for employees of government
contractors) are rational and therefore do not impermissibly
discriminate against federal employees (J.S. App. 28a-30a).

   /14/ The court also rejected the contention by the NFFE and AFGE
plaintiffs that the regulation published by 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 the one to which
people are held in all of their activities, and it does not become
unconstitutionally vague simply because First Amendment rights are
involved" (App., infra, 19a).  Similarly, the court rejected the claim
by the AFGE plaintiffs that the agreements violate 5 U.S.C. 7211 --
which provides that the right of employees to petition Congress or a
Member of Congress, or to furnish information to a House, committee or
Member of congress may not be interfered with or denied -- because the
plaintiffs failed to allege that they have disclosed or intend to
disclose some classified or classifiable information to Congress and
have for that reason been threatened with enforcement of the
nondisclosure agreements (App., infra, 21a-22a).

   /15/ As explained above (see page 9, supra), Form 4193 was
previously replaced on a prospective basis by Form 4355, which also
omits the word "classifiable."

   /16/ See also United States v. United States District Court, 407
U.S. 297, 310 (1972) (The President has "the fundamental duty, under
Art. I, Section 1, of the Constitution, to "preserve, protect and
defend the Constitution." Implicit in that duty is the power to
protect our Government against those who would subvert or overthrow it
by unlawful means.").

   /17/ See also United States v. Pink, 315 U.S. 203, 222-223, 228-230
(1942);  Goldwater v. Carter, 444 U.S. 996, 1002-1006 (1979)
(Rehnquist, J., concurring in the judgment).

   /18/ In the case of officers and employees of the Department of
Defense, the Department of State, the CIA, and other entities who
assist the President in the area of national defense and foreign
relations, "their acts are his acts'." Humphrey's Executor v. United
States, 295 U.S. 602, 631 (1935) (quoting Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 166 (1803)).

   /19/ Unlike Forms 4193 and 4355 and the agreements at issue in
Snepp, SF 189 and SF 312 do not contain a prepublication review
requirement.

   /20/ That these were Congress's principal concerns is evident from
the fact that Senator Grassley, a leading congressional critic of the
word "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 (see 1987 Hearing 10-12, 101) and,
as noted in the text, subsection (1) of Section 630 manifests
agreement with that definition.  See also Affidavit of Senator Charles
E. Grassley at 2-4 (Nov. 18, 1987), Pltfs' Mem., Exh. 11.

   /21/ Contrary to appellants' contention (J.S. 11), the district
court did not "essentially preclude() Congress from placing any
restrictions on the Executive Branch's power to limit the disclosure
of national security information, even if such information has not
been classified under the President's own classification rules." The
district court stated that even the government's position "does not
preclude congressional activity relating to national security
information" (J.S. App. 23a).  Moreover, by the time of the district
court's decision, the DCI and Director of ISOO had clarified the
nondisclosure-agreement forms to make clear that they apply only to
information that is protected by the Executive Order.  See pages 6-7,
9, supra.

   /22/ Subsections (4) and (5) do not support appellants' argument in
this respect.  Subsection (4) provides that appropriated funds may not
be spent for the implementation of any policy, form or 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 the Congress." As an initial matter, no claim under subsection (4)
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 as a whole (see J.S. App.
13a-14a).  Moreover, as the district court recognized (J.S. App. 26a),
the requirement that an employee obtain prior approval before he
discloses information to anyone, including a Member of 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).  Therefore, even if appellants had standing to raise this
claim, they would not be entitled to relief under subsection (4).

   Subsection (5) of Section 630 provides that approriated funds may
not be used for any policy, form or agreement that "imposes any
obligations or invokes any remedies inconsistent with statutory law."
The statutory law upon which appellants rely (J.S. 14, 19) is the
whistleblower provision of the Civil Service Reform Act which --
although it does not protect an employee who discloses classified
information (5 U.S.C. 2302(b)(8)(A)) -- does provide that it "shall
not be construed to authorize * * * the taking of any personnel action
against an employee who discloses information to the Congress" (5
U.S.C. 2302(b) (final sentence)).  The quoted language, however, does
not affirmatively confer a right on an employee to disclose classified
information to Congress or afford protection to an employee who does
so, and indeed the whistleblower provision itself (5 U.S.C.
2302(b)(8)(A) and (B)) does not even expressly refer to disclosures to
Congress.  Because the requirement that an Executive Branch employee
receive prior authorization before divulging national security
information to a Member of Congress therefore does not conflict with
the whistleblower statute, it does not conflict with subsection (5) of
Section 630.  For this reason, the district court properly declined to
enter declaratory or injunctive relief based on that subsection.

   Appendix