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MILITARY AUDIT PROJECT v. BUSH

March 5, 1976

MILITARY AUDIT PROJECT et al., Plaintiffs,
v.
George BUSH et al., Defendants



The opinion of the court was delivered by: GESELL

 GESELL, District Judge.

 This is a suit under the Freedom of Information Act, 5 U.S.C. § 552, against the Central Intelligence Agency and the Department of Defense. Plaintiffs seek to obtain certain material relating to the Glomar Explorer,

 
. . . to wit the contract, and all other documents pertaining to the financial arrangements between or among the government of the United States, any agency thereof, Hughes Tool Co., Summa Corporation and Global Marine, Inc., or any of them, in particular such documents that reflect sums paid by the government of the United States or any agency thereof to any of the other entities named above, the profits earned by any of such other entities and any provisions for disposition by the government of the United States to any of the other named entities, with respect to the vessel "Glomar Explorer." (Complaint, para. 1).

 Defendants have not yet answered, but instead filed a motion to dismiss, or, in the alternative, for summary judgment, relying on 5 U.S.C. §§ 552(b)(1), (b)(3). They have also moved pursuant to Fed.R.Civ.P. 26(c) for leave to submit material for in camera inspection by the Court and for all further papers filed in their case, including those hereafter presented in aid of the motion to dismiss, to be held under seal and not revealed to anyone pending final disposition of the litigation. Their proposed form of order is annexed. In particular, the Government wishes to submit two affidavits in camera, one classified Top Secret and the other Secret, to support the motion to dismiss. The Government has publicly filed the very vague and conclusory affidavit of Lawrence S. Eagleburger, Deputy Under Secretary for Management of the Department of State, which asserts that "the information relevant to the United States Government case has been classified pursuant to Executive Order 11652, 3 C.F.R., Executive Order 11652 (1974 edition) on the ground that public disclosure would damage the national security, including the foreign relations of the United States."

 Since the supporting material has not yet been submitted, the defendants' motion to dismiss, or, in the alternative, for summary judgment is not yet ripe for disposition, and the matter is now before the Court only on defendants' motion for in camera proceedings. The Government urges this Court to follow the approach adopted in Phillippi v. CIA, Civil Action No. 75-1265 (D.D.C. Dec. 1, 1975), appeal pending, No. 76-1004 (D.C.Cir.), in which such an in camera method was utilized. This motion is vigorously opposed by plaintiffs. The matter has been fully briefed and oral argument was had.

 When this extraordinary arrangement is viewed in terms of its implications, it is readily apparent that considerations of convenience and expediency have been allowed to obscure the true role of the judiciary under our tripartite system. It has been argued before Congress and elsewhere that the courts do not have the knowledge or facilities for performing the assigned task but, whatever the merit of this position, there is a more fundamental issue.

 Is it not alien to our entire jurisprudence that courts are to function ex parte in private without benefit of the adversary process? Will it not degrade the judiciary if it is used as a mechanism for resolving statutory rights on the basis of undisclosed representations made in chambers to judges by parties having a direct personal interest in the outcome? Surely our whole jurisprudence since the Magna Carta and the abolition of Star Chamber proceedings requires that the judiciary in both fact and appearance remain neutral, independent of Executive or legislative influence. The adversary system is a well-tested safeguard for preserving the integrity of the judicial process. It is the duty of a judge wherever possible to resolve rights of citizens upon facts and arguments that are presented in an adversary context exposed to public view with all the protections fair hearing and due process provide.

 We are dealing here with the right of a citizen to receive information from his government. This is a right declared by Congress. The citizen as well as the Government has rights to be protected. There is justifiable concern in the land that on some occasions the Executive Branch has withheld information, sometimes even for personal or malevolent reasons, which should be subjected to public scrutiny. There is equally justifiable concern that Federal Courts have undertaken responsibilities that were never intended by assuming policy and administrative functions that the Constitution contemplated should properly reside with the Executive or the Congress. It is a gross mistake to alleviate the first concern by exacerbating the second.

 It is only in the rarest and most discrete special circumstances that a judge can properly resolve a controversy, even temporarily, ex parte. The procedures contemplated under the Freedom of Information Act go beyond any precedent. The ex parte nature of the proceeding will be perpetuated through appeal for at no time will the citizen seeking data learn the reasons it is being withheld or be given a realistic chance to present evidence that contradicts the arguments of those who desire to withhold. Some efforts to import a modicum of due process into this process have been futile. Disclosure to counsel under directions he not reveal what he saw to his client intrudes upon the lawyer-client relationship. Moreover, there are counsel whose bona fides are open to criticism and many applicants petition under the Act pro se. Nor does reference to magistrates or masters for ex parte review change the fundamental defect in the process.

 There is need to re-examine this issue. The number of Freedom of Information Act cases is growing rapidly and the scope and variety of ex parte chambers work is already enormous in this jurisdiction. It should shock the conscience and offend the spirit of our jurisprudence to move the entire judicial administration of this important Act into the secrecy of chambers.

 Congress was apparently sensitive to these subtle but fundamental considerations, for it left it in a court's discretion whether it would or would not engage in this ex parte procedure in chambers, 5 U.S.C. § 552(a)(4)(B). See H.Rep. No. 93-876, 1974 U.S.Code Cong. and Adm.News, p. 6273; Comment, Judicial Review of Classified Documents: Amendments to the Freedom of Information Act, 12 Harv.J. Legis. 415, 441-43 (1975).

 The Court is aware of the holding in Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974), which contemplates a routine ex parte in camera proceeding for the resolution of Freedom of Information Act contests. This rule was modified by the Congress when it recognized that ...


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