The opinion of the court was delivered by: GASCH
This is an action brought on behalf of the Executive Branch of the United States seeking to restrain the American Telephone & Telegraph Company (hereinafter AT & T) from disclosing to the Subcommittee on Oversight and Investigations of the House Committee on Interstate and Foreign Commerce, pursuant to a subpoena of that Subcommittee, certain documents, the delivery of which the President has determined "would involve unacceptable risks of disclosure of extremely sensitive foreign intelligence and counterintelligence information and would be detrimental to the national defense and foreign policy of the United States."
On June 22, 1976, the Subcommittee on Oversight and Investigations (hereinafter Subcommittee) voted to issue a subpoena to AT & T. This subpoena was issued by the Chairman of the Interstate and Foreign Commerce Committee on the same date. The subpoena seeks all documents falling within the following categories:
1. Full and complete copies of Federal Bureau of Investigation (FBI) national security request letters, in the possession or control of American Telephone and Telegraph (AT & T) and its 24 operating companies listed below, for access to phone lines handling either verbal or non-verbal communications.
2. Copies of any and all records in the possession or control of AT & T or its operating companies prior to 1969 when written FBI requests were not routinely requested by AT & T and its operating companies.
3. Copies of any and all applicable Bell System Practices (BSP's) describing company policy regarding national security "taps" or "provision of facilities" to law enforcement or intelligence agencies. This should include both current BSP's and any BSP's on the subject which have since been revised or discontinued.
The subpoena is directed to AT & T and its chief operating officer. The materials demanded were originally scheduled to be turned over to the Subcommittee on June 28, 1976. Because of ongoing negotiations, the compliance date was extended to July 23, 1976. On July 22, 1976, this suit was filed with the plaintiff seeking a temporary restraining order enjoining AT & T's planned compliance with the subpoena. The parties appeared in open Court. The Chairman of the Subcommittee, Representative Moss, filed a motion to intervene as a party-defendant, which was granted. Counsel were heard including counsel for the intervenor. A temporary restraining order was entered that afternoon by the Court in order to maintain the status quo pending hearing on the motion for preliminary injunction, which was set for July 28, 1976. The Court with the consent of counsel further ordered that the action on the merits be advanced and consolidated with the hearing on preliminary injunction. The plaintiff has moved for summary judgment. The intervenor filed a motion to dismiss or in the alternative for summary judgment.
On the basis of the entire record before the Court and for the reasons to be detailed in this Memorandum, the Court concludes that the plaintiff is entitled to summary judgment and that AT & T should be permanently enjoined from complying with the Subcommittee's subpoena. The following constitute the Court's findings of fact and conclusions of law.
The Executive Branch has in the past and continues to conduct electronic surveillance based upon national security without judicial warrant. The legality of such procedures is not presently before this Court. It is necessary, however, to understand the procedures by which such surveillance is instituted. The affidavit of Robert L. Keuch, Deputy Assistant Attorney General for the Criminal Division of the Department of Justice, details these procedures which are designed to limit the use of such surveillances to appropriate cases. These procedures are as follows: An intelligence agency requesting such electronic surveillance must submit a memorandum to the Director of the Federal Bureau of Investigation, explaining the need for the proposed surveillance. In order to obtain approval, its intent must be either 1) to prevent an actual attack or hostile act of a foreign power; 2) to obtain foreign intelligence information deemed essential to the security of the United States; or 3) to protect the national security information against foreign intelligence activities. The Director, if he approves of the request, forwards the request to the Attorney General. The Attorney General then confers with two Special Assistants to the Attorney General and determines whether the electronic surveillance should be approved.
If approved, the FBI institutes the requested surveillance by hand-delivering, in a secure fashion, to the local office of the telephone company, subsidiaries of defendant AT & T, a "national security request letter" which includes the phone number, the address, or some other indication identifying the object of the electronic surveillance. Such a request is necessary because the information intercepted is moved from the point of interception (i.e., the telephone line leading to the object structure) to the point of monitoring (which may be the local FBI office) by way of a leased telephone line, which can be installed only by AT & T and its subsidiaries. It is such "national security request letters" which are sought in paragraph 1 of the subpoena at issue in this case.
Until the late 1960's, records of requests to, or cooperation by, AT & T in national security electronic surveillances were not maintained. However, in the late 1960's, AT & T and the Department of Justice entered into negotiations resulting in a form letter, called the national security request letter, which served to reduce to writing and refine the existing policy. Thereafter, beginning in the late 1960's, each time a national security request for leased lines between the points of interception and the point of monitoring was requested from AT & T or its subsidiaries, a national security request letter was forwarded, which included (1) a request that a leased line be provided at the usual commercial rate, (2) a statement that the request was made upon a specific authorization of the Attorney General for purposes of national security, (3) the phone number, location or other information relating to the lines to be intercepted, and (4) the statement that AT & T was not to disclose the existence of the request because such disclosure could obstruct and impede the investigation.
It is the release of these post-1969 letters that the plaintiff finds most inappropriate, because of the highly sensitive information contained therein. One portion of the letter (called the "To" portion) refers to the local FBI monitoring station which, if it were to become public knowledge, would require the relocation of those stations. However, it is the "From" portion of the request letter which is of crucial importance. An analysis of what is included after the word "From" could identify the subject of the national security surveillance in one of three ways. First, the target of the surveillance may be identified by the listing of the specific telephone number to be intercepted; second, the target of the surveillance may also be identified by the listing of the specific addresses that are to be covered in the surveillance; and third, the target of the surveillance may be identified by the use of technical terms referring to AT & T lines or junction points.
The plaintiff has asserted that the disclosure of these letters or the information contained in them would have extremely serious national security and foreign policy repercussions. First, the information in these letters would disclose the identity of every foreign power, or agent of a foreign power or entity, which is, or which has been, a subject of intelligence interest to the United States. While it may be understood that, as part of its intelligence and counterintelligence activities, the United States conducts such surveillances, public confirmation of this fact would be seriously detrimental to the foreign relations of the United States and would provide those ...