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AGEE v. CIA

October 30, 1981

Philip AGEE, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, et al., Defendants, United States of America, Intervening Defendant/Counterclaimant



The opinion of the court was delivered by: GESELL

MEMORANDUM

Agee filed a complaint under the Freedom of Information Act, 5 U.S.C. § 552 (1976), on October 17, 1979, against the Central Intelligence Agency, the Federal Bureau of Investigation, *fn1" the National Security Agency, the Department of State, and the Department of Justice, requesting "access to and copies of all files and records in the possession of each of the defendant agencies that pertained to, referred to, or in any way related to himself." In the course of responding to Agee's request the defendant agencies located numerous documents in their files, some of which originated in other agencies. Documents originating in other agencies were referred to the appropriate agencies for processing and direct response to Agee and the scope of the proceeding proliferated accordingly. The Court has dealt with each set of each agency's responses as it has become ripe. Three aspects of the matter remain unresolved and are dealt with in this Memorandum. An Appendix summarizing the final action taken with respect to the documents of each agency is appended. *fn2"

 I. Department of Justice

 Agee has moved for partial summary judgment with respect to 21 documents originating in the Criminal Division and the Office of Privacy and Information Appeals of the Department of Justice. By letter dated October 8, approved and filed October 15, 1981, Agee asked to have an additional 16 documents redacted in part by the Criminal Division included in his motion. However, 8 of these 16 documents were already included in the 21 and 4 were released in their entirety. Thus, by Agee's request of October 8 only four new documents covered by the Department of Justice submissions are in dispute. The defendants have opposed Agee's motion for partial summary judgment and cross-moved for summary judgment as to these 25 documents. In view of the small number of documents involved the Court conducted an in camera inspection of each document.

 While Agee primarily attacks the Department of Justice's reliance on exemption (b)(5), some of the materials claimed to be exempt under (b)(5) are, in any event, properly claimed to be exempt under either exemption (b)(1) or (b)(3) or both. The documents for which exemption (b)(1) is claimed have been properly classified under Executive Order No. 12,065, as amended, see 50 U.S.C.A. § 401 note (1981 Supp.), to prevent unauthorized disclosure of information which reasonably could be expected to cause damage to United States national security. In other cases, material was withheld to protect Agency sources or methods, as mandated by section 403(d)(3) of Title 50. See Weissman v. CIA, 184 U.S. App. D.C. 117, 565 F.2d 692, 694 (D.C.Cir.1977). While some of the documents shed light on the legality or illegality of CIA's conduct, the (b)(1) or (b)(3) claims are not pretextual. Any possibility of illegal conduct on the part of the CIA does not defeat the validity of the exemptions claimed. (See Section II, infra).

 The remaining documents for which only exemption (b)(5) is claimed are protected since the materials are both predecisional and deliberative in character. See Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 866 (D.C.Cir.1980). They consist primarily of memoranda prepared by attorneys for the Department of Justice discussing the legal aspects of the Agency's conduct, the possible impact of the discovery rules in the event of litigation, and other matters of a deliberative nature to assist subsequent policy decisions by higher officials. The documents disclose a continuing dialogue within and between Justice and CIA on how to deal with the various legal questions raised by the Agee matter. Thus, (b)(5) is properly claimed.

 Agee's motion for partial summary judgment must be denied and the Department's cross-motion for summary judgment as to the 25 documents must be granted.

 II. Reconsideration of CIA Order

 Agee has also moved for reconsideration of the Court' s Order of July 17, 1981, 517 F. Supp. 1335, resolving the principal CIA aspects of this case. *fn3" By that Order the Court granted the CIA's motion for partial summary judgment except as to five documents which were ordered released and denied the plaintiff's motion for a more particularized justification of nondisclosure of CIA materials. Agee argues that the Court should reconsider its Order because the disclosed portions of the 25 documents covered in Section I, supra, indicate that the CIA may have acted illegally and violated Agee's civil rights during its counterintelligence investigation of his activities abroad.

 The 25 documents include detailed summaries of many features of the CIA's counterintelligence effort. They reveal more fully than the Court's earlier in camera review of CIA documents selected by the Court at random the serious concerns arising from Agee's conduct and affiliations that prompted the Agency to initiate this continuing effort to anticipate and thwart Agee's apparent threats to national security. The Court also acknowledges that the documents describe aspects of the CIA's efforts which raise unanswered and in some respects serious questions as to the legality of the CIA's conduct. These two threads are tightly interwoven so that it is not possible to isolate facts bearing solely on possible illegalities from facts that are properly claimed to be exempt under (b)(1) or (b)(3).

 The permissible scope of CIA activity is subject to oversight by Congress and by the Courts in appropriate circumstances. The law is well established, however, that if documents have been conscientiously and properly classified in accordance with the provisions of Executive Order No. 12,065, the Court's inquiry under FOIA is at an end and the documents are protected from public disclosure. See Lesar v. United States Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 483 (D.C.Cir.1980); Kanter v. Department of State, 479 F. Supp. 921, 926 (D.D.C.1979). This conclusion necessarily extends to national security information involving sources and methods which falls within the terms of exemption (b)(3). In determining whether exemption (b)(1) or (b)(3) have been properly invoked the Court must, of course, give appropriate weight to the Agency's expert determinations in the area of national security. See Halperin v. CIA, 203 U.S. App. D.C. 110, 629 F.2d 144, 147-48 (D.C.Cir.1980). The Court is satisfied that release of the 25 documents presently at issue or other CIA documents containing the same information could reveal Agency sources or methods and would seriously damage national security. While the Agency affidavits justifying classification do not deal directly with whether or not declassification at this stage would be appropriate to serve the public interest in disclosure as the Executive Order permits, it is obvious from the face of the papers that declassification in the middle of a counterintelligence effort directed at an active suspect could not satisfy this test.

 Throughout consideration of the CIA's claim that the disputed documents are properly classified, the Court has had in mind Section 1-601 of Executive Order No. 12,065, as amended, reading as follows:

 
Classification may not be used to conceal violations of law, inefficiency, or administrative error, to prevent embarrassment to a person, organization or agency, or to restrain competition.

 There is no indication that the documents were classified for the purpose of concealing illegal conduct. Thus, the CIA papers at issue are properly protected under (b)(1). Indeed, they are doubly protected because of the CIA's special statutory exemption for documents relating to sources and methods provided by (b)(3).

 The motion for reconsideration must be denied.

 III. Unopposed Submissions

 Finally, defendants have moved the Court to enter judgment supporting the agencies' submissions as to which Agee has not objected. On July 15, 1981, the Court received a letter from Agee's counsel indicating that he would not be able to meet several of the deadlines set forth in the Court's Order of May 20, 1981. By Order dated July 15, 1981, the Court cancelled all deadlines that had been previously established for Agee, but advised that if Agee failed to move as to any response of an affected agency by October 1, 1981, judgment would automatically enter supporting the agency's claims. On October 20, 1981, the Court received a letter from Agee's counsel confirming that Agee had no objections to the latest round of agency submissions with the exception of the 25 documents discussed above. In view of Agee's decision not to contest the adequacy of most of the submissions, and since they are in any event complete and adequately supported, summary judgment must be entered for defendants with respect to those submissions to which Agee has not objected.

 APPENDIX

 For the purpose of clarifying the extensive record in this case the Court provides the following outline of how each agency satisfied its obligations to Agee under the Freedom of Information Act. The agencies discussed include, in addition to the original named defendants in this action, the various agencies to ...


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