That the Agency shall have no . . . internal-security functions." Dellums argues that Executive Order 12333 violates the statute because it authorizes the CIA to "conduct special activities approved by the President," Section 1.8(e), 46 Fed. Reg. 59946, and further defines "special activities" as "activities conducted in support of national foreign policy objectives abroad which are planned and executed so that the role of the United States Government is not apparent . . . ." Section 3.4(h), 46 Fed. Reg. 59952 (1981).
The precursor to the Order, Executive Order 12036 promulgated by President Carter on January 23, 1978, had defined "special activities" as "activities conducted abroad in support of national foreign policy objectives . . . ." Section 4-212, 43 Fed. Reg. 3692 (1978) (emphasis added). Congressman Dellums argues that with the deletion of the phrase "conducted abroad," Executive Order 12333 authorizes the CIA to conduct domestic activities constituting "internal security functions" prohibited by the National Security Act, and thus frustrates the congressional attempt to preclude the CIA from internal security functions and "disenfranchises" Congressman Dellums by impairing his legislative vote on the issue.
Admittedly, deletion of the phrase "conducted abroad" from the definition of special activities may permit the CIA to engage in some domestic activities not authorized under the prior Executive Order 12036. But whether such activities would necessarily fall under the description of "internal security functions" as used in the Act is unclear. This Court is not faced with a situation in which the Executive has taken action which, on its face, directly contradicts statutory provisions legislated by Congress. Rather, the Executive has chosen to interpret "internal security functions" in one manner, and Congressman Dellums in another. It cannot be said that the Executive interpretation is, on its face, unreasonable. The Order does not by its terms directly authorize the CIA to perform internal security functions, nor can it be said that the Order authorizes conduct that clearly falls within that rubric. Indeed, the Order by its terms expresses the intent it be in compliance with the Act. Section 1.8, 46 Fed. Reg. 59945. Under these circumstances, Congressman Dellums' remedy again lies with his fellow legislators, whom he may attempt to persuade to clarify further the scope of the restrictions imposed by § 403(d) (3) of the Act.
In sum, this is not a case, as in Kennedy v. Sampson, 167 U.S. App. D.C. 192, 511 F.2d 430 (D.C. Cir. 1974), where an Executive action has impaired the effect of a legislator's vote on a particular bill. Congressman Dellums' power to enact legislation on this issue remains unimpaired. Nor is this a case where claims of unconstitutional action would go unreviewed by the Court in the absence of congressional plaintiffs. Riegle, supra at 882. Any private citizen citing injury in fact could qualify for standing to challenge the Order if, indeed, some act taken pursuant to it served to deprive the plaintiff of constitutionally or statutorily guaranteed rights. As in Riegle, rendering a decision on the merits of Congressman Dellums' claim would pose a greater threat to the constitutional system than the exercise of judicial restraint, Riegle at 882, and the Court must decline to accept jurisdiction of Congressman Dellums' complaint.
The Court realizes that United States citizens who are involved in activities and events abroad may have serious concerns that their conduct will be misperceived and their constitutional rights infringed by federal intelligence-gathering agencies concerned with the growing tensions in world affairs and the increased sophistication of those who seek to undermine national security. The reach of the Constitution into this murky area is uncertain, and it is understandable that plaintiffs are anxious to be informed and to limit possible government action. It is not for the courts, however, to engage in abstract study and broad policymaking on these complex issues in the absence of any concrete facts or allegations of injury. This is particularly true where the matters at issue involve national security and foreign affairs, areas uniquely committed to the political branches of government. United States v. United States District Court, 407 U.S. 297, 313, 32 L. Ed. 2d 752, 92 S. Ct. 2125 (1971); Harisiades v. Shaughnessy, 342 U.S. 580, 589, 96 L. Ed. 586, 72 S. Ct. 512 (1952). In these areas, it is for Congress and the President to make basic policy decisions and for the courts to consider the constitutionality of their application only in the light of clearly defined facts.
Sound prudential considerations as well as problems of standing and jurisdiction thus dictate that the Court proceed no further in this case. The complaint is accordingly dismissed.
For the reasons set forth in the Court's Memorandum filed herewith, it is
ORDERED that defendants' motion to dismiss is granted and the complaint is dismissed.