The opinion of the court was delivered by: GESELL
This case involves the challenge by 36 named plaintiffs to the constitutionality of Executive Order 12333, signed by President Reagan on December 4, 1981. 46 Fed. Reg. 59941 (1981). The Order establishes the framework in which our governmental and military agencies are to effectuate the process of gathering foreign intelligence and counterintelligence information, and the manner in which intelligence-gathering functions will be conducted at home and abroad. Defendants are the President, the Attorney General, and the heads of various federal agencies charged with intelligence-related functions under the Order. Plaintiffs, who include a member of Congress, religious and political organizations, journalists, academics, and politically active individuals, claim that the Order usurps functions of Congress, violates the National Security Act, 50 U.S.C. § 403(d) (3), is unconstitutionally vague, authorizes intrusions upon their constitutionally protected rights, and "chills" the exercise of their rights of free expression and exercise of religion. The case is before the Court on defendants' motion to dismiss those claims for lack of subject matter jurisdiction which has been fully briefed and argued.
The complaint viewed as a whole fails to allege that any plaintiff has suffered any injury in fact under the Order. Plaintiffs claim they are injured in that, because of the nature of their activities, they are in "imminent fear" that they "may be targeted" as sources of foreign intelligence under the Order and that such targeting may subject them to unconstitutional surveillance practices or limit their ability to perform their tasks. Plaintiffs further claim that the mere prospect of being targeted "chills" their exercise of a variety of constitutionally protected rights.
It is a cornerstone of the American judicial system that the judicial power of the federal courts is limited by Article III of the Constitution to the resolution of "cases" and "controversies." At a minimum, the Constitution requires that a plaintiff invoking the Court's authority demonstrate that he has personally suffered an actual or threatened injury and that it can be traced specifically to the challenged action and redressed by a favorable decision. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 471-76, 102 S. Ct. 752, 757-61, 70 L. Ed. 2d 700, 50 U.S.L.W. 4103, 4105 (1982).
Plaintiffs in this case have failed to allege any such redressable concrete injury attributable to Executive Order 12333. They allege "fear" and "concern" that they "may be targeted" for intelligence-gathering activities, but introduce no evidence to support their claim -- beyond allegations that some of the plaintiffs had been subject to possibly illegal surveillance for past activities, in the past before the Order was promulgated. Nor do they make any allegations to support the assumption that any intelligence-gathering activities that may take place pursuant to the Order in the future will be illegal. Plaintiff has conceded at oral argument that much of the activity authorized by the Order is well within the strictures of the Constitution and laws of the United States.
Similar claims regarding Executive Order 12333 were made and rejected in this Circuit in Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982).
Plaintiffs in that case alleged that Executive Order 12333 authorized unconstitutional intelligence-gathering procedures, that plaintiffs' activities were such that they had in the past, and were in the future, "capable of attracting" the attention of intelligence-gathering agencies, and plaintiffs were consequently chilled in the exercise of their First Amendment rights. The Court found that plaintiffs had failed to allege any injury in fact and lacked standing to challenge the Order. Halkin, supra, slip op. at 47. That case is decisive here.
Plaintiffs argue that before this Court finds they lack standing for failure to allege injury in fact, they should be given the opportunity to present more detailed affidavits in order to show such injury in fact did occur. Defendants' motion to dismiss was filed on August 26, 1982. On plaintiffs' representation in its motion for extension of time, filed September 2, that additional time was needed to consult with individual plaintiffs and gather information sufficient to allege a clear injury in fact, the Court granted plaintiffs an additional month in which to respond to defendants' motion. Plaintiffs thus had ample opportunity to present particular claims of injury which would confer standing, and they have failed to do so.
One of the plaintiffs, Congressman Ronald V. Dellums, has asserted an individual claim related to his interest as a member of Congress. He contends that the President's promulgation of Executive Order 12333 without express congressional authorization is a violation of his constitutional right under Article I to legislate, "thereby diminishing the powers of each Senator and Congressman to vote and participate in the determination of matters which the Constitution entrusts to Congress." Complaint filed June 30, 1982, at para. 11. Congressman Dellums further claims that Congress has expressly prohibited much of the conduct authorized by the Order by enacting the National Security Act, 50 U.S.C. § 403(d) (3), and that accordingly its legislative authority is frustrated.
Defendants suggest the Congressman lacks standing but it is not necessary for this Court to determine that issue under traditional standing doctrine, an approach that has apparently fallen into disfavor in this Circuit so far as suits by federal legislators are concerned. Riegle v. Federal Open Market Committee, 211 U.S. App. D.C. 284, 656 F.2d 873, 880 (D.C. Cir.), cert. denied, 454 U.S. 1082, 70 L. Ed. 2d 616, 102 S. Ct. 636 (1981). The Court must decline to exercise its jurisdiction in this case under the doctrine of equitable discretion, Riegle, supra at 881-82. Under this more flexible test, "where a congressional plaintiff could obtain substantial relief from his fellow legislators through the enactment, repeal, or amendment of a statute, [the] court should exercise its equitable discretion to dismiss the legislator's action." Riegle, supra at 881.
The equitable discretion test fits this case. Nothing in Executive Order 12333 precludes Congress from enacting general legislation concerning the gathering of intelligence by federal agencies or the scope of the Executive's authority to regulate it.
A similar claim was involved in Harrington v. Bush, 180 U.S. App. D.C. 45, 553 F.2d 190 (D.C. Cir. 1977). In that case, a member of the House of Representatives claimed that alleged illegal CIA intelligence-gathering activities "constitute[d] a blatant usurpation and disregard of and challenge to the role of Congress in the constitutional scheme," Harrington, supra at 200 n.41, and that his past and future votes on CIA appropriations and his general effectiveness as a legislator had been impaired. The Court rejected those claims, noting that "the only restraints on appellant Member's legislative activities concerning the CIA are those imposed by the House of Representatives through its own rules." Harrington, supra at 214. As in the Harrington case, Congressman Dellums' remedy lies with his fellow legislators.
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 ...