The opinion of the court was delivered by: JACKSON
Three matters are now before this Court, on motions assignment, relating to discovery sought in the District of Columbia of non-parties to an action for defamation now pending in the U.S. District Court for the Southern District of New York.
The Central Intelligence Agency ("CIA") has moved for a Rule 26(c) protective order against its production, pursuant to Gen. Westmoreland's subpoena, of documents generated by the CIA's Office of the Inspector General and the CIA Review Board (the "Report") in the course of an investigation of alleged intelligence failures in Vietnam in the 1960's. The CIA also asks for a similar order with respect to a "draft history" of Richard M. Helms' tenure as its Director from June, 1966, through February, 1973, subpoenaed by CBS. The final motion, filed by CBS, seeks an order to show cause why Richard M. Helms should not be held in civil contempt for failing to submit to the video-taping of his pretrial deposition upon oral examination by CBS.
The Inspector General's Report
The CIA contends the documents are undiscoverable, because they are "privileged," see Fed.R.Civ.P. 26(b)(1), invoking the "executive privilege" which it interprets as being inclusive of several subordinate governmental privileges, among them the "deliberative process privilege." See Black v. Sheraton Corp. of America, 184 U.S. App. D.C. 46, 564 F.2d 531, 541-42 (D.C.Cir.1977). The Director also asserts his mandate under the National Security Act to protect information which would reveal or disclose intelligence sources and methods, 50 U.S.C. § 403(d)(3), or the organization, functions, names and titles of CIA employees, 50 U.S.C. § 403g, and he reserves the right, should his reliance upon lesser grounds fail, to claim a "state secrets privilege" for some of the documents which he believes must properly be treated as such.
The CIA's primary concern is with the protection of the integrity of its Inspector General's investigatory process. It insists that the privilege is necessary to assure that the Inspector General receives accurate and complete responses to his inquiries, and that the Director be given the Inspector General's candid, even critical, conclusions drawn from them, to enable him to fulfill his own important national security responsibilities.
The CIA supports its application for a protective order with the affidavit of its Director, William J. Casey, who avers that his statements are made on personal knowledge, derived from information obtained by him in the course of his exercise of his official responsibilities. As to Inspector General's reports generally, he says, the staff of the Inspector General "is allowed access to any information within the CIA. . . ." Casey Aff. at 3. (emphasis supplied). Since the relevant provisions of the National Security Act of 1947, 50 U.S.C. §§ 403 et seq., expressly provide that the CIA shall "have no police, subpoena, law enforcement powers, or internal security functions," 50 U.S.C. § 403(d)(3), the Inspector General may obtain only unsworn voluntary statements from those of whom it makes inquiry, which are, therefore, elicited under a promise of confidentiality. Factual information so acquired is then included in the Inspector General's report to the Director concerning the effectiveness of the agency's programs or the results of any problem areas it is called upon to investigate. The report contains recommendations for the Director's guidance, is regarded by him as a "management tool," and is never made public or published in any form. In conclusion, the Director says:
Westmoreland and CBS concede that the Inspector General's Report has an aura of the "deliberative process" about it, but they argue that such privilege as it may enjoy is not absolute and can be overcome by their showing of need for it. CBS acknowledges that it may be difficult for it to make the required showing; General Westmoreland, for his part, contends that Mr. Casey's affidavit is too conclusory to support the claim of privilege, and that the Report is crucial to his case. He also contends that, the material not having heretofore been kept confidential, any privilege has been waived.
Westmoreland's need for the Report (if it supports him) may be more acute than CBS', since he must prove at trial not only that he did not dissemble as CBS' broadcast suggested, but that CBS knew or ought to have known it at the time. Even so, it is not central to his case in the sense that his case must inevitably fail without it. Whatever its contents, it can do no more than corroborate him (assuming it is admissible at all), for it did not exist at the time he was accused of having been deceitful, and it was not a source upon which CBS relied in charging that he was.
The volume of CIA material already given the parties (and the effort expended in producing it) should allay most misgivings about the ingenuousness of the CIA's reasons for withholding the Report or suspicions that it may be doing so from indolence or caprice. Regardless of whether there could ever be a showing of need sufficient to overcome the privilege, neither CBS nor General Westmoreland has shown such a need for the Report as to transcend the CIA's need to keep the proceedings of its Inspector General to itself.
The Report may contain military secrets, United States v. Reynolds, 345 U.S. 1, 73 S. Ct. 528, 97 L. Ed. 727 (1953), or the deliberations of high executive officials, United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). Even if its contents is innocuous from the standpoint of national security, however, the Director himself fears that its disclosure "might impair the necessary functioning of a department of the executive branch," and considerable deference should be given "the formal claim of privilege asserted by one of the highest officers of the government." Black v. Sheraton Corp. of America, 184 U.S. App. D.C. 46, 564 F.2d 531, 542 (D.C.Cir.1977). See McGehee v. CIA, 225 U.S. App. D.C. 205, 697 F.2d 1095, 1112 (D.C.Cir.1983); Hayden v. NSA, 197 U.S. App. D.C. 224, 608 F.2d 1381, 1387 (D.C.Cir.1979), cert. denied, 446 U.S. 937, 100 S. Ct. 2156, 64 L. Ed. 2d 790 (1980). As an earlier case in this court recognized, the executive privilege may exist apart from the familiar military/state secrets genre. "It is well-established that the privilege obtains with respect to intra-governmental documents reflecting advisory opinions, recommendations and ...