April 1983; to two of the technical monographs between January 1978 and October 1981; and to one of the monographs between October 1981 and April 1983.
Plaintiffs also point to the fact that at least five researchers requested and reviewed all 31 pieces of correspondence and at least five of those documents were copied at the researchers' request. Plaintiffs state that between 1980 and 1983, approximately 25 to 100 people used the reading room where the technical materials were stored. As noted by both sides, these figures are not complete because the Library's record-keeping system was not set up until 1981 or 1982 and the records for one year are missing.
While it is true that the disputed documents were part of the public domain for varying lengths of time, public disclosure alone is not a sufficient basis for finding a first amendment violation where the national security is at stake. This is especially so given the fact that in April 1982, President Reagan gave NSA the right to "reclassify information previously declassified and disclosed if it is determined in writing that (1) the information requires protection in the interest of national security ; and (2) the information may reasonably be recovered." Sec. 1.6(c), Exec. Order No. 12,356, 3 C.F.R. 166 (1982), reprinted in 50 U.S.C. § 401 note at 51 (1982) (emphasis added). It appears to the Court that the inclusion of the above-cited provision evidences an intention by the President to tip the scales in favor of nondisclosure where disclosure may threaten the national security. The Order "recognizes that it is essential that the public be informed concerning the activities of the Government, but that the interests of the United States and its citizens require that certain information concerning the national defense and foreign relations be protected against unauthorized disclosure." Id. at 166.
The holding in Cox Broadcasting also can be distinguished. In that case, the petitioners, a reporter and its employer-broadcasting company, challenged a Georgia statute making it a misdemeanor to broadcast a rape victim's name. The Supreme Court held that a State may not "impose sanctions on the accurate publication of the name of a rape victim obtained from public records - more specifically, from judicial records which are maintained in connection with a public prosecution and which themselves are open to public inspection." Cox Broadcasting Corp. v. Cohn, 420 U.S. at 491. The reasons given for distinguishing Oklahoma Publishing apply with equal force to Cox Broadcasting. The Supreme Court simply did not have before it the same caliber of sensitive information that is presently before this Court when it reached its decisions in Oklahoma Publishing or Cox Broadcasting. For these reasons, the Court finds that neither of these cases controls the disposition of the instant matter.
"As a general rule, citizens have no first amendment right of access to traditionally nonpublic government information." McGehee v. Casey, 231 U.S. App. D.C. 99, 718 F.2d 1137, 1147 (D.C. Cir. 1983) (citations omitted). The cryptological information at issue is a clear example of "traditionally nonpublic government information." "Secrecy in international relations has long been acknowledged to be essential to the functioning of the national government," id. at 1143, n.11, and "it is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy." New York Times Co. v. United States, 403 U.S. 713, 728, 29 L. Ed. 2d 822, 91 S. Ct. 2140 (1970). Given the important interest of national self-preservation, the Court finds that plaintiffs do not have a first amendment right of access to classified materials previously disclosed to the public where their disclosure might endanger the national security.
The Court's inquiry does not end here. Plaintiffs do have a general interest in ensuring that NSA properly classified the documents at issue. NSA's explanations for its classification decisions should be neither "conclusory, merely reciting statutory standards [nor] too vague nor sweeping." Hayden v. National Security Agency, 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).
"Judicial review of [NSA's] classification decisions, by reasonable necessity, cannot second guess [NSA's] judgments on matters in which the judiciary lacks expertise." McGehee v. Casey, 718 F.2d at 1148. A reviewing court "should conduct a de novo review of the classification decision, while giving deference to reasoned and detailed [NSA] explanations of that classification decision." Id. "What may seem trivial to the uninformed  may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in context," United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir.), cert. denied, 409 U.S. 1063, 34 L. Ed. 2d 516, 93 S. Ct. 553 (1972).
As previously mentioned, the Court conducted an in camera review of the classified affidavit of Mr. E. Rich, Deputy Director, National Security Agency. After examining this document, the Court concluded that NSA had classified properly the information at issue. Disclosure of this information could be reasonably expected to cause serious damage to the national security.
The Court's decision is not altered in this instance by NSA's apparent failure to comply strictly with the classification scheme authorized in Executive Order No. 12,356.
The Court does not condone by any means NSA's cavalier attitude toward its classification determination of the materials at issue, especially the 31 pieces of correspondence. However, the Court believes that this factor alone should not be used as a means to accomplish by the back door what the Court would not permit by the front door -- invalidation of NSA's classification determination and disclosure of the information in question. The threat posed to the national security is just too great.
For these reasons, the Court finds that there exists no issue of material fact and defendant is entitled to judgment in his favor as a matter of law, Fed. R. Civ. P. 56. The Court, therefore, grants defendant's motion for summary judgment.
[EDITOR'S NOTE: PAGINATION IN THE HARD COPY SOURCE ENDS AT THIS POINT.]
O R D E R
Upon consideration of defendant's motion to dismiss or in the alternative for summary judgment; plaintiffs' motion for summary judgment; an in camera inspection of the classified affidavit of Mr. E. Rich, Deputy Director, National Security Agency; the entire record herein; and for the reasons set forth in the accompanying opinion, it is by the Court this 27th day of March 1986,
ORDERED that defendant's motion for summary judgment is granted; it is further
ORDERED that plaintiffs' motion for summary judgment is denied; and it is further
ORDERED that this case is hereby dismissed with prejudice.