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THE WASHINGTON POST v. UNITED STATES DOD

May 30, 1991

THE WASHINGTON POST, Plaintiff,
v.
UNITED STATES DEPARTMENT OF DEFENSE, Defendant



The opinion of the court was delivered by: OBERDORFER

 LOUIS F. OBERDORFER, UNITED STATES DISTRICT JUDGE.

 On December 21, 1989, the Special Master submitted his report. The parties filed initial responses, and at a status conference on June 21, 1990, they were permitted to brief the issues identified by the Special Master more fully. Those briefs have now been submitted and argument upon them was heard on May 8, 1991. Accordingly, the issues identified by the Special Master are now ripe for consideration.

 I.

 In contrast to the four documents in the first phase, the phase of the litigation currently at issue involves some two thousand documents totalling more than 14,000 pages and constituting the "actual working files for the planning and review of the rescue mission on 24 April 1980, as well as the following intelligence efforts to determine the location of the hostages and monitor the political efforts to obtain their release." Rice Declaration para. 4. Not surprisingly, the DOD has withheld or partially withheld numerous documents in the working files, in large part due to concern for the national security. On October 30, 1985, in support of its decision to withhold this information, the DOD submitted a motion for summary judgment, accompanying declarations, and twelve volumes of supporting materials. Faced with the expense of opposing that motion, the Post declined to pursue its request further. Armstrong, however, was permitted to intervene and carry on. See Order of April 15, 1986.

 In light of the large number of documents involved, earlier experience with administering a FOIA request for a similar quantity of sensitive documents (see Nishnic v. U.S. Dep't of Justice, 671 F. Supp. 771 (D.D.C.), aff'd, 264 U.S. App. D.C. 264, 828 F.2d 844 (1987); Nishnic v. U.S. Dep't of Justice, 671 F. Supp. 776 (D.D.C. 1987)), anticipated difficulties with sampling either by the defendant or through random selection, an Order of January 14, 1988 appointed Kenneth C. Bass, III, Special Master. See In re: Dep't of Defense, 270 U.S. App. D.C. 175, 848 F.2d 232, 239 (1988). The Order charged Bass with responsibility for "(1) examining in camera, and selecting for the Court, a representative sample of the 2000 or more documents and portions of documents that are the subject of the defendant's second motion for summary judgment and (2) summarizing for the Court the arguments that each party has made, or could make, about the claimed exemptions with respect to these 2000 documents . . . ." Order of January 14, 1988, at 2.

 In fulfillment of these responsibilities, the Special Master reviewed all of the documents in the working files, identified in consultation with the parties the primary legal issues in dispute, selected documents representative of those issues, and on December 21, 1989, submitted a report summarizing both the contents of those documents and the arguments that the parties either did or could raise about them. See Report of the Special Master at 5 - 11. That report is divided into three components. First, there is the Report of the Special Master itself which "explains the process that resulted in the selection of the documents." Id. at 1. Second, the Report contains descriptions of the 28 documents selected by the Special Master as representative of the legal issues in dispute. Finally, the Special Master submitted a nineteen-page summary of the arguments that "the parties have made or could make regarding release of the sample documents." Special Master's Summary of Arguments at 1.

 Of most immediate importance here are the legal issues identified by the Special Master. Limiting himself to the material withheld under the FOIA's national security exemption, the exemption claimed for the vast majority of information withheld, the Special Master identified five categories of documents based upon the "legal positions of the parties as set forth in the pleadings, the Court's rulings in this case, the reported decisions of courts in other FOIA cases and the Special Master's own experience in both government service and private practice." Id. at 17. Those categories are:

 
2. " Non-official" releases -- documents containing classified information that has been publicly disclosed by "non-official" sources such as information contained in Col. Beckwith's book Delta Force.
 
3. " Changed Circumstances " -- documents containing classified information which intervenor contends can no longer be classified because the subject matter has subsequently been released in another forum such as appropriations hearings, budgetary submissions or DOD publications.
 
4. " Open secrets " -- information which intervenor contends cannot properly be classified because "everyone knows" the secret as a result of officially released information and common sense, e.g., Foreign Broadcast Information Service (FBIS) origination of translations of foreign broadcasts or the "fact of" involvement of certain intelligence community entities or capabilities in the rescue mission.
 
5. " Inadvertent release "-- the unintentional release by the government of classified material, as DOD apparently contends occurred with regard to document A-50, a transcript of a press conference given by General Pustay on a "background" basis to representatives of numerous news organizations.

 Id. at 17. In constructing these categories, the Special Master contemplated that the Court's rulings on these documents would "be relatively easily applied to the balance of the documents" and would guide the DOD's review of the rest of the working files. Id. at 20. *fn1"

 In response to the Special Master's Report, Armstrong submitted four volumes of materials in the public domain that he expected the working files to contain and a memorandum identifying and describing the information within those materials. Then, as mentioned above, the parties filed responses to the Special Master's Report, several status conferences were held, and after a hearing on June 21, 1990, the parties were permitted to brief more thoroughly the issues identified in the Special Master's Report. See Order of July 2, 1990. At the June 21, 1990 hearing, the DOD also asked that it be allowed -- in light of the Special Master's Report and Armstrong's responses to that report -- to reexamine the exemptions it claimed in the documents selected by the Special Master, to release the documents or portions of them that it no longer felt were exempt from disclosure, and to receive rulings upon the exemptions it continued to claim. Such rulings, the DOD hoped, would provide concrete guidance for its review of the exemption claims in the remaining documents. In the process of this reexamination, *fn2" the DOD decided to release document A-50, the one document in the "inadvertent release" category, thereby mooting the fifth category identified by the Special Master. The other four categories are, however, now ripe for consideration.

 II.

 As noted above, the Special Master's Report focused upon the information withheld by the DOD under Exemption 1 of the FOIA, which allows agencies to withhold information "in the interest of national defense or foreign policy." 5 U.S.C. § 552(b)(1). *fn3" To be withheld under that exemption, "a document must be classified in accordance with the procedural criteria of the governing Executive order as well as its substantive terms." Lesar v. United States Dep't of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 483 (1980) (footnote omitted).

 The governing order here is Executive Order 12356, and it has two primary substantive criteria. First, the information must fall within one of categories enumerated by the order. Those categories include:

 
(1) military plans, weapons, or operations;
 
(2) the vulnerabilities or capabilities of systems, installations, projects, or plans relating to the national security;
 
(3) foreign government information;
 
(4) intelligence activities (including special activities), or intelligence sources or methods; [and]
 
(5) foreign relations or foreign activities of the United States . . . .

 Executive Order 12356 § 1.3(a), April 2, 1982, 47 Fed. Reg. 14874, 15557, reprinted in 50 U.S.C.A. § 401 note (1991) [hereinafter, "E.O. 12356"]. Second, information that concerns one or more of these categories may be classified only if "its unauthorized disclosure, either by itself or in the context of other information, reasonably could be expected to cause damage to the national security." Id. § 1.3(b).

 E.O. 12356 also requires that classification follow certain procedures. First, information may only be classified by an individual with "original classification authority." Id. § 1.3(b). Furthermore, if the information is classified or reclassified after a FOIA request has been received by an agency, it must be classified by "the agency head, the deputy agency head, the senior agency official designated under Section 5.3(a), or an official with original Top Secret classification authority." Id. § 1.6(d). Properly classified documents must also have certain markings which identify the classified information and show its classification level, the identity of the original classification authority, the agency and date of origin, and the date or event for declassification. See id. § 1.5.

 Substantive review of classification decisions is quite deferential. Because the major substantive question under Exemption 1 involves an evaluation of the national security, Congress instructed courts to "accord substantial weight to an agency's affidavit concerning the details of the classified status of [a] disputed record." S. Conf. Rep. No. 93-1200, 93d Cong., 2d Sess. 12 (1974). Acknowledging this congressional command and recognizing that judges "lack the expertise necessary to second-guess . . . agency opinions in the typical national security FOIA case," our Court of Appeals has, in the absence of any contradictory evidence, required little more than a showing that the agency's rationale is logical. Halperin v. CIA, 203 U.S. App. D.C. 110, 629 F.2d 144, 148 (1980); accord Military Audit Project v. Casey, 211 U.S. App. D.C. 135, 656 ...


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