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Stillman v. Department of Defense

June 7, 2002

DANNY B. STILLMAN, PLAINTIFF,
v.
DEPARTMENT OF DEFENSE,ET AL. DEFENDANTS.



The opinion of the court was delivered by: Emmet G. Sullivan, United States District Judge

MEMORANDUM OPINION

Plaintiff Danny Stillman is a former employee of the Los Alamos National Laboratory who has written a book on China's nuclear weapons program. Plaintiff filed this lawsuit against the United States Department of Energy ("DOE"), Department of Defense ("DOD") and the Central Intelligence Agency ("CIA") alleging that defendants' classification of portions of plaintiff's manuscript during the mandatory pre-publication clearance process was improper and violated his First Amendment rights. After extended negotiations over the passages at issue, the remaining defendants DOD and CIA maintain that they have properly classified his manuscript. Plaintiff has participated in negotiations with defendants over defendants' classification determinations without the assistance of counsel. Defendants have denied access to plaintiff's counsel to those portions of the manuscript that have been designated by defendants as classified.

The case comes before this Court on plaintiff's motion to compel defendants to permit his counsel access to the classified portion of the manuscript and defendants' classified pleadings in support of those classifications. Plaintiff has alleged that denying his counsel access to this information, and preventing plaintiff from speaking to his counsel about this information, violates his First Amendment rights to a reasonable pre-clearance process and to speak freely with counsel. Defendants respond that their decision to deny plaintiff's counsel access to the information because he does not have a "need to know" is not reviewable by this Court, and even if it were, the compelling national security interests in preventing disclosure of this sensitive information outweigh any First Amendment interest here.

Having considered plaintiff's motion to compel, the responses and replies thereto, the additional rounds of briefing requested by this Court, the briefs of amicus curiae American Civil Liberties Union (ACLU), the oral argument of the parties and amicus before this Court on April 26, 2002, as well as the applicable statutory and case law, this Court GRANTS IN PART and DENIES IN PART plaintiff's motion to compel.

BACKGROUND

Danny Stillman is a former employee of the Los Alamos National Laboratory ("Los Alamos"), which operates under contract with the DOE for work related to the nuclear weapon stockpile of the United States. After Mr. Stillman's retirement from full-time employment at Los Alamos, he authored a manuscript entitled "Inside China's Nuclear Weapons." That manuscript describes his nine trips to China to visit nuclear weapons facilities and test sites between 1990 and 1999.

As a condition of Mr. Stillman's employment at Los Alamos, he signed a number of non-disclosure agreements that require submission of this manuscript to the government for pre-publication review to determine whether any portion contains classified information. Mr. Stillman complied with those agreements and submitted his manuscript for review.

In October of 2000, Mr. Stillman was informed that no portion of his manuscript would be approved for public release. Plaintiff engaged in ongoing negotiations with defendants over the classification determination.

On June 18, 2001, plaintiff filed this lawsuit, alleging that the DOE, DOD, and CIA have violated his First Amendment rights by improperly classifying his manuscript and refusing to authorize its publication. After the filing of this lawsuit, defendants removed their objections to a substantial portion of the manuscript. The DOE's objections to the publication of certain information were resolved when plaintiff agreed to delete the information at issue. DOE was subsequently dismissed from this suit. See Order of 10/16/01. The DOD and CIA continued to withhold authorization to publish portions of Mr. Stillman's manuscript. During the course of this lawsuit, plaintiff and defendants have conducted negotiations over that manuscript, the result of which has been to further narrow the scope of the disagreement. However, substantial disagreement remains.

While Mr. Stillman obviously has access to the portions of the manuscript he wrote to which defendants object, his counsel does not. Plaintiff's counsel, Mark Zaid, has consistently requested authorization for access to the material identified as classified in plaintiff's manuscript since being retained by plaintiff in March of 2001. At a status hearing before this Court on September 5, 2001, government counsel indicated that Mr. Zaid was being denied access to the classified information because he did not have the requisite "need to know," as set forth in Executive Order 12958 ("Classified National Security Information"), 60 Fed. Reg. 19825 (Apr. 17, 1995), 3 C.F.R. 333 (1976), reprinted at 50 U.S.C. § 435 (note).

Executive Order 12958 sets forth a uniform system for classifying, safeguarding, and declassifying national security information. 60 Fed. Reg. 19825 (April 17, 1995). Section 4.2 of Executive Order 12958 states that "a person may have access to classified information" provided three conditions are met: 1) "a favorable determination of eligibility for access has been made by an agency head or the agency's head's designee;" 2) "the person has signed an approved nondisclosure agreement;" and 3) "the person has a need-to-know the information." Exec. Order 12958 §4.2, 60 Fed. Reg. at 19836. "Need-to-know" is defined at §4.1(c) of the Order, as "a determination made by an authorized holder of classified information that a prospective recipient requires access to specific classified information in order to perform or assist in a lawful and authorized governmental function." Exec. Order 12958 §4.1(c), 60 Fed. Reg. at 19836. Executive Order 12958 provides a right and procedures for appeal, but only to "authorized holders of information" who challenge classification status of information as improper. Exec. Order 12958 §1.9, 60 Fed. Reg. at 19830.

Following the September 5, 2001 hearing, Mr. Zaid submitted letters of appeal to both DOD and the CIA, pursuant to the remedies set forth in Part 5 of Executive Order 12968. Executive Order 12968, entitled "Access to Classified Information," creates a "uniform Federal personnel security program for employees who will be considered for initial or continued access to classified information." 60 Fed. Reg. 40245 (August 2, 1995). Mr. Zaid's appeal was denied by both the CIA and DOD on October 5, 2001. See Pl.'s Motion to Compel, Ex. 1-A (letter to Mark Zaid from Robert J. Eatinger, Jr., Associate General Counsel, CIA dated Oct. 5, 2001 and letter to Mark Zaid from Stewart F. Aly, Associate Deputy General Counsel, DOD dated Oct. 5, 2001) ("CIA letter" and "DOD letter").

The CIA letter, signed by Robert J. Eatinger, Jr., Associate General Counsel of the CIA, stated that although Mr. Zaid had no appeal rights pursuant to Executive Order 12968 because he was not a government employee, even if he could appeal, he was denied access to the classified information because the CIA determined he did not have a "need to know" as defined in Executive Order 12958. See CIA letter. The letter stated by way of explanation that "[t]he fact that you represent a client in litigation with the CIA does not, alone, establish a need-to-know. Under Executive Order 12958 [sic], this determination is wholly within the discretion of the agency controlling the information, and there is neither a right to, nor an administrative process for, appeal." Id.

The DOD letter, signed by Stewart F. Aly, Associate Deputy General Counsel of DOD, also stated that Mr. Zaid did not have any right to appeal under Executive Order 12968, and even if he did, the DOD has determined he lacks the requisite "need to know." See DOD letter. The letter explains:

[T]he Department of Defense has determined that you have not demonstrated a "need-to-know" that information in order to perform or assist in a lawful and authorized governmental function . . . The mere fact that you represent a plaintiff in a case involving classified information does not establish a "need-to-know." There is no right to appeal a need-to-know determination. See Part 5, Section 5.1 of Executive Order 12968 (a need-to-know "is a discretionary determination and shall be conclusive"). Id.

Further, DOD's letter stated that while DOD has established policies and procedures by which attorneys representing DOD military, civilian or contractor personnel engaged in lawsuits against the DOD may be provided access to DOD classified information, the fact that Mr. Stillman was never an employee of DOD precluded the applicability of those regulations. Id. (citing DOD 5200.2-R, ¶ 3-404(f)).

Because both defendants determined that Mr. Zaid did not have the requisite need to know, neither made a determination as to his background or eligibility for access. See DOD letter ("the Department of Defense has not made any determination regarding your eligibility for access to classified information under other circumstances. The decision not to authorize your access to the classified information at issue in this Stillman manuscript is based solely on a determination that you do not have a 'need to know' this information."); CIA letter ("Since, as an initial matter, you were found to have no need-to-know, the Agency has no need to, nor did it, determine your access eligibility in this case."). Thus, defendants' denial of access did not turn on any particular concern with Mr. Zaid. *fn1

The declarations from Mr. Eatinger and Mr. Aly filed by defendants further explain their respective decisions that plaintiff's counsel lacked the requisite need to know. See Defs.' Supp. Mem. of 3/8/2002, Declaration of Robert J. Eatinger, Jr. ("Eatinger Decl.") and Declaration of Stewart F. Aly ("Aly Decl.").

Mr. Eatinger is the Chief of the Litigation Division within the CIA's Office of General Counsel. Eatinger Decl. at ¶ 1. Among Mr. Eatinger's responsibilities as the Chief of Litigation is "determining whether any non-CIA person, other than Article III, U.S. Constitution judges, may be granted access to CIA classified information in the course of any litigation." Id. at ¶ 2. It was his decision to deny plaintiff's counsel access to the portions of plaintiff's manuscript designated as classified by the CIA. Id. at ¶ 7.

As the Chief of Litigation, Mr. Eatinger became familiar with this litigation and has reviewed the classified portions of plaintiff's manuscript. He contends that the pre-publication review of this manuscript was complicated "by the fact that it contains equities of several federal agencies, requiring extensive coordination between these agencies." Id. at ¶ 4. It was these "complexities" plus the "sensitive nature of the information at issue" which led Mr. Eatinger to "strictly construe and apply the need-to-know principle." Id. Mr. Eatinger then explained that the need-to-know determination was "based on whether providing Mr. Zaid access to the information at issue was necessary to permit him to perform or assist in a lawful and authorized governmental function." Id. at ¶ 9. Mr. Eatinger then explained that:

CIA determined that providing it was not. The fact that Mr. Zaid represents a client in civil litigation against the CIA or United States Government does not, by itself, qualify as a need-to-know under Executive Order 12958. Mr. Zaid is not performing a lawful and authorized government function, but rather is representing a private party seeking to vindicate through litigation that private party's grievance against the United States. Nor will Mr. Zaid be aiding the United States in performing a lawful and authorized government function. Id.

Then, without reference to the "lawful and authorized governmental function" standard, Mr. Eatinger distinguished Mr. Zaid's request from other occasions when the CIA has granted access to a plaintiff's counsel involved in litigation against the CIA:

In the majority of these cases, the mere fact that the counsel's client is a current or former CIA employee is classified and the need-to-know is limited to that classified fact . . . Even in these cases, however, the Agency must consider the sensitivity of the classified information at issue. Id. at ¶ 10. Mr. Eatinger also distinguished this case from those prior occasions when the CIA Publication Review Board has granted an attorney access to classified information during the pre-publication administrative review process: In those cases, the Agency official empowered to determine a need-to-know is the Chair of the Agency's Publication Review Board. That official has in some cases determined that a private attorney was aiding the United States in performing a lawful and authorized function by negotiating specific language changes during a non-adversarial process of manuscript review. Id. at ¶ 11.

Once the author files a lawsuit, however, "the matter moves from an administrative negotiation to an adversarial litigation, and the authority to determine need-to-know becomes mine, subject to review by senior authorities within the Office of General Counsel and CIA." Id.

Mr. Aly is an Associate Deputy General Counsel at the DOD. Aly Decl. at ¶ 1. Mr. Aly's responsibilities include acting as counsel to the office that conducts pre-publication reviews and "ensuring that security programs are conducted in compliance with all applicable statutes, Executive Orders, and DOD regulations." Id. at ¶¶ 3,4. Mr. Aly made the decision to deny plaintiff's counsel access to the portions of plaintiff's manuscript designated as classified by the DOD because access was not "consistent with [the applicable] orders and regulations and with the interests of national security." Id. at ¶ 8.

Mr. Aly considered the applicability of two DOD regulations that discuss the release of classified information in litigation. Id. at ¶¶ 10, 11. The DOD regulation that implements Executive Order 12958 is DOD regulation 5200.1-R. See id., Ex.6. That regulation states that release of classified information in litigation is governed by DOD Directive 5405.2 ("Release of Official Information in Litigation and Testimony by DOD Personnel as Witnesses," dated July 23, 1985). This Directive, in turn, assigns responsibility for acting on requests for release in litigation to the DOD General Counsel's Office and sets forth factors to be considered in deciding whether to authorize the release of information. Those factors include whether the information is classified, except for in camera disclosures subject to assertion of privilege. See id., Ex. 7.

The other DOD regulation that authorizes the release of classified information in litigation is 5200.2-R, ¶ 3-404(f). See id., Ex. 8. That regulation states:

Attorneys representing DOD military, civilian, or contractor personnel requiring access to DOD classified information to properly represent their clients shall normally be investigated by DIS and cleared in accordance with the prescribed procedures in paragraph C3.4.2. This shall be done upon certification of the General Counsel of the DOD component involved in the litigation that access to specified classified information, on the part of the attorney concerned, is necessary to adequately represent his or her client. Id.

Mr. Aly concluded that this regulation does not apply because Mr. Stillman has never been an employee of DOD. Id. at ¶ 11.

Mr. Aly has reviewed the classified portions of plaintiff's manuscript and has met on several occasions with classification experts in DOD to discuss the manuscript. Id. at ¶ 5. Mr. Aly concluded that the "extremely sensitive nature of the classified information to which Mr. Zaid seeks access" led to a "corresponding need to construe and apply the need-to-know requirement strictly." Id. at ¶ 14. With this "in mind," Mr. Aly then determined that Mr. Zaid did not have the requisite "need-to-know" because he was neither performing nor assisting in a government function: "First, Mr. Zaid, in representing Mr. Stillman in this challenge to the classification of specific information, is not performing a governmental function." Id. at ¶ 14 (a). The letter continued:

Second, Mr. Zaid does not require access to the classified information at issue in order to 'assist' in a government function. Disclosure of classified information to Mr. Zaid would not assist the Department of Defense or DIA in protecting that information from unauthorized disclosure because he has no experience or expertise in this area. Nor would it assist in evaluating his claims, and those of his client, that the information should not be classified for the same reason and for an additional one: his views as a private citizen are not relevant to the official determination. To the extent Mr. Zaid seeks access to this information in order to assist Mr. Stillman in pursuing his claims against the government, Mr. Stillman is not performing a governmental function in bringing a lawsuit but rather is pursuing personal interests. To the extent Mr. Zaid seeks access to this information in order to assist the Court in its governmental function of ruling on the merits of Mr. Stillman's claims, Mr. Zaid does not require access to the information at issue in order to render such assistance. As an attorney, and officer of the Court, he can perform many important functions, including advising the Court (and his client) about the relevant case law and the legal issues he has identified. To the extent that it becomes appropriate for Mr. Stillman to submit any information that may be classified, Mr. Zaid can also advise him as to the procedures for making such a submission to the Court, and any relevant Local Rules. None of this requires access to the classified information at issue. Id. at ¶ 14(b).

After Mr. Zaid's appeal was denied by the DOD and CIA, plaintiff filed the motion to compel presently before this Court. After receiving the response and reply to that motion, this Court determined that further briefing on the First Amendment issues raised by this case was needed, and therefore issued an Order on December 13, 2002 identifying several issues to be addressed. The Court also ordered defendants to submit for in camera, ex parte review "evidence that sets forth the reasoning for the denial of access to plaintiff's counsel on the grounds that he does not have the requisite need to know." *fn2 Subsequent to issuing this Order, the Court granted the ACLU permission to file an amicus brief discussing these First Amendment Issues. After receiving the parties' and amicus' responses to this Court's Order of December 13, 2001, this Court determined that further briefing was necessary to discuss possible ways in which the Court could resolve this motion. That briefing was completed on March 22, 2002. The Court then determined once again that further briefing was necessary to clarify the government's separation of powers argument. That briefing was completed on April 24, 2001. A hearing was held on April 26, 2002 at which counsel for plaintiff, defendants, and amicus presented oral arguments.

DISCUSSION

I. Defendants' Denial of Access to Plaintiff's Counsel is Subject to Judicial Review for Violations of the First Amendment.

The question before the Court is the constitutionality of defendants' decisions to deny plaintiff's counsel, Mr. Zaid, access to the allegedly classified portions of plaintiff's manuscript and the defendants' classified declarations for the purpose of challenging the pre-publication classification decisions in this Court. Defendants argue that the United States Constitution has placed the discretion to control access to classified information solely in the hands of the Executive Branch of the federal government, and therefore this Court is precluded from reviewing plaintiff's First Amendment challenge to defendants' actions here. Contrary to defendants' argument, the Constitution itself provides this Court's authority to review defendants' actions.

A. Constitutional Interests Implicated Here

The interest of the President in controlling access to information bearing on national security derives from Article II of the United States Constitution. See Department of Navy v. Egan, 484 U.S. 519, 525, 108 S. Ct. 818 (1988). The President has the authority to protect such national security information pursuant to both the Executive Power, U.S. Const. Art. II, § 1(1), and as "Commander in Chief of the Army and Navy of the United States," id. at § 2(1). As the Supreme Court explained in Egan, "[The President's] authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy . . . [to have] access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant." 484 U.S. at 527 (citing Cafeteria Workers v. McElroy, 367 U.S. 886, 890, 81 S. Ct. 1743 (1961)). Thus, the federal government's "compelling interest" in controlling access to national security information has been long recognized by the Supreme Court. See, e.g, Egan, 484 U.S. at 527 (discussing history of United States' information classification); Snepp v. United States, 444 U.S. 507, 509 n. 3, 100 S.Ct. 763 (1980); United States v. Robel, 389 U.S. 258, 267, 88 S. Ct. 419 (1967); United States v. Reynolds, 345 U.S. 1, 10, 73 S. Ct. 528 (1953); Totten v. United States, 92 U.S. (2 Otto) 105, 106, 23 L. Ed. 605 (1876).

The speech interests asserted by plaintiff here are equally fundamental. "The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system." Stromberg v. California, 283 U.S. 359, 369, 51 S. Ct. 532 (1931); see also New York Times v. Sullivan, 376 U.S. 254, 269, 84 S. Ct. 710 (1976) ("The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions."). The constitutional protection of the freedom of speech "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U.S. 476, 484, 77 S. Ct. 1304 (1957). The First Amendment, said Judge Learned Hand, "presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all." United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943). This essential freedom applies with special force to speech aimed at government institutions: "(I)t is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions." Bridges v. California, 314 U.S. 252, 270, 62 S. Ct. 190 (1941). As the Supreme Court emphasized in New York Times v. Sullivan, "[w]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." 376 U.S. at 270-71 (citing Terminiello v. Chicago, 337 U.S. 1, 4, 69 S. Ct. 894 (1949) and De Jonge v. Oregon, 299 U.S. 353, 365, 57 S. Ct. 255 (1937)).

Furthermore, the authority of this Court to pass judgment on constitutional questions is also constitutionally grounded, deriving from Article III itself. It is fundamental that "[i]t is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60 (1803). As the Supreme Court stated when faced by the Executive Branch's claim of the nonjusticiability of executive privilege in United States v. Nixon, "[o]ur system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch." 418 U.S. 683, 704, 94 S. Ct. 3090 (1974)(Nixon I); see also United States v. Rostenkowski, 59 F.3d 1291, 1306 (D.C. Cir. 1995) ("Of course, under Article III of the Constitution the courts are the final arbiters of the law..."). Thus, any claim by a coordinate branch of government that a court lacks the ability to determine whether an individual's constitutional rights have been infringed must overcome a weighty presumption of reviewability.

B. Nature of the Decision Made by Defendants to Deny Plaintiff's Counsel Access

This case presents a conflict among interests of constitutional dimension, and it is emphatically the province and duty of this Court to resolve this conflict. However, before proceeding to the issue of justiciability, it is important to explain why this constitutional conflict is less clearly presented than the government would have this Court believe. Defense counsel has consistently characterized the decision to deny plaintiff's counsel access to information as based on an assessment of the risk to national security caused by disclosure of this information. See, e.g., Defs.' Mem. of 3/12/02 at 7 ("Both decisions turn on predictive judgments as to the risks to national security from allowing access to classified information and thus both must be left to Executive Branch discretion under our constitutional framework."). *fn3

Regardless of defense counsel's arguments to this Court, the evidence submitted by defendants from the two individuals who made the decisions to deny access reflects a slightly different justification for those decisions. The two letters to Mr. Zaid from Mr. Eatinger and Mr. Aly, and the Eatinger and Aly Declarations make clear that while the sensitivity of the information at issue led DOD and the CIA to construe the need-to-know standard narrowly, it was the need-to-know standard itself that led them to reject Mr. Zaid's request. Specifically, both Mr. Eatinger and Mr. Aly explain that they denied access to Mr. Zaid because they determined that Mr. Zaid was not performing or assisting with a governmental function. A denial of access based on this determination presents a very different question than a denial of access based on the predicted risk to national security caused by release of the information.

To be clear, neither Mr. Eatinger nor Mr. Aly stated that they determined that Mr. Zaid did not have the requisite need-to-know wholly because of the risk to national security posed by release of this information. Rather, they both stated that although the sensitivity of this information was a consideration that led them to narrowly construe the need-to-know provision, the denial was based on the fact that Mr. Zaid was not performing or aiding in a legitimate governmental function.

This explanation was not made clear in the letters sent to Mr. Zaid. The letters from DOD and the CIA to Mr. Zaid that denied his appeal of the decision to deny access stated simply that Mr. Zaid did not have the requisite need-to-know information in order to "perform or assist in a lawful and authorized governmental function." By way of explanation of the need-to-know decision, Mr. Aly stated only that "[t]he mere fact that you represent a plaintiff in a case involving classified information does not establish a 'need-to-know.'" Mr. Aly never mentioned the sensitivity of the information at issue in this letter as a reason for determining Mr. Zaid lacked a need-to-know. The CIA provided even less information to Mr. Zaid. Mr. Eatinger's letter stated only that the CIA determined that Mr. Zaid lacked the requisite need-to-know, and that "[t]he fact that you represent a client in litigation with the CIA does not alone, establish a need-to-know." The CIA letter mentioned neither the governmental function requirement nor the sensitivity of the information at issue as an explanation for deciding that Mr. Zaid lacked a need-to-know.

The declarations of Mr. Aly and Mr. Eatinger prepared for this litigation further explain their respective decisions and raise the sensitivity of the information at issue for the first time. Mr. Eatinger, on behalf of the CIA, stated that The need-to-know determination made by the CIA was based on whether providing Mr. Zaid access to the information at issue was necessary to permit him to perform or assist in a lawful and authorized governmental function. CIA determined that providing it was not... Mr. Zaid is not performing a lawful and authorized government function, but rather is representing a private party seeking to vindicate through litigation that private party's grievance against the United States. Id. at 4-5.

Mr. Eatinger also explained that two things led him to "strictly construe and apply the need-to-know principle": the "sensitive nature of the information," as well as the complications caused by the "extensive coordination" required because of the number of different agencies involved in the pre-publication review. *fn4 Similarly, Mr. Aly concluded that the "extremely sensitive nature of the classified information to which Mr. Zaid seeks access" led to a "corresponding need to construe and apply the need-to-know requirement strictly." Id. at ¶ 14. With this "in mind," Mr. Aly then determined that Mr. Zaid did not have the requisite "need-to-know" because he was neither performing nor assisting in a government function. Unlike Mr. Eatinger, Mr. Aly then gave a very detailed explanation for why a plaintiff's counsel suing the government is not performing or assisting in a government function. *fn5 Id.

It is not clear to this Court what these officials meant when they said the sensitive nature of the material led them to construe the need-to-know provision narrowly, and therefore decide that Mr. Zaid did not serve a governmental function. Does this mean that they would have interpreted "governmental function" differently had the information been less sensitive? *fn6 The connection between whether Mr. Zaid serves a governmental function by helping to challenge classifications decisions and the sensitivity of the information at issue has never been explained by the government. Indeed, despite the explanations given by their own declarants, defendants continue to assert that "the questions of what constitutes a 'lawful and authorized governmental function' and whether plaintiff's counsel 'requires' access to classified information to assist such a function are not properly before the Court." Defs.' Mem. of 3/8/02 at 9 n. 12.

Thus, the government has been less than straightforward as to why it denied Mr. Zaid access to this information. Defense counsel has consistently argued a position that is belied in part by the evidence defendants have submitted to this Court. In light of the serious allegations that DOD and the CIA are intentionally denying plaintiff's counsel access in order to retaliate against plaintiff for asserting his First Amendment rights, *fn7 such inconsistencies by the government in explaining its decision are, to say the least, suspect.

Furthermore, such inconsistencies create difficulties for this Court's analysis of the constitutional questions presented here. If DOD and the CIA denied Mr. Zaid access based on their assessment of the sensitivity of this information to national security, then the government's interest and expertise in making such determinations are arguably compelling and must be balanced as such. However, if these agencies denied Mr. Zaid access because they determined that Mr. Zaid was not performing a "governmental function" as required by the Executive Order's definition of "need-to-know," then the government's interest and expertise in making that type of determination are neither compelling nor deserve deference by this Court.

At the end of the day, the Court will rely on the explanations given by the officials who actually made these decisions, Mr. Eatinger and Mr. Aly, rather than the post hoc explanation of those decisions given by defense counsel. A fair reading of Mr. Eatinger and Mr. Aly's declarations indicates that they denied access because Mr. Zaid failed to perform or assist in a government function, but that decision was at least informed in part by the sensitivity of the information at issue. The Court believes it would be error to fail to recognize the role played by the sensitive nature of the information at issue here. However, it would equally be error to attribute all of their decisions to the security risk justification. Thus, this Court will analyze the constitutional questions with both of these justifications in mind. However, the lack of clarity with which the government has proceeded, and defense counsel's mischaracterization of the decisions that were made, will be given appropriate weight in this Court's First Amendment analysis, particularly with respect to whether the government's action here was aimed at the suppression of free expression, and whether this action was sufficiently tailored to serve a compelling government interest.

C. The Government's Separation of Powers Argument

With the government's explanation for its actions in mind, this Court turns to the argument that it lacks the authority to hear this constitutional challenge. The government makes several arguments, to be discussed in turn, why this Court can not review the decisions made by DOD and the CIA to deny plaintiff's counsel access to the allegedly classified information at issue. First, the government contends that the Executive's authority to deny access is a power grounded in the text of Article II itself, and the separation of powers doctrine precludes any interference with the President's ability to perform a textually committed power. See Defs.' Mem. of 3/8/02 at 5; Defs.' Opp'n of 11/16/01 at 4-5, 8. Second, the government argues that Egan and its progeny make clear that Article II precludes judicial review of the merits of a denial of access to classified information. Defs.' Mem. of 3/8/02 at 7. Third, the government argues that Executive Order 12958 provides no authority for this Court to enforce its terms and therefore actions taken pursuant to the Executive Order are unreviewable. Defs.' Opp'n of 11/16/01 at 10.

Before explaining why defendants' arguments inaccurately describe separation of powers doctrine, it is important to reiterate that only one aspect of defendants' decision to deny access is arguably grounded in the text of the Constitution itself. As discussed above, defendants' explanation of their decision to deny access to Mr. Zaid has been less than consistent. The determination that plaintiff's counsel is not serving a governmental function by assisting the Court in making a proper decision on plaintiff's claims is not a question uniquely and exclusively dedicated by the Constitution to defendants. Defendants' argument that this Court may not review their decisions rests entirely on the assumption that defendants denied Mr. Zaid access wholly because of the sensitive nature of this information. As the declarations of Mr. Eatinger and Mr. Aly make clear, defendants' decisions rested, at best, only in part on the sensitive nature of the information. However, because the nature of the information and the potential risk to national security of its disclosure to plaintiff's counsel did in some way impact this decision, this Court must address defendants' unpersuasive separation of powers arguments.

The Supreme Court has affirmed time and again the importance of the allocation of governmental power by the United States Constitution into three coordinate branches. Clinton v. Jones, 520 U.S. 681, 117 S. Ct. 1636 (1997); Morrison v. Olsen, 487 U.S. 654, 108 S. Ct. 2597 (1988); Bowsher v. Synar, 478 U.S. 714, 106 S. Ct. 3181 (1986); Humphrey's Executor, 295 U.S. 602, 55 S. Ct. 869 (1935). This separation of powers was regarded by the Framers of the Constitution as "a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other." Buckley v. Valeo, 424 U.S. 1, 122, 96 S. Ct. 612 (1976); see also Mistretta v. United States, 488 U.S. 361, 383, 109 S. Ct. 647 (1989) ("[c]oncern of encroachment or aggrandizement . . . has animated our separation of powers jurisprudence."). Thus, the Supreme Court has invalidated actions by one branch of government that impermissibly usurp the power of another co-equal branch. See, e.g., Plaut v. Spendthrift Farm, 514 U.S. 211, 115 S. Ct. 1447 (1995) (unconstitutional legislative assumption of judicial power); INS v. Chadha, 462 U.S. 919, 103 S. Ct. 2764 (1983) (unconstitutional legislative assumption of executive power); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863 (1952) (unconstitutional executive assumption of legislative power). In addition, even when a branch of government does not assume for itself a power allocated to another, "the separation of powers doctrine requires that a branch not impair another in the performance of its constitutional duties." Loving v. United States, 517 U.S. 748, 757, 116 S. Ct. 1737 (1996); Commodity Futures Trading Ass'n v. Schor, 478 U.S. 833, 856-57, 106 S. Ct. 3245 (1986); Nixon v. Administrator of General Services, 433 U.S. 425, 443, 97 S. Ct. 2777 (1977)(Nixon II).

If one thing is clear from these separation of powers cases, it is that the lines that divide the powers of the three branches of government are neither absolute nor "neatly drawn." Clinton v. Jones, 520 U.S. at 701. "In designing the structure of our Government and dividing and allocating the sovereign power among three coequal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence." United States v. Nixon, 418 U.S. 683, 707, 94 S. Ct. 3090 (1974) (Nixon I). Conflicts and overlap are necessary by-products of the constitutional design of checks and balances among the three branches of government. Defendants argue that the authority of the President to control access to information that implicates national security is grounded in the text of Article II of the U.S. Constitution, and that separation of powers principles inherent in the Constitution mandate that the judiciary may not seek to infringe on a textually-based power. "[J]udicial review of a decision to deny someone access to classified information would interfere with the President's ability to perform 'a textually demonstrable constitutional commitment,' Baker v. Carr, 369 U.S. 186, 217 (1962), and would thus violate the separation of powers in our Constitution." Defs.' Mem. of 3/8/02 at 5; see also Defs.' Opp'n of 11/16/02 at 8. As discussed above, the textual provisions from which the President's ability to control access to information that poses a risk to national security derives are the general Executive Power, Art. II, § 1(1), and the President's role as "Commander in Chief of the Army and Navy of the United States," Art. II, § 2(1). Egan, 484 U.S. at 527.

In support of this argument, defendants invoke cases from two distinct but related lines of precedent - the political question doctrine reflected in Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691 (1962), and the separation of powers cases such as Nixon I, 418 U.S. 683. Defendants here have blurred together political question doctrine and the views of a minority of Justices of the Supreme Court on general separation of powers questions into a broad standard that would preclude review of the exercise of any Executive power authorized by the text of the Constitution.

The distinction between political question doctrine and more general separation of powers cases is important. While political question doctrine is grounded in separation of powers concerns, it reflects only one subset of those concerns. See Baker, 369 U.S. at 216. As will be explained, political question doctrine applies only when adjudication of an issue by the judiciary is somehow inappropriate because that action would somehow intrude into the exclusive sphere of the executive or legislative branches. One of the several factors to be considered by a court in determining whether an issue is a political question is whether the issue is exclusively committed by the text of the Constitution to one branch of government. Id. In contrast, a more general body of separation of powers law has grown from conflicts between any of the three branches, including the judiciary, that arise when one branch usurps or encroaches on the power of another. E.g., Clinton v. Jones, 520 U.S. 681, 117 S. Ct. 1636 (1997); Morrison v. Olsen, 487 U.S. 654, 108 S. Ct. 2597 (1988); Bowsher v. Synar, 478 U.S. 714, 106 S. Ct. 3181 (1986). In the context of these separation of powers cases, some members of the Supreme Court and the Executive Branch have advocated a very formal understanding of separation of powers that invokes some language of the political question doctrine. The argument has been made that the Constitution is necessarily violated any time one branch infringes any power or duty that finds its authority in a textually enumerated power in the Constitution. See Public Citizen v. Dept of Justice, 491 U.S. 440, 486, 109 S. Ct. 2558 (1989) (Kennedy, J, concurring); Morrison v. Olsen, 487 U.S. 654, 711 108 S. Ct. 2597 (1988) (Scalia, J., dissenting); Defs.' Mem. of 3/8/02 at 5; Defs.' Opp'n of 11/16/02 at 8; see also Defendants' Motions to Dismiss filed on October 17, 2001, March 8, 2002, and April 5, 2002, in Judicial Watch Inc v. National Energy Policy Development Group, Civ. No. 01-1530 (EGS) (D.D.C), and Sierra Club v. Cheney, Civ. No. 01-1530 (EGS)(D.D.C.).

This Court will first explain why defendants' denial of access does not constitute a political question as defined by the Supreme Court. Second, this Court will explain why any infringement of a textually-authorized power does not necessarily violate separation of powers principles, and why judicial review of the government's action here does not impermissibly intrude on the Executive's constitutional authority.

1. Political Question Doctrine

Defendants initially attempted to reap the benefits of the political question doctrine without doing the work to show why it should apply. In their briefs, defendants twice cited Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691 (1962), for the proposition that "judicial review [is] precluded where there is 'a textually demonstrable constitutional commitment of the issue to a coordinate political department.'" Defs.' Opp'n of 11/16/01 at 8; Defs.' Mem. of 3/8/02 at 5. Beyond these citations to Baker v. Carr, at no time did defendants expressly argue that the political question doctrine should apply here, nor did they apply the standards of that doctrine to the facts of this case. Only in response to this Court's Order of April 16, 2002 requesting clarification on this point, did defendants finally explain that indeed they do believe this case presents a political question. Defs.' Supp. Mem. of 4/19/02 at 1 ("[T]he question of who may have access to information bearing on national security could properly be characterized as a non-justiciable 'political question' as that term has been developed and defined by the Supreme Court."

Thus, relying on Baker, defendants argue that the denial of access to classified information by the Executive branch is non-justiciable. Defs.' Supp. Mem. of 4/19/02 at 1-4. In Baker, the Supreme Court gave a long and detailed exposition of the then-existing political question cases and attempted to cull from those cases some general justiciability principles. 369 U.S. at 217. The Court noted that political question cases arise in various formulations, and that "each has one or more elements which identify it as essentially a function of the separation of powers." Id. The Court then identified the following elements:

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Id.

The Court in Baker did not conclude that the existence of a particular type of case or formulation of the above elements necessarily precluded judicial review. Id. Rather, the Court concluded, "[t]he cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing." Id. The Court later explained that these six elements or ...


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