Opinion for the Court filed by Circuit Judge WILKEY.
WILKEY, Circuit Judge:
Plaintiff Morton H. Halperin appeals from the district court's denial of his Freedom of Information Act (FOIA) suit for access to Central Intelligence Agency (CIA) documents detailing legal bills and fee agreements with private attorneys retained by the Agency. The district court granted summary judgment to the CIA, finding the requested documents to be specifically exempted from FOIA disclosure by two statutes, and holding that plaintiff lacked standing to challenge the constitutionality of those statutes.
I. FACTS AND PROCEDURAL BACKGROUND
In 1976 plaintiff Halperin made a request to the CIA for attorney retainer agreements, fee agreements, bills and statements, and related correspondence between the CIA and any attorneys or law firms retained by the CIA to perform legal services for the Agency or its employees since 17 June 1972. Plaintiff also sought access to Agency files for the purpose of locating and inspecting the requested materials.
The CIA released those documents that concerned legal services rendered on an unclassified basis, but withheld documents pertaining to names of attorneys and details of legal services connected with covert or classified activities, except to release its standard contract used in retaining attorneys for classified CIA activities. In support of this action the CIA cited Exemption 1 of the FOIA for classified national defense and foreign policy documents, and Exemption 3 for documents specifically exempted by statute.
The district court rested its summary judgment decision on Exemption 3 and found it unnecessary to decide the applicability of Exemption 1. Judge Oliver Gasch found that section 102(d)(3) of the National Security Act, 50 U.S.C. § 403(d)(3) (1976), exempted all the withheld documents through its protection of intelligence sources and methods from unauthorized disclosure. As an additional ground of decision under Exemption 3, the court found information about legal fees and similar agency expenditures in the nature of salaries to be specifically exempted by section 6 of the Central Intelligence Agency Act, 50 U.S.C. § 403g (1976).
Plaintiff further claimed that the application of these statutes under Exemption 3 violates Article I, Section 9, Clause 7 of the United States Constitution, which requires inter alia a "statement and account" of public expenditures. In response to this argument Judge Gasch noted the Supreme Court's rejection of taxpayer standing to raise the same constitutional challenge to 50 U.S.C. § 403g in the case of United States v. Richardson.
II. APPLICATION OF FOIA EXEMPTION 3
In reviewing the district court's decision, we first look at whether the court properly applied the statutes cited by the CIA as grounds for invoking FOIA Exemption 3. This exemption protects from disclosure those matters that are "specifically exempted from disclosure by statute," provided that such statute "(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld . . .."
The district court properly applied a standard exempting under 50 U.S.C. § 403(d)(3) those documents that the Agency demonstrates "can reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods."
Concerning the disclosure of names of attorneys, Deputy Director Blake testified at a deposition that each attorney connected with covert CIA activities and implicated by plaintiff's FOIA request was an intelligence method within the meaning of section 403(d)(3), and that identification of such attorneys could reasonably be expected to lead to the disclosure of other intelligence sources and methods.
In reviewing this decision of the district court, we note initially that Congress has indicated that courts should give "substantial
If the agency's statements meet this standard, the court is not to conduct a detailed inquiry to decide whether it agrees with the agency's opinions; to do so would violate the principle of affording substantial weight to the expert opinion of the agency.
Appellant has presented no evidence to contradict the Agency or to show Agency bad faith. On appeal appellant rests on an argument that the Agency's explanations are conclusory, speculative, and insufficient to carry the Agency's burden of proof under a de novo standard of review in the district court.
First, the CIA statements show that the disclosure of the identity of an attorney doing work for the CIA might expose him to adverse action from hostile powers. Attorneys performing services connected to CIA activities in foreign countries of course face the harshest risk from exposure of their activities, as the CIA affidavits in this case explain.
Finally, as Deputy Director Blake stated in his affidavit, the "primary reason for withholding attorney's identities who are agents of the CIA in intelligence activities is that such disclosure will tend to reveal details of those activities."
The functions endangered by such disclosures include legal name changes for defectors, the creation of commercial entities, acquisitions of real estate, and settlements of affairs of deceased CIA operatives overseas.
Appellant further contends that the CIA's projection of potential harm is "pure speculation," and that the CIA is merely "hypothesizing a possible way in which intelligence methods might be revealed."
In the present case, a stricter standard for the showing of potential harm could very seldom be satisfied. As Deputy Director Blake stated, when a hostile intelligence service is properly doing its job it can carry out various counter-intelligence operations against covert CIA operations, "without drawing attention to itself, and we have no way of knowing."
To summarize our conclusion on the issue of exemption for names of CIA-retained attorneys, we find that the CIA has submitted reasonably detailed, nonconclusory statements showing the applicability of section 403(d)(3), that these statements are plausible on their face, and that the record contains no contrary evidence or evidence of Agency bad faith. Once substantial weight is given to these statements, there remain no substantial and material facts in dispute. The district court's grant of summary judgment is therefore entirely appropriate on the issue of disclosing names of attorneys.
On the issue of legal fees, the district court found nondisclosure to be justified by both section 403(d)(3) and section 403g of title 50. Based on CIA statements, the court concluded that disclosure of legal fees could reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods under section 403(d)(3), because trained foreign personnel could gain useful insights from such information.
On review we apply the same standards described above for the issue of attorney names. Appellant has not offered evidence to contradict the Agency or to show Agency bad faith. The issue is whether the Agency's statements contain reasonable specificity of detail to support the district court's application of section 403(d)(3).
The Agency's general rationale for refusing to disclose rates and total fees paid to attorneys is that such information could give leads to information about covert activities that constitute intelligence methods. For example, if a large legal bill is incurred in a covert operation, a trained intelligence analyst could reason from the size of the legal bill to the size and nature of the operation.
The district court also found legal fees to be protected from FOIA disclosure by section 403g of Title 50. This section, quoted above,
Concerning the first of these contentions, it is true that the CIA's standard retainer agreement defines the status of a retained attorney as "independent contractor" and disclaims any employee-employer relationship.
Section 403g itself contains language indicating Congress's intent. Congress enacted the section to promote "the interests of security of the foreign intelligence activities of the United States," and to further the protection of "intelligence sources and methods from unauthorized disclosure ...."
Only by recognizing such personnel as "employed by the Agency" within the language of section 403g can we give reasonable effect to the congressional intent in that section to protect the security of foreign intelligence activities and to further the protection of intelligence sources and methods. The further congressional intent to protect "the confidential nature of the Agency's functions"
These same expressions of congressional intent preclude an interpretation of the term "salaries" that would include only payments to regularly employed CIA staff personnel. Payments to clandestine temporarily affiliated personnel are at least as, probably more, likely to reveal intelligence sources and methods as are payments to CIA staff. To give section 403g the scope Congress evidently intended, we must include as "salaries" any payments made in compensation for services performed by personnel employed by the Agency.
In light of express congressional intent, we hold that such payments to CIA-retained attorneys are in the nature of salaries to personnel employed by the CIA, and are therefore within the listing of specific information protected from disclosure under section 403g. The requested information about legal fees is thus within the narrow interpretation of section 403g described in this court's previous opinions.
We therefore affirm the district court's exemption of legal fees under both section 403g and section 403(d)(3) of Title 50. Summary judgment was appropriate under these circumstances because, giving substantial
Since the requested documents were properly found to be within the provisions of two Exemption 3 statutes, appellant can prevail only if those statutes are held unconstitutional. Appellant claims that the statutes, insofar as they prevent disclosure of information about CIA expenditures, violate Article 1, Section 9, Clause 7 of the United States Constitution (hereinafter "Clause 7" or "Statement and Account Clause"), which provides: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time."
For appellant to challenge the CIA's Exemption 3 statutes on constitutional grounds, he must first show that he has standing to raise this issue. Unfortunately for appellant, the Supreme Court decided a similar question of standing in United States v. Richardson.
Appellant attempts to distinguish Richardson on grounds that he has standing under the FOIA, while Richardson claimed standing only as a taxpayer. The merit of this distinction depends on the breadth the Supreme Court intended for its Richardson holding. We find that the language of Richardson indicates that the Supreme Court intended a holding broad enough to cover all challenges to the CIA Act under the Statement and Account Clause, whether by a mere taxpayer or by a FOIA plaintiff.
The key fact in Richardson was that the injury alleged by plaintiff was undifferentiated and common to all members of the public.
That the Supreme Court intended a holding broad enough to cover the present case is further suggested by the Court's willingness to accept the prospect that no one would ever have standing to challenge CIA fiscal secrecy. The opinion of the Court observed that "the absence of any particular individual or class to litigate these claims gives support to the argument that the subject matter is committed to the surveillance of Congress, and ultimately to the political process."
We recognize that it can be reasonably argued that the FOIA creates a new situation in which a plaintiff such as Halperin or Richardson can now claim standing not merely as a taxpayer, but as a person who has suffered concrete injury in the denial of a statutorily authorized FOIA request for CIA budget information. But the facts as well as the reasoning of the Richardson case convince us that this precedent precludes standing for FOIA plaintiff Halperin. The FOIA is not a new factor added since Richardson
For a FOIA plaintiff as well as a taxpayer, the constitutional objection to the CIA's fiscal secrecy is shared in common with all members of the public, and under the logic of Richardson this factor bars standing.
Two district courts have reached the same conclusion, holding that CIA budget secrecy statutes cannot be challenged on constitutional grounds by FOIA plaintiffs, albeit without elaborating their reasoning. One of these cases arose soon after the Supreme Court's Richardson decision, when plaintiff Richardson filed a FOIA complaint against the CIA and the Treasury Department, once more seeking access to CIA financial records. Judge Gourley of the
The second district court case followed nearly identical lines, with a FOIA suit filed by the same Halperin who appeals now. Judge John Lewis Smith of the D.C. District Court found the requested CIA budget data to be within Exemption 3, and did not comment on the constitutionality of the exempting statutes except by implication in a "see also" cite to United States v. Richardson.
Based on the reasoning of Richardson and the example of these two district court decisions, we affirm the district court's holding here that plaintiff lacks standing to challenge the constitutionality of the Exemption 3 statutes that ensure secrecy for CIA fiscal data. In applying the logical implications of the Richardson decision to this case, we acknowledge that the majority of the Supreme Court did not expressly consider in that case whether a plaintiff in the position of Richardson or Halperin might have standing specifically under the FOIA. Especially in light of the narrow 5-4 margin of decision in Richardson, we do not overlook the possibility that the Supreme Court could narrow the Richardson holding so as not to bar standing for a FOIA plaintiff to challenge the constitutionality of the exempting statutes.
With this possibility in mind, and considering that judicial economy is best served by our resolving all relevant issues at this stage, we proceed to consider the merits of plaintiff's constitutional claim as an equal alternative ground of our decision. Although the district court did not address this issue, we decline to remand for further argument and fact-finding at the trial court level, since the issue is purely one of law and the relevant considerations have been substantially briefed here by both parties.
IV. CONSTITUTIONALITY AND JUSTICIABILITY OF STATUTORY SECRECY FOR CIA EXPENDITURES
Appellant claims that sections 403(d)(3) and 403g of Title 50 are unconstitutional insofar as they authorize the withholding of CIA expense data approved by the district court in this case.
The Statement and Account Clause was first proposed in the final week of the Constitutional
The debate surrounding the adoption of Madison's amendment proves important for our inquiry. Farrand gives a brief account of the debate at the Convention, taken from Madison's notes. Madison thought that the substitution of "from time to time" for "annually" would ensure frequent publication and "leave enough to the discretion of the Legislature."
The rational behind Madison's amendment came more fully to light in the debate in the Virginia ratifying convention. On 12 June 1788 Madison stated that under the Constitution as proposed, congressional proceedings were to be "occasionally published," and that this requirement included all receipts and expenditures of public money.
Any ambiguity in Madison's statement is removed, moreover, by a more lengthy debate that occurred five days later on 17 June 1788 between Madison and George Mason. Arguing against Madison's "from time to time" provision, Mason criticized it as too loose an expression. He then summarized the arguments made by proponents of the provision:
Mason's statement clarifies several points concerning the Framers' intent. First, it appears that Madison's comment on governmental discretion to maintain the secrecy of some expenditures, far from being an isolated statement, was representative of his fellow proponents of the "from time to time" provision. Second, as to what items might legitimately require secrecy, the debates contain prominent mention of military operations and foreign negotiations, both areas closely related to the matters over which the CIA today exercises responsibility. Finally, we learn that opponents of the "from time to time" provision, exemplified
In reply to Mason's argument, Madison did not pursue the point on the need for secrecy, but argued that publication from time to time would provide more satisfactory and fuller reports to the public and would be of sufficient frequency. He added that he believed "this provision went farther than the constitution of any state in the union, or perhaps in the world."
In addition to the statements of Madison and Mason, we find only one other statement from the Virginia ratifying convention expressing a view on the secret expenditure issue. This is a statement of Patrick Henry on 15 June 1788, apparently expressing a fear of the effect of the "from time to time" provision: "By that paper the national wealth is to be disposed of under the veil of secrecy; for the publication from time to time will amount to nothing, and they may conceal what they may think requires secrecy. How different it is in your own government!"
Viewed as a whole, the debates in the Constitutional Convention and the Virginia ratifying convention convey a very strong impression that the Framers of the Statement and Account Clause intended it to allow discretion to Congress and the President
The direct evidence of the intent of the Framers, then, indicates that the Statement and Account Clause does not require disclosure of such expenditures as appellant requests in the present case. Though we would be confident in resting on this evidence alone, we find yet further confirmation in the historical evidence of government practices with regard to disclosure
Our nation's earliest intelligence activities were carried out by the Committee of Secret Correspondence of the Continental Congress. The Continental Congress created the Committee on 29 November 1775 to "correspond with our friends in Great Britain, Ireland and other parts of the world," and Congress resolved to provide for expenses incurred by the Committee in sending "agents" for this purpose.
The Committee exercised broad discretionary power to conduct intelligence activities independent of the Continental Congress and to safeguard the secrecy of matters pertaining to its agents, though Congress asserted greater direct control following the Declaration of Independence.
The importance of total secrecy in intelligence matters was appreciated in this era at the highest levels. In a letter of 26 July 1777 issuing orders for an intelligence mission, General Washington wrote to Colonel Elias Dayton: "The necessity of procuring good Intelligence, is apparent and need not be further urged. All that remains for me to add is, that you keep the whole matter as secret as possible. For upon secrecy, success depends in most Enterprises of the kind, and for want of it, they are generally defeated ...."
As commander-in-chief of the colonial armies, Washington made full provision for intelligence activities and for proper funding. The details of Washington's planning in this regard are highlighted by a letter to Washington from financier Robert Morris, member of the Committee of Secret Correspondence, dated 21 January 1783, in which Morris stated that
It is significant that this letter indicates first, the provision of a cash account before the particular necessities could be specified, and second a practice of drawing the funds in favor of Washington's family, apparently to conceal the ultimate recipient of those funds. Rather than viewing such arrangements as devious or criminal, it is clear that our highest officials in the War for Independence viewed them as entirely proper and moreover essential to the success of their enterprise.
When a new governmental structure came into operation in 1789 under the Constitution, secret funding for foreign intelligence activities quickly became institutionalized in the form of a "contingent fund" or "secret service fund" at the disposal of the President. The initial impetus for this fund can be found in President Washington's address to both Houses of Congress on 8 January 1790, the precursor to the "State of the Union" message, in which he requested "a competent fund designated for defraying the expenses incident to the conduct of our foreign affairs."
Three years later Congress re-enacted the statute, with altered language that permitted the President to make secret expenditures without specification, by making a certificate or having the Secretary of State make a certificate for the amount of the expenditure, such certificate to be deemed a "sufficient voucher" for the sum or sums expended.
In 1811 Madison himself made use of a special secret funding provision from Congress for contingency plans to take possession of parts of Spanish Florida. In response to a confidential message from President Madison, Congress passed a secret act appropriating $100,000 for such expenses as the President might deem necessary for obtaining possession.
The establishment of these secret funding practices so soon after the Constitutional Convention indicates a contemporaneous understanding that the Framers of Clause 7 did not intend it to require disclosure of expenditures for secret military and foreign diplomacy matters. It is difficult to imagine stronger contemporaneous evidence of the Framers' intent, when one considers that the contingent fund was initially requested by President Washington, who presided over the Constitutional Convention in 1787, and that a further secret funding measure was enacted under Madison, who in his earlier role as "Father of the Constitution"
The contingent fund remained in continuous use by the President throughout the nineteenth century and up to the creation
A statement of President Tyler in 1844 further clarifies the common understanding during the first half of the nineteenth century concerning presidential use and congressional authorization of the contingent fund. Upon a Senate inquiry concerning the employment of a Mr. Duff Green to acquire information in England related to the matter of the Oregon Territory, President Tyler replied to the Senate:
President Polk, taking an even firmer stance based on this tradition than did Tyler, refused to accede to the request of the House of Representatives for disclosure of expenditures from the contingent fund. On 20 April 1846 he gave his reply as follows:
These statements of Presidents Polk and Tyler, far from being exceptional or abusive, appear to typify the attitude of our government toward secret expenditures for
Our survey of historical evidence persuades us that secrecy of intelligence efforts, including expenditures, was a practice of General Washington during the War for Independence; that the Framers, by adopting the Statement and Account Clause in Madison's amended form, intended Congress and the President to have discretion to maintain the secrecy of intelligence expenditures; that from the time of the first Congress our government in fact provided for such secrecy pursuant to statute; and that the contingency fund for secret expenditures continued in use through the next century for purposes of foreign intelligence. Those who voiced criticism toward the practice of secret expenditures, such as Mason and Henry, prove to be a dissenting minority whose opinions contrast clearly with the prevailing view of the Framers and also with the prevailing practice of our government during the late eighteenth and nineteenth centuries.
In light of this historical evidence, we can see that when Congress enacted the Central Intelligence Agency Act of 1949,
Along with secrecy for the entire CIA budget, Congress has provided for secrecy of individual CIA expenditure items by means of statutes, including those at issue here, sections 403(d)(3) and 403g of Title 50. Section 8(b) of the CIA Act protects the secrecy of expenditures by means of the following provision:
This provision is similar to secrecy provisions from our nation's early history, and to
The same correspondence with traditional practice is seen in sections 403(d)(3) and 403g of Title 50. Both sections protect secrecy for expenditures related to foreign intelligence activities, of the sort for which Presidents Tyler and Polk demanded secrecy, and for which James Madison and a majority of the Framers provided discretionary secrecy in the "from time to time" amendment to the Statement and Account Clause.
We must conclude from the constitutional debates, from the apparent contemporaneous understanding of what the Framers of Clause 7 intended, and from the continuous practice dating from the early years of the Republic, that the Statement and Account Clause does not create a judicially enforceable standard for the required disclosure of expenditures for intelligence activities. On the contrary, it appears that the Framers of this clause intended Congress and the Executive to have discretion to decide whether, when, and in what detail intelligence expenditures should be disclosed to the public. Since the decision to disclose materials of this nature is committed to a coordinate branch of the government, it is a nonjusticiable political question.
This conclusion has already been suggested by the Supreme Court in dictum to its Richardson opinion. As to the intent of the Framers, the Court observed that the genesis of Clause 7 "suggests that it was intended to permit some degree of secrecy of governmental operations."
In a separate case our court has similarly adopted the view that Congress has full discretion to define the appropriations process and concomitant reporting requirements.
That Congress has discretion to maintain secrecy for the intelligence expenditures involved in the present case is further evident from the detailed and particularized nature of these expenditure items. The earliest statements and accounts of public expenditures
Moreover, in light of the CIA deposition and affidavits submitted in this case, it is clear that particular expenditure items for specific covert operations are among the most sensitive of CIA budget items; their disclosure could lead to the uncovering of covert operations themselves. The grave harm that could follow from such detailed disclosures of intelligence expenditures confirms the wisdom of the Framers of Clause 7 in endorsing the legislative discretion inherent in the "from time to time" language proposed by Madison. It is typical of their foresight and prudence that the Framers did not create a disclosure provision so inflexible that it might in the future eviscerate the secret military and diplomatic functions that are often essential to our nation's strength and survival.
In light of our analysis we must hold that Congress and the President have discretion, not reviewable by the courts, to require secrecy for expenditures of the type involved in this case. We therefore uphold the constitutional authority of Congress to protect the secrecy of the expenditures here in question by means of such statutes as sections 403(d)(3) and 403g of Title 50. We so hold as a ground additional and alternative to our holding that appellant lacks standing.
The decision before is therefore
Id. § 403g (1976).
"Although the status he rests on is that he is a taxpayer, his challenge is not addressed to the taxing and spending power, but to the statutes regulating the CIA, specifically 50 U.S.C. § 403j(b)." Id. at 175, 94 S.Ct. at 2945. In the present case, plaintiff presents a grievance as a requester under the FOIA, but this status as a FOIA requester bears no nexus to his constitutional challenge to the statutes regulating the CIA.
Federalist No. 64 (J. Cooke, ed. 1961) (emphasis in final sentence added).