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gress to issue contemporaneous instructions when transferring documents to an agency. Thus, said the CIA, the April 24th letter to the Clerk constituted conclusive evidence that all 50 documents were Congressional documents and therefore exempt from disclosure.
In his amicus brief, the Clerk reiterated the arguments put forth by the CIA and made the additional argument that releasing documents created by Congress, or created by an agency at Congress' specific request, would violate the Speech or Debate Clause of the U.S. Constitution by revealing the deliberative processes of Members of Congress.
On December 23, 1980 the circuit court issued a decision reversing the decision of the district court and remanding the case for further consideration. (Holy Spirit Association for the Unification of World Christianity v. Central Intelligence Agency, 636 F.2d 838 (D.C. Cir. 1980)] In an opinion delivered by Circuit Judge Abner Mikva, the court held that Congress had failed to express with sufficient clarity its intent to retain control over the 50 documents in question. Accordingly, the court ruled that the 50 documents were not Congressional documents and therefore were not exempt from FOIA disclosure under 5 U.S.C. $ 551(1)(A).
Turning first to the 35 documents created by Congress and sent to the CIA, the court stated that in Goland it had enumerated two factors dispositive of whether a Congressionally-generated document remained a Congressional document: the circumstances attending the document's creation and the conditions under which it was transferred to the agency. As to the first factor, Judge Mikva stated:
The hearing transcript at issue in Goland was quite obviously meant to be secret: the congressional committee met in executive session to conduct the hearing; the stenographer and typist were sworn to secrecy; and the transcript was marked "Secret.” In addition, the confidential nature of the transcript was evident-it was known to contain “discussions of basic elements of intelligence methodology, both of this country and of friendly foreign governments, as well as detailed discussions of the CIA's structure and disposition of functions." 607 F.2d at 347 (footnote
omitted). [636 F.2d at 841) “In contrast,” said the court, “the circumstances surrounding Congress' creation of the documents requested by the Church do not demonstrate any intent that they be kept secret.” (Id.) Regarding the second prong of the Goland test, the court stated that because the Clerk's letter was written after the Church's FOIA request had been made and after litigation had begun it did "not consider the [Clerk's] letter sufficient evidence that Congress forwarded the documents to the Agency only 'for a limited purpose and on condition of secrecy.' Goland, 607 F.2d at 348 n. 48.” (Id. at 842] However, the court specifically rejected the Church's contention that Congress
1 The Speech or Debate Clause of the United States Constitution provides that "for any Speech or Debate in either House (U.S. Senators and Representatives) shall not be questioned in any other place.” (art. I, § 6, cl. 1]
must give contemporaneous instructions when forwarding Congressional documents to an agency. The proper test, said the court, is whether Congress at some point made "some clear assertion of congressional control.” (Id.]
Next, the opinion addressed the issues raised by the 11 documents created by the CIA pursuant to Congressional requests. The court cautioned that in resolving these issues it would not address the question of whether agency-created records, when sent to Congress, can lose their status as agency records and become exempt from FOIA disclosure. “Instead," said the court, "we hold that, even if these CIA-created records were once congressional documents ... they subsequently lost their exemption as congressional records when Congress failed to retain control over them.” (Id. at 843] The court explained:
Again, we rely on the two-pronged Goland test. As with the congressional records analyzed above, there is no evidence surrounding the generation of these CIA-created records indicating that Congress intended that they remain secret. The conditions under which they were transferred back to the CIA are similarly ambiguous: they were merely returned to the Agency with no accompanying letter or instructions. Appellees again point to the post hoc letter from the Clerk of the House, but, for the reasons discussed above, we find that letter insufficient evidence of Congress' intent to retain control over these documents.
(Id.) The court did not address the Speech or Debate Clause arguments raised by the Clerk of the House.
On December 30, 1980, the CIA requested an extension of time within which to petition for a rehearing of the case. The court granted the motion in part, and on January 20, 1981, the CIA submitted its petition for rehearing with a suggestion for rehearing en banc.
The petition vigorously attacked the appeals court panel decision both as to 6 classified documents that had been ordered disclosed (the subject of the CIA's cross appeal) and as to the 35 Congressionally-related documents. Regarding the panel's decision on the CIA's cross appeal, the petition argued that it did not comport with the standards of responsible de novo review, is internally inconsistent, conflicts with precedent of this circuit, and creates a Constitutional conflict between the judiciary and executive." (Petition for Rehearing with Suggestion for Rehearing en banc, January 20, 1981, at 6] The petition took particular issue with the failure of the panel to accept the CIA's argument that the district court had not accorded substantial weight to the CIA's affidavits supporting the documents' nondisclosure:
The action of the district court in ordering the release of information which the Agency explained will damage national security and expose intelligence sources and methods in effect substitutes the court's judgment for that of the Agency and contradicts it. This Court's affirmance of the district court's order results in an interpretation of the
de novo review provision which is constitutionally infirm
it is constitutional. (Id. at 8] The petition further contended that the failure of the district court to explain the disclosure order or to specify any deficiencies in the CIA affidavits was wrong and was compounded by the failure of the appeals court panel to conduct its own review:
The panel's failure to conduct its own review of these 6 documents exacerbates the constitutional tension created by the district court's failure to comply with Congressional intent. The panel did not and could not find that the district court accorded substantial weight to the affidavits because the panel never considered the CIA's substantive claim that the information is properly exempt. Nor did the panel address the constitutional question inherent in the district court's order to release information determined by
the executive branch to be properly classified. (Id. at 9] Turning to the 35 Congressionally-related documents, the petition maintained that the “panel's reversal of the district court's finding that Congress intended to preserve the secrecy of the Congressionally originated documents was made on the basis of an incomplete and distorted review of the record and jeopardizes the relationship between Congress and the CIA." (Id. at 12] The petition was especially critical of the panel's failure to conduct an in camera review of the documents (as the district court had done), and asserted that the panel "misconstrued or ignored every item of evidence in the record” (Id. at 14] in concluding that Congress evidenced no intent to retain control over the records. Finally, the petition argued that:
The 35 documents not only reflect sensitive intelligence activities and sources, matters of concern to both the CIA and Congress, they also reflect legislative deliberations and functions, matters which Congress specifically has exempted from the FOIA. By holding that Congress cannot rely on its understanding of confidentiality with the CIA, the panel places in jeopardy the continued cooperation and
exchange of information between these two entities. (Id.] In an order filed on August 13, 1981, the circuit court panel denied the petition for rehearing. Senior Circuit Judge David Bazelon appended a statement in support of granting a rehearing in the CIA's cross appeal, contending that the district court should have offered some explanation for its partial rejection of cross-appellant's national security exemption claim, 5 U.S.C. $ 552(b)(1/a) (1976). See Vaughn v. Rosen, 484 F. 2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974)."
Also on August 13, 1981, the circuit court en banc, in a per curiam order, denied the suggestion for a rehearing en banc. The order noted that Circuit Judges Tamm, MacKinnon, Robb, and Wilkey would have granted the rehearing, although a majority of the court was opposed.
On August 18, 1981, the CIA filed a motion for a 30-day stay of the court's order to disclose and its mandate pending an application to the Supreme Court for a writ of certiorari. Arguing that the information ordered disclosed was “classified in the interest of national security and to protect intelligence sources and methods," the CIA contended that the "damage to national security that is likely to result from release of all these documents far outweighs any harm to the Church in not obtaining immediate access to the documents during the relatively brief period in which the Solicitor General will determine whether to seek certiorari." [Cross-Appellant's Motion for a Stay . . . , August 18, 1981, at 1-2]
On August 20, 1981, the Church filed a response to the motion for a stay in which it stated that it did not oppose the motion on the condition that a petition for a writ of certiorari was filed on or before September 17, 1981.
On September 8, 1981, the appeals court granted the CIA's motion for a stay until September 18. A subsequent request by the CIA-filed on September 11-to have the court extend its stay through October 18 was denied in an order filed on October 13. The court's mandate issued three days later.
The CIA next turned to the Supreme Court, and, on October 21, 1981, the Solicitor General, on the agency's behalf, filed an application for a stay of the judgments of the district court and the court of appeals pending the timely filing of a petition for a writ of certiorari. The Solicitor General argued that if the stay was not granted "the government will be compelled either to release sensitive classified information concerning intelligence sources and methods, thereby mooting this controversy and (in the government's view) harming the nation's foreign policy and security, or to resist disclosure and risk contempt” in order to preserve the opportunity for further review by the Supreme Court. [Application For a Stay Pending Petition For a Writ . . ., October 21, 1981, at 3) According to the Solicitor General, the stay should be granted because: (1) it was probable that the Court would consider the issue sufficiently meritorious to grant review and there was a strong likelihood that it would reverse the judgement of the lower court; and (2) the irreparable injury that would occur in the absence of a stay outweighed the probability of harm to others if a stay was issued.
On October 23, 1981, Chief Justice Warren Burger signed an emergency order granting the stay pending receipt of a response from the Church.
On October 27, 1981, the Church filed its response to the application for a stay, stating that it did not oppose the grant as long as a petition for certiorari was filed by November 12. The response noted, however, that the Church did not agree with the CIA's assessment of the probabilities that the petition would be granted and the court of appeals decision reversed.
On November 2, 1981, Chief Justice Burger granted a request to extend the time for filing a petition for certiorari until December 11.
On November 17, 1981, the Chief Justice issued another order granting the stay-essentially extending the October 23rd order
blocking disclosure. The order directed that if a petition for a writ of certiorari was filed and granted, the stay was to continue in effect pending the judgment of the Court.
On December 11, 1981, the CIA filed its petition for a writ of cer. tiorari in the Supreme Court, seeking review only of the lower courts' orders to disclose the six classified documents which had been the subject of the agency's cross-appeal in the circuit court. According to the petition, the questions presented for review were:
1. Whether the courts below properly rejected the Central Intelligence Agency's claim that portions of documents that could lead a knowledgeable reader to identify confidential intelligence sources and would reveal confidential information obtained as a consequence of a liaison arrangement with a foreign intelligence or security service are exempt from disclosure under Exemptions 1 and 3 of the Freedom of Information Act, 5 U.S.C. 552(b) (1) and (3).
2. Whether the district court complied with the requirements of the FOIA and showed appropriate deference for the constitutional responsibilities of the Executive Branch in matters of national security and foreign policy when it (a) refused to sustain the CIA's withholding of the documents on the basis of the representations in the public affidavit and document disposition index regarding the need to protect intelligence sources and a liaison relationship with a foreign intelligence or security service, and (b) rejected the CIA's offer to present in camera testimony to explain more fully the facts and justification for the withholding. [Petition for a Writ of Čertiorari . . . , December
11, 1981, at 1] The CIA argued that review was warranted for several reasons. First, the agency maintained, the lower court decisions, by ordering the release of classified national security materials for the first time under the FOIA, not only “jeopardize[d] the particular intelligence sources and liaison relationship involved; it substantially undermine(d) the ability of the CIA to assure the confidentiality of its intelligence services generally (Id. at 11] Second, the agency contended, the lower court decisions ran counter to Congress' recognition of the compelling need for maintaining the confidentiality of intelligence sources, as evidenced by the passage of legislation providing two separate exemptions from FOIA disclosure of such information. (See exemptions 1 and 3 of the FOIA, 5 U.S.C. $ 552(b) (1) and (3), and 50 U.S.C. $ 403(d)(3).) Third, the CIA argued, its public affidavits and document disposition indices were "more than sufficient" to sustain the withholding of the documents in question and the lower courts should not be permitted to substitute their judgment for that of the CIA on questions of national security. Moreover, the agency asserted, even if the district court felt the documents (and its own in camera review) were insufficient to sustain the exemption, “it was obligated to afford the CIA an opportunity to make an in camera submission to support its determination to withhold the documents before the court ordered the release of the information." (Id. at 12]