LOCATION: Canadian County Courthouse
DOCKET NO.: 83-1075
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit
CITATION: 471 US 159 (1985)
ARGUED: Dec 04, 1984
DECIDED: Apr 16, 1985
Paul Alan Levy - on behalf of respondents in No. 83-1075 and petitioners in No. 83-1249
Richard K. Willard - on behalf of petitioners in No. 83-1075 and respondents in 83-1249
Facts of the case
Media for Central Intelligence Agency v. Sims
Audio Transcription for Oral Argument - December 04, 1984 in Central Intelligence Agency v. Sims
Warren E. Burger:
Mr. Williard, I think you may proceed whenever you are ready.
Richard K. Willard:
Mr. Chief Justice, and may it please the Court:
This case presents the question of whether scientific researchers utilized by CIA during the 1950s and '60s in Project MKULTRA are intelligence sources within the meaning of Section 403(d)(3) of the National Security Act of 1947, and thus exempt from disclosure under Exemption 3 of the Freedom of Information Act.
I am going to argue today, first, that the Court of Appeals incorrectly interpreted the National Security Act, and second, that nothing in the Freedom of Information Act supports or requires the Court of Appeals' interpretation.
Now, the Court of Appeals adopted a two-part test for deciding if a person or institution is an intelligence source under Section 403(d)(3).
The first part of the test dealt with the relevance of the information provided by the course to CIA's intelligence function, and the second part of the test dealt with the need for confidentiality of that source.
The first part of the test is not an issue here today.
The District Court found that CIA could reasonably determine that this research, referring to Project MKULTRA, was needed for its intelligence function, and the Court of Appeals affirmed, and the Respondents did not seek this Court's review of that issue.
The second part of the two-part test is the issue today.
The Court of Appeals held that an intelligence source must provide information of a kind that CIA could not reasonably expect to obtain without guaranteeing the confidentiality of those who provide it.
It is our position that this second part of the two-part test created an unwarranted and unreasonable gloss on the plain language of Section 403(d)(3).
The practical consequences of this second part of the test, especially as spelled out by the Court of Appeals in its second opinion in Sims, is to exclude three categories of sources which we believe Congress clearly intended to be covered under the 1947 Act.
The first excluded category are open sources, periodicals, radio broadcasts, public speeches, and the 1947 Act's legislative history shows Congress was informed that the bulk if not the majority of our intelligence would be developed from precisely those kinds of open sources.
The second category excluded by the Court of Appeals' definition are unwitting sources, that is, sources that don't know they are providing information to CIA when they provide information to someone they think may be a trusted confidant or perhaps even a fellow conspirator in their activities.
Again, it is hard to see how these sources can be protected under the Court of Appeals definition.
Since they don't even know they are being sources, it is hard to see how they can require a pledge of confidentiality.
Finally, and perhaps most shockingly, the Court of Appeals definition excludes even sources who ask for and receive an express pledge of confidentiality from CIA if either they are, as the Court of Appeals said, unreasonably and atypically leery of cooperating with CIA, or if they are providing the type of information that CIA could have obtained readily and openly from other sources.
The harms of this narrow definition adopted by the Court of Appeals are evident.
Among other things, revealing these kinds of sources will necessarily reveal the topics of interest to CIA which it is pursuing, even if it is pursuing those topics of interest by trying to develop information from open sources.
More importantly, in many cases, the inability to preserve the confidentiality of sources will cause them to dry up.
As this Court recognized in its opinion in Snepp, providing confidentiality of intelligence sources may be vital to assuring their continued cooperation.
The point of all of this is not that the Court of Appeals was insufficiently school in the craft of intelligence to prepare the correct definition for when confidentiality of intelligence sources is necessary.
The point is that in the 1947 National Security Act, Congress assigned that responsibility to the Director of Central Intelligence and not to the courts.
It is difficult for courts to obtain evidence and make studied judgments as to when sources should or should not be kept confidential.
Courts can be abusive in the way they determine these issues, as was the District Court in the Fitzgibbon case which we cite in our briefs, where the Court decided that it could second guess the judgment of the Director of Central Intelligence as to whether events had sufficiently changed in the Dominican Republic so that sources there who were once confidential would now be proud to have been associated with CIA.
In addition, even if the courts make the right determinations as to whether sources should or should not be kept confidential, these sources may not trust that the courts will make the right decision in their cases, especially when the passage of time may cause the concerns of the intelligence source to be somewhat less appreciable, much as is the situation in this case, where many of the sources are 20 or 30 years old.
In conclusion, it is our position that Section 403(d)(3) means what it says when it says that the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure, and this plain language of the statute is totally inconsistent with the second part of the two-part test crafted by the Court of Appeals.
Further, we believe that nothing in the Freedom of Information Act charges this interpretation of the National Security Act.
Exemption 3 of the Freedom of Information Act incorporates by reference certain other statutes that provide for withholding of particular kinds of information.
Once you decide that Exemption 3 applies to a particular statute, then it is thew underlying statute and not the Freedom of Information Act that determines whether or not a particular kind of information can be withheld.