John Doe v. William J. Casey, Director, C.I.A.

BUCKLEY, Circuit Judge,

concurring in part and dissenting in part:

I concur in sections 11(B) and 11(C)(3) of the majority opinion, which hold (a) that CIA regulations provide no procedural or substantive rights beyond those granted under section 102(c) of the National Security Act of 1947, 50 U.S.C. § 403 (c) (1982); and (b) that as Doe has been accorded all the process that is his due, he has not been deprived of a liberty interest without due process of law. Nevertheless, because the majority ignores the obvious legislative intent in section 102(c) to shield the Director’s employee termination decisions from judicial review, I must dissent from the balance of the opinion.

As the majority notes, there exists a strong presumption that agency actions are reviewable. See, e.g., Block v. Community Nutrition Inst., 467 U.S. 340, 349 , 104 S.Ct. 2450, 2456 , 81 L.Ed.2d 270 (1984). Judicial review is unavailable, however,

to the extent that — (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.

Administrative Procedure Act, 5 U.S.C. § 701 (a) (1982). Disregarding Supreme Court case law and this court’s own precedent, the majority overstates both the conclusiveness of the presumption of reviewability and the difficulty of establishing the section 701(a) exceptions. Furthermore, by ignoring the plain meaning and objectives of section 102(c), the majority manages to avoid what should be the obvious conclusion that that statute both precludes judicial review within the meaning of section 701(a)(1) and commits termination decisions to the nonreviewable discretion of the Director of the CIA (“Director”) within the meaning of section 701(a)(2).

I. Statutory Preclusion

A. The Standard for Finding Preclusion

To support its holding that judicial review of a section 102(c) termination decision is not precluded by statute, the majority relies on cases such as Dunlop v. Bachowski, 421 U.S. 560, 567 , 95 S.Ct. 1851, 1857 , 44 L.Ed.2d 377 (1975), Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 , 91 S.Ct. 814, 820 , 28 L.Ed.2d 136 (1971), and Abbott Laboratories v. Gardner, 387 U.S. 136, 140 , 87 S.Ct. 1507, 1510 , 18 L.Ed.2d 681 (1967), which speak of a “strong presumption” of reviewability, overcome only by “clear and convincing evidence” of congressional intent to preclude review. Since issuing these opinions, however, the Supreme Court has made significant refinements in its preclusion analysis which, in its reliance on the older precedents, the majority has failed to apply.

In Block v. Community Nutrition Inst., 467 U.S. 340 , 104 S.Ct. 2450 , 81 L.Ed.2d 270 (1984), the Supreme Court reversed this court’s holding that an agency action was subject to judicial review. In finding judicial review unavailable, the Court articulated three refinements of its earlier analy *1526 sis. First, the Court emphasized that the presumption of reviewability is rebuttable:

The presumption favoring judicial review of administrative action is just that — a presumption. This presumption, like all presumptions used in interpreting statutes, may be overcome by ... reliable indicator[s] of congressional intent.

Id. at 349 , 104 S.Ct. at 2456 . Second, the Court indicated some permissible sources from which to infer such intent:

Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.

Id. at 345 , 104 S.Ct. at 2454 . Finally, the Court described the evidentiary standard to be applied in determining the existence of a congressional intent to preclude review:

In the context of preclusion analysis, the “clear and convincing evidence” standard is not a rigid evidentiary test but a useful remainder to courts that, where substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling.

Id. at 351 , 104 S.Ct. at 2457 . This presumption is overcome, however,

whenever the congressional intent to preclude judicial review is fairly discernible in the statutory scheme.

Id. (citations omitted).

Subsequent Supreme Court cases have reaffirmed the Block analysis. See Lindahl v. Office of Personnel Management, 470 U.S. 768 , 105 S.Ct. 1620, 1627 , 84 L.Ed.2d 674 (1985) (“[T]he ‘clear and convincing evidence’ standard has never turned on a talismanic test.” Rather, preclusion may be found in a statute’s “express language, ... the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.”); Bowen v. Michigan Academy of Family Physicians, — U.S. —, 106 S.Ct. 2133, 2137 , 90 L.Ed.2d 623 (1986).

Thus, although the Director’s termination of Doe pursuant to section 102(c) is presumptively reviewable, this presumption is rebutted if the congressional intent to preclude review is “fairly discernible” from the face of the statute, the statutory scheme, the statute’s objectives, the legislative history, or from the nature of the administrative action here involved. The demonstration of this congressional intent must be “clear and convincing,” but not in a strict evidentiary sense; rather, the presumption comes into play “where substantial doubt” about that intent exists. In essence, the teaching of Block and subsequent cases is that the courts should not be hostile to congressional preclusion of judicial review of particular administrative actions, but should conduct an objective assessment of all relevant sources in order to determine what it is that Congress in fact intended.

B. The Standard Applied By The Majority

Notwithstanding the straightforward inquiry into congressional intent espoused in Block , the majority extracts three principles from Supreme Court precedent that serve to accentuate the difficulty of establishing preclusion.

The majority first requires that congressional intent to preclude judicial review be established by “clear and convincing evidence.” (Majority Opinion at 1514). While conceding Block’s holding that this is “not a rigid evidentiary test,” the majority nevertheless manages to add a little starch to that case’s holding. The majority cites Block in support of the proposition that the congressional intent to preclude review must “at the very least, ... be ‘fairly discernible’ in the detail of the legislative scheme.” Id. at 1515 (emphasis added). In fact, in Block , the Supreme Court went no further than to hold that a sufficiently “clear and convincing” showing is made “whenever the congressional intent to preclude judicial review is ‘fairly discernible in the statutory scheme,’ ” 467 U.S. at 351 , 104 S.Ct. at 2457 (emphasis added).

*1527 The majority’s second principle states that “when the statute at issue specifies a standard that at least purports to limit agency discretion ..., this is highly probative evidence that Congress did not intend to preclude judicial review.” (Majority Opinion at 1515). In support of this proposition, the majority cites Southern Ry. v. Seaboard Allied Milling Corp., 442 U.S. 444, 455-56 , 94 S.Ct. 2388 , 2394-95, 60 L.Ed.2d 1017 (1979), in which the Supreme Court held an Interstate Commerce Commission decision nonreviewable, relying in part on the fact that the statute authorizing the decision “is silent on what factors should guide the Commission’s decision.” The problem here is that while a lack of statutory standards may well support an inference of nonreviewability, this hardly supports the inverse proposition that the presence of standards implies reviewability. Not all standards, after all, demand, or are capable of, judicial application.

As its third principle, the majority asserts that congressional intent to preclude judicial review may be inferred from the statutory scheme “only in a very limited category of cases involving uniquely complex or otherwise delicately balanced statutory schemes.” (Majority Opinion at 1515). While it is true that in Block the Supreme Court relied on the details of the complex statutory scheme to infer a congressional intent to preclude review, 467 U.S. at 349 , 104 S.Ct. at 2456 , the Court has never intimated that a simpler statutory scheme would not support the same inference. In any case, the majority’s insistence on complexity or delicacy of balance simply obscures the fact that the statutory scheme is but one of several elements identified by the Court in Block from which congressional intent might be inferred.

Having defined its own restrictive standards for finding statutory preclusion, the majority has little difficulty in ignoring the clear indications that Congress intended section 102(c) decisions to be nonreviewable.

C. Indicators of Congressional Intent to Preclude Review Of Section 102(c) Termination Decisions

1. The Statutory Language

On its face, section 102(c) clearly indicates a congressional intent to prohibit judicial review. The relevant portion of section 102(c) provides:

Notwithstanding the provisions of section 7501 of title 5, or the provisions of any other law, the Director of Central Intelligence may, in his discretion, terminate the employment of any officer or employee of the Agency whenever he shall deem such termination necessary or advisable in the interests of the United States.

As demonstrated below, the “notwithstanding” clause provides “clear and convincing” evidence of the congressional intention to prohibit judicial review.

Section 102(c) was enacted at a time when federal personnel actions were not subject to judicial review. United States v. Testan, 424 U.S. 392, 406 , 96 S.Ct. 948, 957 , 47 L.Ed.2d 114 (1976). Congress, however, had adopted the Lloyd-LaPollette Act granting federal employees limited employment and procedural protections. 5 U.S.C. § 652 (1964), ch. 389, § 6, 37 Stat. 539 , 555 (1912); recodified as 5 U.S.C. § 7501 , Act of Sept. 6, 1966, Pub.L. No. 89-554, 80 Stat. 378, 527-28 (1966); subsequently replaced by 5 U.S.C. § 7501 et seq. (1980), Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111, 1134 et seq. (1978). Under that Act, a federal employee could be removed only “for such cause as will promote the efficiency of [the] service,” and he was granted the right to receive written notice of any charges against him, to file a written answer to those charges, and to receive a prompt written decision in response to that answer. Any further procedures, such as examination of witnesses, trial, or hearing were available only at the discretion of the agency official seeking the employee’s removal. With the adoption of section 102(c), CIA employees were stripped of even these limited rights and became subject to summary termination *1528 without a statement of reasons or opportunity to protest.

The majority nevertheless ignores section 102(c)’s elimination of the procedural protections of the Lloyd-LaFollette Act and focuses instead on the substantive provision prohibiting the dismissal of an employee “except for such cause as will promote the efficiency of the service.” As a result, the majority is able to dismiss the elimination of Lloyd-LaFollette protections as “merely replacing] one set of standards— the more rigorous efficiency standards ... —with a new, more relaxed standard: that the termination be ‘necessary or advisable in the interests of the United States.’ ” (Majority Opinion at 1516). Thus, argues the majority, the resulting expansion in the Director’s discretion does not imply a preclusion of judicial review. Id.

The essential flaw in the majority’s reasoning is its failure to recognize that the Director’s termination decisions are insulated by section 102(c) from the procedural as well as the substantive provisions of the Lloyd-LaFollette Act. Thus, it finds itself in the untenable position of insisting that terminated CIA employees retain the right to judicial review even though Congress has stripped them of the minimal procedural rights of a statement of charges and a chance to respond.

The majority’s holding that section 102(c) does not preclude judicial review relies significantly on its conclusion that the section “provides a standard” that constrains the Director’s discretion. As discussed in section 11(A) below, the majority arrives at this conclusion by misreading section 102(c) to require that the discharge of a particular employee actually be in the national interest. All that the statute prescribes, however, is that the Director deem it to be. Thus, the majority fails to draw the necessary distinction between judicial confirmation of the Director’s purpose in terminating an employee (he deems it in the national interest) and a review of the correctness of the belief on which he acts. While a court may satisfy itself as to the former, it may not inquire into the latter. This clear distinction is underscored in Service v. Dulles, 235 F.2d 215 (D.C.Cir.1956), which deals with Department of State Appropriations Act, 1952, ch. 533, § 103, 65 Stat. 575 , 581 (1951) (expired at the close of fiscal year 1952), a statute essentially identical to section 102(c), to wit:

Notwithstanding the provisions of [the Lloyd-LaFollette Act], or the provisions of any other law, the Secretary of State may, in his absolute discretion, ... terminate the employment of any officer or employee of the Department of State or of the Foreign Service of the United States whenever he shall deem such termination necessary or advisable in the interests of the United States.

Id. at 216 n. 1. In construing the statute, this court cited with approval the following excerpt from the district court’s “well-expressed” opinion:

This Court cannot, of course, review the correctness of the former Secretary of State’s determination. Its function is limited to determining whether any procedural requirement of the statute was violated in plaintiff’s discharge.

Under [§ 103 of the Appropriations Act] there was one procedural requirement: that the Secretary of State must determine in his discretion that the termination of plaintiff’s employment was necessary or advisable in the interests of the United States.

Id. at 218. The court found that this requirement had been satisfied, as evidenced by an affidavit by the Secretary of State stating he had discharged the employee in the exercise of the authority vested in him, inter alia, by section 103 of Public Law 188, and it affirmed the lower court’s grant of summary judgment for the government.

The Supreme Court subsequently reversed, Service v. Dulles, 354 U.S. 363, 388 , 77 S.Ct. 1152, 1165 , 1 L.Ed.2d 1403 (1956), but only because the Secretary had not complied with his own departmental regulations which imposed more exacting procedures for termination than were required by statute. The Court specifically noted that under the statute “the Secretary *1529 was not obligated to impose upon himself these more rigorous substantive and procedural standards.” 354 U.S. at 388 , 77 S.Ct. at 1165 . Thus, this court’s holding in Service clearly applies to section 102(c), and dictates a finding of statutory preclusion as to any inquiry beyond the Director’s satisfaction of the “procedural requirement” that he deems the termination to be in the national interest.

2. Further Indications of Congressional Intent to Preclude Review

In Block , the Supreme Court held that the congressional intent to preclude judicial review within the meaning of section 701(a)(1) could be ascertained not only from the express language of the statute, but also from the statutory objectives and the nature of the administrative action involved. 467 U.S. at 345 , 104 S.Ct. at 2454 . In the instant case, these factors clearly confirm a congressional intent to preclude review.

Section 102(c) authorizes the Director to terminate an employee whenever he deems such action in the interests of the United States, unencumbered by the requirements of the Lloyd-LaFollette Act. Absent this authorization, the Director could only terminate an employee “for such cause as will promote the efficiency of [the] service,” and would be required to give such an employee a written copy of the charges against him and an opportunity to answer those charges. The obvious purpose of section 102(c) is to allow the Director to terminate employees unimpeded by these substantive and procedural requirements. Subjecting the Director’s decisions to judicial scrutiny flies in the face of this clear legislative purpose.

This conclusion is supported by the nature of the administrative action involved. The summary dismissal authority granted to the Director by the National Security Act of 1947 is a natural and necessary function of the extraordinary sensitivity that surrounds every aspect of our national security operations. The abiding concern for the ability of sensitive agencies to maintain absolute control over personnel is reflected in a 1964 Senate committee report commenting on the proposed grant to the Secretary of Defense of “summary power ... to terminate the employment of any employee” of the National Security Agency upon a determination that the exercise of this power was “in the interests of the United States.” Citing the fact that identical authority had earlier been granted the Director of the CIA, the report explained:

The responsibilities assigned to the National Security Agency are so great, and the consequences of error so devastating, that authority to deviate from [proposed procedures providing federal employees with the benefit of conventional procedural protections] should be granted to this agency.

S.Rep. No. 926, 88th Cong., 2d Sess., 2 (1964), U.S.Code Cong. & Admin.News 1964, pp. 2114, 2115. It is of course true, as the majority points out, that a Congress has no authority to interpret the meaning of statutes enacted by its predecessors. The passage I have quoted, however, sheds light on the nature of the national security concerns with which successive Congresses have been called upon to deal.

No agency is more sensitive, and few so important to our national safety, as the CIA. As the Supreme Court has pointed out, its effectiveness has been “thought by every President since Franklin D. Roosevelt to be essential to the security of the United States and — in a sense — the free world.” Snepp v. United States, 444 U.S. 507 , 512 n. 7, 100 S.Ct. 763 , 767 n. 7, 62 L.Ed.2d 704 (1980). To safeguard the agency’s effectiveness, Congress has given “the Director of Central Intelligence broad power to protect the secrecy and integrity of the intelligence process. The reasons are too obvious to call for enlarged discussion; without such protections the agency would be virtually impotent.” CIA v. Sims, 471 U.S. 159 , 105 S.Ct. 1881, 1888 , 85 L.Ed.2d 173 (1985). Judicial intrusion into the CIA’s personnel actions can threaten to expose the agency’s inner processes and compromise its integrity.

*1530 [T]he very nature of the intelligence apparatus of any country is to try to find out the concerns of others; bits and pieces of data may aid in piecing together bits of other information even when the individual piece is not of obvious importance in itself____ [W]hat may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context____ It is conceivable, that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency____ And it is the responsibility of the Director of Central Intelligence, not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the Agency’s intelligence gathering process.

Id. at 1892-94 (citations omitted). These imperative needs explain why Congress, in 1947, provided the Director with summary power to terminate employees as to whom he had any question while, at the same time, stripping those employees of the only protections they then enjoyed under federal law.

In sum, the explicit language of section 102(c), the clear statutory objectives, and the'nature of the administrative action here involved all lead to the inescapable conclusion that Congress intended to preclude judicial review of the Director’s exercise of his authority under that section.

II. COMMITMENT TO AGENCY DISCRETION

Even absent these clear and convincing indications of congressional intent, the court should nevertheless hold the Director’s decision shielded from judicial review because section 102(c) commits this decision to the Director’s discretion within the meaning of section 701(a)(2). The majority avoids this conclusion first by reading non-existent constraints into the section 102(c) grant of termination authority, and then by ignoring this court’s precedents sanctioning a less restrictive standard for finding a commitment to agency discretion.

A. The Majority’s Overstatement of the Constraints Section 102(c) Imposes on the Director’s Exercise of Discretion

In order to support its holding that section 701(a)(2) does not prohibit judicial review of the Director’s exercise of authority under section 102(c), the majority overstates the constraints the latter imposes on the Director’s discretion.

In the first place, the majority misstates section 102(c) by asserting that it establishes a standard requiring “that terminations be ‘necessary or advisable in the interests of the United States.’ ” (Majority Opinion at 1517). From this misreading, the majority concludes that “section 102(c) requires that an employee be terminated only if the termination advances the interests of the United States.” (Majority Opinion at 1518) (emphasis in the original). Thus, the door is opened to at least limited scrutiny into the merits of the Director’s decision. The statute, however, does not read that way. Far from requiring that a particular termination in fact advance the national interest, section 102(c) goes no further than to authorize the Director “in his discretion” to terminate any employee “whenever he shall deem such termination necessary or advisable in the interests of the United States.” (emphasis added). Thus the operative requirement is that the Director believe that the termination safeguards the interests of the United States and not (as the majority suggests) that it do so in fact.

Moreover, the statutory language cannot be read to authorize a court to inquire into the reasons for the Director’s decision to terminate an employee because that decision is delegated to his discretion alone. As this court held in Service v. Dulles, supra, the judicial function is limited to a determination that the statute’s “procedural requirements” have been met; namely, that the decision to terminate was in fact based on the Director’s assessment of the *1531 national interest. Beyond that, we cannot inquire.

One obvious purpose of section 102(c) is to allow the Director to act upon unsubstantiated impressions “when he shall deem” it in the national interest to do so. This represents, of course, an unusually broad delegation of authority. It was, however, the judgment of Congress that the Director should have that latitude, and it is not for this court to second-guess that judgment.

B. The Majority’s Failure to Apply this Court’s Precedents Regarding the Standard for Finding Commitment to Agency Discretion Within the Meaning of Section 701(a)(2)

Based on its finding that section 102(c) establishes a standard that constrains the Director's exercise of his discretion in terminating employees, the majority holds that the Director’s decisions are judicially reviewable. This holding is premised on the notion that the “committed to agency discretion” exception applies only when “a court would have no meaningful standard” to apply (Majority Opinion at 1517); this notion, however, applies too narrow a reading of the Supreme Court’s interpretation of section 701(a)(2), and directly contravenes this court’s own precedents.

In support of the proposition that section 701(a)(2) applies only where there is “no law to apply” (Majority Opinion at 14), the majority cites Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 410 , 91 S.Ct. at 821 , and Heckler v. Chaney, 470 U.S. 821 , 105 S.Ct. 1649, 1655 , 84 L.Ed.2d 714 (1985). In those cases, however, the Supreme Court held only that section 701(a)(2) “is a very narrow exception” and that it is “applicable in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply,” or so drawn that “a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Nowhere does the Court state that this exception applies only in those cases.

The majority simply ignores this court’s cases holding that section 701(a)(2) is evoked not only by the absence of applicable standards, but also by certain pragmatic considerations. In Natural Resources Defense Council, Inc. v. SEC, 606 F.2d 1031, 1043-44 (D.C.Cir.1979), this court held that the application of section 701(a)(2)

necessarily turns on pragmatic considerations as to whether an agency determination is the proper subject of judicial review____ In making this determination, we ... evaluate the relevance of three particularly important factors: the need for judicial supervision to safeguard the interests of the plaintiffs; the impact of review on the effectiveness of the agency in carrying out its congressionally assigned role; and the appropriateness of the issues raised for judicial review____ Finally, we inquire whether the considerations in favor of nonreviewability thus identified are sufficiently compelling to rebut the strong presumption of judicial review.

Accord, Local 1219, AFGE v. Donovan, 683 F.2d 511 , 515 (D.C.Cir.1982) (Section 701(a)(2) “shields from review only those matters for which a ‘fair appraisal of the legislative scheme, including a weighing of practical and policy implications of reviewability, persuasively indicates that judicial review should be circumscribed.’ ” (citation omitted)).

An assessment of the “pragmatic considerations” in the instant case, including “the impact of review on the effectiveness of the agency in carrying out its congressionally assigned role,” clearly weighs against judicial review of the Director’s section 102(c) decisions.

As the Supreme Court observed when dealing with a different section of the National Security Act of 1947:

The decisions of the Director, who must of course be familiar with “the whole picture,” as judges are not, are worthy of great deference given the magnitude of the national security interests and potential risks at stake. It is conceivable that the mere explanation of why information *1532 must be withheld can convey valuable information to a foreign intelligence agency.

CIA v. Sims, 105 S.Ct. at 1893. Here, of course, we are dealing not with a question of deference but of judicial competence. To intrude however deferentially into the Director’s most sensitive personnel decisions entails the inevitable risk of unwittingly compromising national intelligence operations through the forced disclosure of information whose possible significance a court is not capable of assessing.

Whether or not such a danger exists in this particular case, the majority would establish a precedent that would force the Director now or in the future to risk the public airing of agency policies and concerns as well as the particular information upon which a specific termination decision is based. This would tend to compromise the CIA’s vital, congressionally-mandated functions. These pragmatic considerations “are sufficiently compelling to rebut the strong presumption of judicial review.” Natural Resources Defense Council, 606 F.2d at 1044 . *

Even accepting, for the sake of argument, the majority’s narrow position that section 701(a)(2) applies only when there is “no law to apply,” judicial review is nevertheless precluded. Section 102(c) represents one of those “very narrow exceptions” where “there is no law to apply.” It is in fact drawn in such a manner that “a court would have no meaningful standard against which to judge” the Director’s exercise of his statutory discretion. It bears repeating that the operative standard here is not whether the termination of a particular employee serves the national interest (as the majority maintains), but whether the Director believes it does. In the murky world in which the CIA must operate, one deals as often as not with intuitions as well as with provable facts, and a judge’s perception of the national interest could be light years away from that of the Director called upon to make the critical judgments in the discharge of his special responsibilities. Given the nature of the discretion the Director is required to exercise, where is the law to be applied, where the meaningful standard against which any judge can take the measure of his performance?

It is noteworthy that in not a single case cited by the majority in support of judicial review of the exercise of agency discretion did the challenged decision involve considerations of national security: e.g., Citizens to Preserve Overton Park (highway planning); Robbins v. Reagan, 780 F.2d 37 (D.C.Cir.1985) (shelter for the homeless); Local 1219, AFGE v. Donovan, 683 F.2d 511 (D.C.Cir.1982) (settlement agreement between the Department of Labor and a federal employees’ union resolving charges of unfair election procedures); WWHT, Inc. v. FCC, 656 F.2d 807 (D.C.Cir.1981) (FCC denial of rulemaking petition); Adams v. Richardson, 480 F.2d 1159 (D.C.Cir.1973) (en banc) (school desegregation); State of Fla. v. United States Dep’t of Interior, 768 F.2d 1248 (11th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 1186 , 89 L.Ed.2d 302 (1986) (Government acquisition of land to be held in trust for Indian tribe); Wong Wing Hang v. INS, 360 F.2d 715 (2d Cir.1966) (denial of application for suspension of deportation). Nor does a single case relied upon by the majority involve a situation where judicial review *1533 could pose the threat of disrupting “the effectiveness of the agency in carrying out its congressionally assigned role.”

Because judicial review would tend to be sufficiently disruptive of the CIA’s mission to rebut the presumption of reviewability, and because section 102(c) imposes no substantive constraints on the Director’s exercise of his discretion and provides no meaningful standard for a court to apply, the Director’s action is committed to his discretion within the meaning of section 701(a)(2) and is not subject to review.

III. Arguable Constitutional Rights

Having decided that section 102(c) does not preclude judicial inquiry into the Director’s rationale for terminating an employee, the majority proceeds to explore alternative explanations for the Director’s action in search of one thát might constitute an “arguable infringement of constitutional rights” (Majority Opinion at 1521) (emphasis in the original). It found one (at least to its own satisfaction) in the possibility that the termination of Doe might have been “part of a ban against the employment of all homosexuals.” See Majority Opinion at 1522-1523. While the majority concedes that the Supreme Court in Bowers v. Harwick, — U.S. —, 106 S.Ct. 2841 , 92 L.Ed.2d 140 (1986), and this court in Dronenburg v. Zech, 741 F.2d 1388 (D.C.Cir.1984), have held that homosexual conduct is not constitutionally protected, it argues that these courts did not reach “the difficult issue of whether an agency of the federal government can discriminate against individuals merely because of sexual orientation” (Majority Opinion at 1522) (emphasis in the original).

Accordingly, the majority remands the case with instructions to the district court (as I understand them) to determine whether the CIA has a policy of terminating the employment of all homosexuals. Presumably, if such a policy were found, the issue would then arise whether homosexual orientation, as opposed to homosexual conduct, is constitutionally protected. (Majority Opinion at 1522-1523).

At this point it is well to remind ourselves of what the Supreme Court described, in Sims , as “the harsh realities of the present day.” 105 S.Ct. at 1891. In few areas of our national life can a single mistake lead to such calamitous consequences as in our national security services; in few areas are those in responsibility under such a heavy obligation to avoid the slightest identifiable risk. As one who shares the belief that the Constitution is not a suicide pact, I cannot agree that an intelligence agency is even arguably precluded from adopting a policy banninjg the employment of members of any class which the Director might deem to be more susceptible to blackmail than the average. Nor may we assume (as the majority apparently does) that every constitutional inquiry will suffice to override a congressional decision to preclude judicial review for reasons of national security. Be that as it may, neither that issue nor the majority’s hypothetical is before us, and the plain meaning of section 102(c) precludes the kind of judicial fishing expedition on which the majority proposes to dispatch the district court.

IV. Remaining Judicial Role

Judicial review of the Director’s section 102(c) decision to terminate Doe’s employment is unavailable under either section 701(a)(1) or section 701(a)(2). The only legitimate role remaining for this court is to ensure that the Director acted within the bounds of his statutory authority, i.e., that his decision to terminate Doe’s employment was in fact based upon his appraisal that “such termination [was] necessary or advisable in the interests of the United States.” This is precisely the role to which this court limited itself in finding that the Director had acted within his authority in Torpats v. McCone, 300 F.2d 914 (D.C.Cir.), cert. denied, 371 U.S. 886 , 83 S.Ct. 182 , 9 L.Ed.2d 121 (1962). See also Service v. Dulles, 235 F.2d 215 (D.C.Cir.1956).

In the instant case, as in Torpats , the record contains the Director’s sworn statement that “[ajfter careful consideration of *1534 the matter, [the Director] determined that the termination of Mr. Doe’s employment was necessary and advisable in the interests of the United States.” This statement suffices to require our holding “that the Director acted within the authority conferred upon him by Congress____” 300 F.2d at 915 .

As this comprises the extent of the legitimate inquiry, this case should be remanded to the district court with instructions to dismiss.

In support of its position that such pragmatic concerns need not be considered, and that the presence of a judicially manageable standard is the only issue relevant to the applicability of section 701(a)(2), the majority cites two cases from this court, Adams v. Richardson, 480 F.2d 1159 (D.C.Cir.1973) (en banc), and Robbins v. Reagan, 780 F.2d 37 (D.C.Cir.1985). These cases, however, are both distinguishable. Neither case involved an agency with a sensitive, national security-related mission, and in neither did judicial review pose the threat of disrupting "the effectiveness of the agency in carrying out its congressionally assigned role.” Natural Resources Defense Council, 606 F.2d at 1044 . In fact, in both cases the court emphasized that its scrutiny would not interfere with agency functioning. 480 F.2d at 1162 ; 780 F.2d at 47 .

The majority also cites Local 1219, AFGE v. Donovan, but far from supporting the majority’s narrow reading of section 701(a)(2), that case directs the court to weigh the "practical and policy implications of reviewability." 683 F.2d at 515.