finding Egan did not- bar judicial review of constitutional challenge to questionnaire used in making security clearance determinations but distinguishing case from those “challenging, on constitutional grounds, discretionary judgments regarding a particular. employee’s security clearance”
How later courts described this case
- finding Egan did not- bar judicial review of constitutional challenge to questionnaire used in making security clearance determinations but distinguishing case from those “challenging, on constitutional grounds, discretionary judgments regarding a particular. employee’s security clearance”
- allowing review of constitutional challenges to the methods used to gather information that was the basis for discretionary judgments
- expressing the viéw of two panel members that Whalen is ambiguous as to the right’s existence
- declining to endorse such “untenable, and far- reaching, restrictions on judicial review of governmental actions”
Written by the judges who cited it.
The opinion
SENTELLE, Circuit Judge,
concurring:
I concur in the opinion of the Court, and write separately (and briefly) only to point out what I understand the Court not to be doing. I do not understand us to be doing any more than passing on the constitutionality of a particular method of information-gathering in the pursuit of national security interests by the Department of Defense. That is to say, I understand us to recognize that we are not positioned to displace the Executive as the decisionmaker in the area of defense.
Jurisdiction over an issue does not automatically imbue a judge with the expertise needed to address all its intricacies. Particularly in matters relating to national security, a judge’s inclination to substitute his judgment for that of qualified experts in the Executive branch can be pernicious. “If the Constitution gives the Executive a large degree of unshared power in the conduct of foreign affairs and the maintenance of our national defense, then under the Constitution the Executive must have the largely unshared duty to determine and preserve the degree of internal security necessary to exercise that power successfully.” New York Times Co. v. United States, 403 U.S. 713, 728-29 , 91 S.Ct. 2140, 2149 , 29 L.Ed.2d 822 (1971) (Powell, J., concurring).
That is to say, while our constitutional scheme provides judges with the clear responsibility to adjudicate narrowly-drawn constitutional questions, it does not offer us license independently to assess the wisdom or the necessity of internal Department of Defense policies and to pass judgment thereon. Without clear congressional authorization, courts traditionally have demonstrated a reluctance to encroach on Executive prerogative in the area of military and national security affairs. See, e.g., Chappell v. Wallace, 462 U.S. 296 , 103 S.Ct. 2362 , 76 L.Ed.2d 586 (1983); Schlesinger v. Councilman, 420 U.S. 738, 757-58 , 95 S.Ct. 1300, 1313 , 43 L.Ed.2d 591 (1975); *297 Gilligan v. Morgan, 413 U.S. 1, 10 , 93 S.Ct. 2440, 2445 , 37 L.Ed.2d 407 (1973); Burns v. Wilson, 346 U.S. 137, 142, 144 , 73 S.Ct. 1045, 1048, 1049 , 97 L.Ed. 1508 (1953); Orloff v. Willoughby, 345 U.S. 83, 93-94 , 73 S.Ct. 534, 540 , 97 L.Ed. 842 (1953). It is not for us, as it was not for the District Court, to justify our conclusions by inferences drawn either from world events— such as the breakup of the Soviet Union weighed by the District Court in determining the public interest component of the preliminary injunction — or from prior agency policy, that is, the Defense Department’s earlier failure to conduct periodic reinvestigations for secret clearances. Such bases for judicial decisions run perilously close to political judgments about foreign policy, which, under Article II of the Constitution, are committed to the Executive alone.
I do not understand our decision today to abandon our tradition of deference to the Executive on matters regarding national security and note that the determination of trustworthiness is an “inexact science at best,” Adams v. Laird, 420 F.2d 230, 239 (1969), cert. denied, 397 U.S. 1039 , 90 S.Ct. 1360 , 25 L.Ed.2d 650 (1970).
As I do not understand the Court’s opinion today to be inconsistent with these considerations, I concur.