Amicus Curiae Brief — American Foreign Service Assn. v. Garfinkel

= g No. 87-2127

an the Supreme Court of the Wnited States

AMERICAN FOREIGN SERVICE ASSOCIATION, ET AL.,

APPELLANTS

VU.

STEVEN GARFINKEL, ET AL., APPELLEES.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

BRIEF AND MOTION OF THE SPEAKER AND LEADERSHIP GROUP FOR

LEAVE TO FILE BRIEF AMICI CURIAE OUT OF TIME

STEVEN R. ROSS (Counsel of Record),

General Counsel to the Clerk.

CHARLES TIEFER,

Deputy General Counsel to the Clerk.

ROBERT MICHAEL LONG,

Assistant Counsel to the Clerk.

U.S. House of Representatives,

The Capitol, H-105,

Washington, D.C. 20515.

(202) 225-9700

Attorneys for the Speaker and

Leadership Group.

FEBRUARY 1989

In the Supreme Court of the Wnited States

No. 87-2127

AMERICAN FOREIGN SERVICE ASSOCIATION, ET AL.,

APPELLANTS,

VU.

STEVEN GARFINKEL, ET AL., APPELLEES

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

MOTION OF THE SPEAKER AND LEADERSHIP GROUP FOR LEAVE TO FILE BRIEF

AMICI CURIAE OUT OF TIME

For the following reasons, the Speaker and Leadership

Group respectfully move for leave to file the attached

brief amici curiae.

In this appeal, the Executive Branch has challenged an

act of Congress. This Court has “long held that Congress

is the proper party to defend the validity of a statute,”

Immigration and Naturalization Service v. Chadha, 462

U.S. 919, 940 (1983), when the Executive Branch chal-

lenges the statute’s constitutionality. In such cases, the

Speaker and Leadership Group (‘House parties’) is the

normal mechanism by which the House of Representa-

tives presents its institutional interest. See, e.g., Morrison

v. Olson, 108 S. Ct. 2597 (1988).

Pursuant to Rule 36.2 of this Court, an amici curiae

brief presenting the position set forth herein was due to

be filed on December 29, 1988. However, that date was in

the final days of the One Hundredth Congress. The House

parties, like the Senate, appropriately awaited the start

(1)

2

and organization of the One Hundred First Congress

prior to filing. The merits of the challenge to this statute,

if reached, would raise major questions of the separation

of powers in matters of national security, concerning

which deliberations were appropriate after the organiza-

tion of the Congress.

Counsel for the parties have been advised of, and pro-

vided in advance with draft copies of, the accompanying

brief in advance of the printing of this motion and brief,

allowing appellees thereby to review those arguments in

their preparations for filing their own brief, which is not

yet due. Neither the appellants nor the appellees object

to the filing of the brief amici curiae. Accordingly, the

House parties move for leave to file the attached brief

amici curiae.

Respectfully submitted,

STEVEN R. Ross (Counsel of Record),

General Counsel to the Clerk

CHARLES TIEFER,

Deputy General Counsel to the

Clerk

RoBert MICHAEL LONG,

Assistant Counsel to the Clerk

U.S. House of Representatives

The Capitol, H-105

Washington, D.C. 20515

(202) 225-9700 -

Attorneys for the Speaker and

Leadership Group

FEBRUARY 1989

TABLE OF CONTENTS

I. The Court Should Hold That the Case No Longer

Presents a Basis To Rule, or Else Vacate the

District Court’s Ruling and Remand for Recon-

sc caccscncecencnccsscscescesecorees

A. Legislative Background ..0........0....cccccc0eeeeeeeeeeees

B. Absence of a Concrete Case...............:cesse0e0e000

II. Congress May Legislate About Government Infor-

mation, Particularly About Programs To With-

hold It From Congress Itself, and Most Particu-

larly May Decide Whether To Appropriate for

a ncsssnoncoscee

A. Congress and the Executive Share Author-

ity Over National Security Generally............

B. Congress May Legislate Regarding Govern-

ment Information Particularly About

Withholding From Congress Information

About Waste and Wrongdoing.....................-+.

C. Congress Decides Whether to Withhold Ap-

is ccernscesnnscesscescncccccecsone

i _sssccnsnsnoncncesececeses

TABLE OF CASES AND AUTHORITIES

Cases:

Adams v. Vance, 570 F.2d 950 (D.C. Cir. 1978)..............

Alejandrino v. Quezon, 271 U.S. 528 (1926)........000000000.

American Foreign Service Association v. Garfinkel,

688 F. Supp. 671 (D.D.C. 1988) .0..........ccccecsceeeeseeeseeees

16

16

Cases—Continued

Ameron, Inc. v. U.S. Army Corps of Engineers, 610 F.

Supp. 750 (D.N.J. 1985), aff'd, 809 F.2d 979 (3d Cir.

1986), cert. dismissed, 109 S. Ct. 297 (1988) ............00

Ashwander v. Tennessee Valley Authority, 297 US.

288, reh'g denied, 297 U.S. 728 (1936)..........ccccceeceeeeeees

Barenblatt v. United States, 360 U.S. 109, rehg

denied, 361 U.S. 854 (1959) .............ccrecssssssvssesesceeseesees

Bowsher v. Synar, 478 U.S. 714 (1986).........cccccceseeeeeees

Buckley v. Valeo, 424 U.S. 1 (1976) ........ccccccecsesseeseeeeenees

CIA v. Sims, 471 U.S. 159 (1985) ........ccccccsseeseeseneeeeneenenees

Cole v. Young, 351 U.S. 536 (1956) .0........ccccesceessceeeeeeeees

Commodity Futures Trading Commission v. Schor,

A eeeaticctneceenenntstinsieinantanninnnieiniiniinen

County of Los Angeles v. Davis, 440 U.S. 625 (1979).....

Dames & Moore v. Regan, 453 U.S. 654 (1981)...............

Department of Navy v. Egan, 108 S. Ct. 818 (1988).......

Eastland v. United States Servicemen’s Fund, 421

mm! SC ee ss cieepionanaiinisemmeniinnantiaien:

Environmental Protection Agency v. Mink, 410 USS.

Te GUI shnccnsinieasenstanendcininpaiinpaetainsdadaniaiemenmasiiuiimenineninn

Gelston v. Hoyt, 6 U.S. (3 Wheat.) 246 (1818)................

Gilligan v. Morgan, 413 U.S. 1 (1973).......ccccccceeseeeeeeees

Golden v. Zwickler, 394 U.S. 103 (1969) ........ccccccceeeeeeees

Goldwater v. Carter, 444 U.S. 996 (1979)...... 0.0...

Gravel v. United States, 408 U.S. 605 (1972)...

Harlow v. Fitzgerald, 457 U.S. 800 (1982)..........:cccceecee

Helstoski v. Meanor, 442 U.S. 500 (1979) ...............ee

Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973),

cert. denied, 416 U.S. 936 (1974) ........ccceseeeeeseeeeeeeeees

Immigration and Naturalization Service v. Chadha,

Ee ee Be heibiisitcnirctnicsteriiitetinniintinnmennen

Japan Whaling Association v. American Cetacean So-

a 1, 5,

Kendall v. United States ex rel. Stokes, 37 U.S. (12

Penh sasicstionmnennienn

Kent v. Dulles, 357 U.S. 116 (1958) ....... cece eeeseeeeneeeees

Kleppe v. New Mexico, 426 U.S. 529 (1976)...

Kremens v. Bartley, 431 U.S. 119 (1977) «0.0.0... 4, 12,

Laird v. Tatum, 408 U.S. 1 (1972) .............ccccceeeeeeeseeeeeeeees

Little v. Barreme, 6 U.S. (2 Craneh) 170 (1804)..............

Page

Cases—Continued

McGrain v. Daugherty, 273 U.S. 135 (1927)........ccccce 5, 22

Morrison v. Olson, 108 S. Ct. 2597 (1988)........ccccccceeceees 17

National Treasury Employees Union v. Nixon, 492

Pe ee I i ceinsinsiistaksiinidtssenatnntsnbiniiiasisinsnen 19

New York Times Co. v. United States, 403 U.S. 713

RE I oso ee aC SONI ORY Oe a ne 21

Nixon v. Administrator of General Services, 433 U.S.

EOP se citesatsciiinasineunicniindecitnncnetiladiniscnsctttbeieiiidnanien passim

Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972). 4, 13

Rescue Army v. Municipal Court, 331 U.S. 549 (1947). 15

Totten v. United States, 92 U.S. 105 (1875)... 29

United States Army Corps of Engineers v. Ameron,

ee ae 1

United States v. Helstoski, 442 U.S. 447 (1979).............. 1

United States v. Nixon, 418 U.S. 638 (1974)... 20

United States v. Robel, 389 U.S. 258 (1967)...........:cc00000 21

Watson v. Buck, 313 U.S. 387 (1941) .......ccccccccceesceseseeseeees 12

Young v. United States ex rel. Vuitton et Fils, S.A.,

acini 17

Youngstown Sheet & Tube Co. v. Sawyer, 343 US.

aE iiiculecieasdtaceatisiininnstaiddadetasneitsdncssinedensninimentesstel passim

Legislative Materials and Statutes:

ES SERRE perreemnen emerenn 18

I a idisbenesndenslls 18

en nen 18

EE 18

Se I scellieaaemsinins 18

ee A, sas ssunieinnaiiaeneibndie 18

ee ss ceeaininiasanionnsesins 18

ns siiteibseersinne 26

er a I seteeensibesaiessnensonsin 19

rr i I Os sisccrisinnerilaeianennensiioi 19

1ZD Coma. Rec. 14568 (19G8).......0..0.ccccsesecceccesscsecsescosessccsere 7

ic sisocrntsntanseeniniiieiidnaneebieans 24

ee 23

48 Cong. Rec. 5639 (1912)... eee SOLER are adt boc en 24

EE 23

53 Fed. Reg. 38,278-80 (1988) ............:ccsccscsseesessesseseeeeeseees 11

The Civil Service Reform Act of 1978, Pub. L. No.

SO I 25

IV

Page

Legislative Materials and Statutes—Continued

Conference Report to Accompany the Civil Service

Reform Act of 1978, H.R. Conf. Rep. No. 1717, 95th

Comas.. BB Bree. (RB TED .2<cccrccossccscrsccecsecosossovscesesccsosecssosesese 25

Conf. Report to Accompany H.J. Res. 396, H.R. Conf.

Rep. No. 1398, 100th Cong., 1st Sess. 1179 (1987)...... 9

Classified Information Nondisclosure Agreements:

He@ ing Before the Subcomm. on Human Resources

of the House Comm. on Post Office and Civil Serv-

ice, 100th Cong., Ist Sess. (1987)........:cccecererereeeenes 8, 25

Congress and the Administration’s Secrecy Pledges:

Hearing Before the Subcomm. on Legislation and

National Security of the House Comm. on Govern-

ment Operations, 100th Cong., 2d Sess. (1988) ........... 8

Hearings Before the Subcomm. on Economy in Gov-

ernment of the Joint Economic Committee, 90th

Chrmnts.,. Bb Gate. CRITE anececsocevecseccceseesssscscessssveenstvsorcesasesess 25

Hearings on H.R. 11280 Before the House Comm. on

Post Office and Civil Service-95th Cong., 2d Sess.

rei icscissssciieninintendstenennenpiininatinpisdcinemiediinimmmtiitaninninenac 25

Hearings on Military Functions, National Military

Establishment Appropriations Bill for 1949, House

Comm. on Appropriations, 80th Cong., 2d Sess.

Ce Ti icceinaciideccenidacrenencctesinsiiiadiiasicumenicindininiamnionee 27

House Comm. on the Armed Services, Federal Poly-

graph Limitations and Anti-Censorship Act of

1984, H.R. 4681, H.R. Rep. No. 961, 98th Cong., 2d

SL eer ee 7

House Comm. on Government Operations, The Ad-

ministration’s Initiatives to Expand Polygraph Use

and Impose Lifelong Censorship on Thousands of

Government Employees, H.R. Rep. No. 578, 98th

See... BOB TI, Ce ceceencnncvevecssstncsevennnnsicncsveinmtinneevesies 7

House Comm. on Government Operations, Legisla-

tion Needed to Curb Secrecy Contracts, H.R. Doc.

No. 991, 100th Cong., 2d Sess. (1988) .........:ccccseeeee passim

House Comm. on Post Office and Civil Service, Fed-

eral Polygraph Limitation and Anti-Censorship Act

of 1984, H.R. 4681, H.R. Rep. 961, 98th Cong., 2d

BR SIs snicccinsciniceincesitaleininidtainaiaiasaapbllaaiaadasiinarineliniates passim

eee a oe

—

Page

Legislative Materials and Statutes—Continued

Final Report of the Senate Sel. Comm. to Study Gov-

ernmental Operations With Respect to Intelligence

Activities, S. Rep. No. 755, 94th Cong., 2d Sess ....... 28, 29

Postal Service and General Government Appropria-

tions Act, 1988, Pub. L. 100-202, 101 Stat. 1329

SITIE siscebeteiseobiittpicibatinsideabianetisdepasiahtantionsiadesticnmtieiicsess passim

Report of the Congressional Committee Investigating

the Iran-Contra Affair, S. Rep. No. 216 & H. Rep.

No. 433, 100th Cong., Ist Sess. (1987) ..0......0ccccccceeeeee 23, 30

Se a ssineteasiasemaueanioe 26

NRE ear eee ee Oe 19

EE AE oe Oe 21

ee Re ASD ES A I 21

I at eacanceicaecs 25

DG TES RES STE Ar 5, 24

ESR Pe a Re ne NER 21

enue 21

EERE ES A ne 28

EE ETERS na ne 21

Pub. L. No. 93-559, 88 Stat. 1804 (1974) occ 29

Pub. L. No. 94-329, 90 Stat. 757 (1976) o0......cccceeeees 29

Pub. L. No. 95-454, 92 Stat. 1114 (1978) oc eee 25

Pub. L. No. 98-164, 97 Stat. 1017 (1983) oo... 7

Pub. L. No. 98-477, 98 Stat. 2209.00... cccceeeseseseeeeeee 21

Pub. L. No. 99-83, 99 Stat. 264 (1985) oo... eee 29

Pub. L. No. 100-440, 102 Stat. 1721 (1987)... 12

Pub. L. No. 100-456, 102 Stat. 1918 (1988)... 25

National Security Decision Directive 84:

Hearings Before the Senate Comm. on Govern-

mental Affairs, 98th Cong., Ist Sess. (1983) .... passim

Presidential Directive on the Use of Polygraphs

and Prepublication Review: Hearings Before

the Subcomm. on Civil and Constitutional

Rights of the House Comm. on the Judiciary

and the Subcomm. on~ Civil Service of the

House Comm. on Post Office and Civil Service,

98th Cong., lst and 2nd Sess. (1983 and 1984)... 6

Vi

Legislative Materials and Statutes—Continued

National Security Decision Directive 84—Continued

Review of the President’s National Security Deci-

sion Directive 84 and the Proposed Department

of Defense Directive on Polygraph Use: Hearing

Before the Subcomm. on Legislation and Na-

tional Security of the House Comm. on Govern-

ment Operations, 98th Cong., lst Sess. (1983)..... 6

Miscellaneous:

R. Berger, Executive Privilege: A Constitutional

BD EI icssumnsesinciocsnnsibvadinisaticinnsnbepesscateminmpecdtiiiients 22

E. Corwin, The Constitution and What It Means

I IT ccncnscciencnntenbipemcemiisiatenabatepntcetinndemenciean 27

M. Farrand, 1 The Records of the Federal Convention

of 1787 (1937)......... ssiacaesidaeniandodeehinaadiiaibadeniduiaiiabiiicionsbbaadeen 27

L. Fisher, Presidential Spending Power (1975).............. 29

T.M. Franck & E. Weisband, Foreign Policy by Con-

SP cviitisuiiaciaserinariiesillbainieniaapinnieniaieeennpeasiaesaien 29, 30

Galloway, The Investigative Function of Congress, 21

Be. Ts Ts I, Ge cctncerecesesessncensenrennsscssintesmieannnens 22

E. Huzar, The Purse and the Sword: Control of the

Army by Congress through Military Appropriations

I ieteinnietesrseitinnsnniisnninensnnattansiniiiinniican 27

E. Nobleman, Financial Aspects of Congressional

Participation in Foreign Relations, Ann. of the

Bs is CN: TIE nccchcecntnisiccentnnisnnistnctisasammpieniceies 27, 28

A. Schlesinger, Congress Investigates: 1792-1974

CITE eishsiadacsuslisesduiadaiadhiaihinicicedstncdibeaiitiatiaiibiessuntiansementesctsins 22, 23

S. Spero, Government As Employer (1948)............:00000++ 23

T. Taylor,-Grand Inquest: The Story of Congressional

I CED crccinisstdicicniiicrciptsstniscccnecnntnianisnendassiunene 22

S. Turner, Secrecy and Democracy (1985) ..........cc000008 11

Wolfson, Js a Presidential Item Veto Constitutional?

Ne ee ascsuddunsiiabaciinans 27

$n the Supreme Court of the Wnited States

No. 87-2127

AMERICAN FOREIGN SERVICE ASSOCIATION, ET AL.,

APPELLANTS,

Vv.

STEVEN GARFINKEL, ET AL., APPELLEES

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

INTEREST OF THE AMICI CURIAE

The Speaker and Leadership Group of the House of

Representatives (“House Amici’)! respectfully submit

this brief as amici curiae in support of the position that

the case should be dismissed, or the decision of the dis-

trict court vacated and remanded for reconsideration, on

the ground that it no longer presents a concrete contro-

versy; if the merits are reached, that district court deci-

*The Speaker and Leadership Group are the Honorable Jim

Wright, Speaker of the House of Representatives; the Honorable

Thomas S. Foley, Majority Leader; and the Honorable Tony Coelho,

Majority Whip.

Participation by the Speaker and Leadership Group is the standard

mechanism by which the House of Representatives pursues its institu-

tional interests in litigation. See, e.g, United States Army Corps of En-

gineers v. Ameron, Inc., 109 S. Ct. 297 (1988); Japan Whaling Associa-

tion v. American Cetacean Society, 478 U.S. 221 (1986); Bowsher v.

Synar, 478 U.S. 714 (1986). The Speaker of the House has also repre-

sented the institutional interests of the body in various litigation in

this Court. See, eg. United States v. Helstoski, 442 U.S. 447 (1979);

Helstoski v. Meanor, 442 U.S. 500 (1979).

(1)

2

sion should be reversed and the Congress’ authority to

enact the challenged Act of Congress should be sustained.

After the Congress adopted section 630 of the Treasury,

Postal Service and General Government Appropriations

Act, 1988, Pub. L. 100-202, 101 Stat. 13829 (1987), a mora-

torium on agency use of certain nondisclosure forms, a

single District Judge struck down that statute. The dis-

trict court held that the Congress’ role is so inconsequen-

tial, and the President’s authority so preeminent, in the

area of national security information, that the President

can act in contravention of a duly enacted statutory pro-

vision. Yet, the same district court then proceeded to con-

clude that the President’s use of those nondisclosure

forms violated the Constitution.

The district court grievously erred in ignoring the stat-

ute’s constitutional] basis: this Court’s many precedents

recognizing Congressional authority, and rejecting the

notion of exclusive Presidential authority, in the national

security area. However, that ultimate question of the al-

location of powers between the branches is not properly

before the Court in this case. While the district court

broke loose from the constraints of normal jurispruden-

tial considerations to espouse its theory of constitutional

law, this Court may well recognize that the current dis-

pute does not presently give rise to a case or controversy.

Rather, the controversy over the Information Security

Oversight Office’s (ISOO) 1983-89 “‘anti-leak”’ or “nondis-

closure’”” program challenged by the plaintiffs has been

the subject of significant give and take between the exec-

utive and legislative branches. This dispute regarding the

precise language to be used in restricting the speech of

employees who have access to sensitive informatiun lacks

sufficient focus, particularly with ISOO’s retreat from the

most objectionable aspects of that program concerning

“classifiable” information. The courts should permit the

ongoing dialogue between the political branches to pro-

ceed until a satisfactory conclusion is reached. Not yet is

—

3

this Court required to demarcate the essential powers

and limits of the political branches.

Although the Court should dispose of the case on these

jurisdictional grounds, if, the posture of the case notwith-

standing, the Court should decide to reach the basic ques-

tion of constitutionality, the Court should reject the

President’s claim to unilateral uncontrollable power. This

Court has consistently recognized that in the area of na-

tional security the President and the Congress share both

responsibility and authority. See, e.g, Youngstown Sheet

& Tube Co. v. Sawyer, 343 U.S. 579 (1952). The Court

should not deny to Congress its rightful place in the de-

termination of national security policy. The President’s

opposition to the moratorium should not have been ex-

pressed by defiance of the law, but rather should have

been expressed within the legislative process. The Consti-

tution, and the political process, provide the President

with many weapons, including the right to veto legisla-

tion which contain provisions he disfavors. The Presi-

dent’s role in national security matters, though great,

neither precludes the legislative branch from exercising

its legislative authority nor excuses the executive from

obeying the law. This notion of shared power lies at the

heart of our constitutional system and has been upheld

by this Court whenever challenged.

Consistent with recently developed and judicially ac-

cepted practice, both Houses of Congress appear as amici

by their appropriate legal representatives to offer their

institutional positions regarding this case. Although this

case need not require the Court to reach the question of

the Act’s constitutionality, if the Court should address

the issue its answer should be clear and unequivocal. If

the district court’s substantive decisiom is considered it

should be rejected.

SUMMARY OF ARGUMENT

This Court should hold that the current dispute does

not, at present, give rise to a case or controversy, because

the significant give and take between the executive and

4

legislative branches has resolved, or will resolve, so large

a part of the issues as not to leave a concrete basis for

ruling. After Judge Gasch himself ruled that restrictions

about ‘classifiable’ information in nondisclosure forms

were unconstitutional, ISOO finished discarding the

forms not funded by section 630 and substituted new ones

without the most objectionable feature. The controversy

underlying Judge Gasch’s ruling on the statutory morato-

rium became obsolete once the discarding of the forms se-

cured that moratorium’s primary purpose. The remaining

issues about the moratorium are at present unfocused

and do not currently warrant resolution of major consti-

tutional issues.

To proceed with the case now would violate the cardi-

nal axiom of judicial restraint in challenges to Acts of

Congress. Ashwander v. Tennessee Valley Authority, 297

U.S. 288, 347, reh'g denied, 297 U.S. 728 (1936) (Brandeis,

J., concurring). The precedents support either dismissing

the case, or vacating and remanding. See, e.g., Kremens v.

Bartley, 431 U.S. 119, 134-35 (1977) (remanding for recon-

sideration rather than resolving “unfocused’’ constitu-

tional claim); Socialist Labor Party v. Gilligan, 406 US.

583, 587-9 (1972). Dismissal finds particularly strong sup-

port in the inappropriateness of needlessly judicializing

the separation of powers in the national security context.

‘{Tyhere will be time enough [later] to consider that prob-

lem in a factual context,”’ Nixon v. Administrator of Gen-

eral Services, 433 U.S. 425, 445 (1977).

If, nonetheless, the Court reaches the constitutional

challenge urged by the Executive Branch, it should recog-

nize the constitutional and historically-confirmed author-

ity of Congress in this context. The Court could only

strike down an Act of Congress by “disabling the Con-

gress from acting upon the subject’ and “‘sustain[ing] ex-

clusive presidential control” over the field. Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-638 (1952)

(Jackson, J., concurring). This Court recognizes a ‘‘pre-

mier role which both Congress and the Executive play in

0

this field.” Japan Whaling Assn. v. American Cetacean

Society, 478 U.S. 221, 230 (1986).

Far from being disabled from acting on this subject,

Congress has several independent sources for its author-

ity. Statutory “regulation of material generated in the

Executive Branch has never been considered invalid as

an invasion of its [executive] autonomy.” Nixon v. Admin-

istrator of General Services, 433 U.S. at 445. Congress has

historically protected the right of executive employees to

bring it information on waste and wrongdoing, as part of

Congress’ broad oversight power. McGrain v. Daugherty,

273 U.S. 135 (1927).2 Congress’ power of the purse vests in

it alone the decision on funding an “anti-leak” program,

as confirmed by the Framers’ views and the nation’s his-

tory. A ruling against Congress’ power would be a stag-

gering blow to the system of checks and balances. This

Court should decline to judicialize this subject, or to

create an exclusive enclave of executive power, “for what

is at stake is the equilibrium established by our constitu-

tional system,” Youngstown, 343 U.S. at 638.

ARGUMENT

1. THE COURT SHOULD HOLD THAT THE CASE NO LONGER PRE-

SENTS A BASIS TO RULE, OR ELSE VACATE THE DISTRICT

COURT'S RULING AND REMAND FOR RECONSIDERATION

The reasons why the present dispute does not currently

give rise to a case or controversy begin with six years of

significant give and take between the executive and legis-

lative branches.

A. Legislative Background

In 1983, “after a number of embarrassing newspaper

stories about plans of the Reagan administration,” Presi-

dent Reagan announced he deemed himself “ ‘up to his

* The 1912 Lloyd-LaFollette Act confirmed permanently that the

“right of employees . . . to furnish any information to either House of

Congress, or to. . . a Member thereof may not be interfered with or

denied.” 5 U.S.C. §7211. Recent history has reconfirmed Congress’ au-

thority to assure direct access to it of those with vital information.

6

keister’” in leaks and promulgated National Security De-

cision Directive 84 (NSDD-84), J.A. at 14, on March 11,

1983.3 NSDD-84 massively expanded the use of nondisclo-

sure agreements, previously limited to the intelligence

agencies, to the large bureaucracies which handle routine

military procurement and similar matters.* J.A. at 14.

Contrary to the Solicitor General’s suggestion that the

1983 directive “did not generate significant public opposi-

tion” (Motion to Affirm at 19), within a year, hearings

and reports on the directive by four different Congres-

sional committees documented the large scale of the pro-

gram © and widespread public criticism.® Congress react-

3 A task force had reported on the matter a year earlier on March

31, 1982, but the President’s issuance of his March 11, 1983 directive

responded to the more contemporaneous events. The quotes are from

the historical background report, House Comm. on Post Office and

Civil Service, Federal Polygraph Limitation and Anti-Censorship Act

of 1984, (H.R. 4681), H.R. Rep. No. 961, 98th Cong., 2d Sess. 8 (1984)

(Part 1) [hereinafter Anti-Censorship Act Report).

4 NSDD-84 also expanded the use of prepublication review: the re-

quired submission of relevant statements to government clearance and

censorship, which had previously been limited to the Central Intelli-

gence Agency (CIA) and the National Security Agency (NSA).

5’ The General Accounting Office (GAO) testified in 1983 that ap-

proximately four million persons with access to classified information

would be required to sign a nondisclosure agreement, and approxi-

mately 127,000 with access to SCI would be required to sign a prepub-

lication review nondisclosure agreement. House Comm. on Govern-

ment Operations, Legislation Needed to Curb Secrecy Contracts, H.R.

Doc. No. 991, 100th Cong., 2d Sess. 3 (1988) [hereinafter 1988 Congres-

sional Report).

® See Presidential Directive on the Use of Polygraphs and Prepublica-

tion Review: Hearings Before the Subcomm. on Civil and Constitution-

al Rights of the House Comm. on the Judiciary and the Subcomm. on

the Civil Service of the House Comm. on Post Office and Civil Service,

98th Cong., Ist & 2nd Sess. (1983 and 1984); National Security Decision

Directive 84: Hearings Before the Senate Comm. on Governmental Af-

fairs, 98th Cong., Ist Sess. (1983); Review of the President's National

Security Decision Directive 84 and the Proposed Department of Defense

Directive on Polygraph Use: Hearing Before the Subcomm. on Legisla-

tion and National Security of the House Comm. on Government Oper-

Continued

7

ed with an appropriations-based moratorium, much like

the Act of Congress (Section 630) now being challenged.”

Accordingly, in 1984, the President suspended portions of

NSDD-84, with a promise to work with the Congress on

the matter.®

In 1986-7, ISOO decided to continue pushing its nondis-

closure initiative,? with forms including provisions creat-

ing a concept of punishment for disclosing “classifiable’’

information, whatever that might be, as distinct from

classified information. 1988 Congressional Report at 5.

Under this massive and expensive government-wide pro-

ations, 98th Cong., Ist Sess. (1983); House Comm. on Government Op-

erations, The Administration's Initiatives to Expand Polygraph Use

and Impose Lifelong Censorship on Thousands of Government Employ-

ees, H.R. Rep. No. 578, 98th Cong., Ist Sess. (1983); House Comm. on

Post Office and Civil Service, Anti-Censorship Act Report; House Com-

mittee on the Armed Services, Federal Polygraph Limitations and

Anti-Censorship Act of 1984 (H.R. 4681), H.R. Rep. No. 961, 98th Cong.,

2d Sess. (1984) (Part 2).

7 Section 1010, 97 Stat. 1017 (1983), Pub. L. No. 98-164. Senator Ma-

thias, the author of the amendment, described it on the floor of the

Senate thus:

Our amendment would require the administration to follow

the familiar formula of caution: stop, look, and listen. The ad-

ministration should stop implementation of the censorship

program.

... The Administration should look at the alternatives

which have been sugge ‘ed in both Senate and House hear-

ings. . . . The administration should listen to comments and

suggestions of both Houses of Congress... . Mr. President,

this amendment would freeze the status quo until April 15,

1984.

-129 Cong. Rec. 14283-84 (1983).

® Letter from Robert McFarlane to Chairwoman Schroeder (March

20, 1984), reprinted in Anti-Censorship Act Report at 55. (“Rather than

resume the legislative debate on the merits of NSDD 84, we would

prefer to work cooperatively with Congress to develop a mutually-ac-

ceptable solution to this problem.”’)

® The Solicitor General suggests incorrectly that Congress assailed

the initiative at the “last minute’’ from a drive to interfere “categori-

cally.’ Motion to Affirm at 20. It was ISOO that launched a late effort.

8

gram, 2.5 million present and former government employ-

ees and 1.1 million defense contractor employees were

being required to sign nondisclosure forms.!° In fresh

Congressional hearings, numerous official, expert and

public witnesses criticized these new forms and their po-

tential impact on government employees’ communica-

tions with Congress about military waste and wrongdo-

ing.'!

Congress responded, as in 1983, with a temporary ap-

propriations-based moratorium, as part of the govern-

ment-wide continuing resolution for Fiscal Year 1988.

Section 630 of Pub. L. No. 100-202, 100 Stat. 1329 (1987).

Whereas the Solicitor General suggests that Congress was

bent on “categorically” (Motion to Affirm at 16) interfer-

ing with Presidential prerogatives over classified informa-

tion, the reality is that Congress refused to fund only spe-

cific aspects of ISOO’s program. First, and foremost, the

statutory moratorium refused to fund the two particular-

ly flawed ISOO forms. The moratorium explicitly pre-

served the President’s authority to continue acting in this

context, just not with those two ISOO forms.**

10 See Congress and the Administration's Secrecy Pledges: Hearing

Before the Subcomm. on Legislation and National Security of the

House Comm. on Government Operations, 100th Cong., 2d Sess. 160

(1988) (GAO testimony) [hereinafter 1988 Hearings). In addition,

“453,000 current and former employees, excluding the CIA and NSA,

have signed SCI agreements [requiring prepublication review].” Jd. at

166. As former CIA Director Stansfield Turner testified, based on pre-

publication review of his own book, “the CIA is seriously short of staff

to conduct the prepublication reviews,” and “the bureaucracy to

handle hundreds of thousands of people’s writings would be immense

if it were not to be very siow.” Jd. at 104-105.

‘1 Classified Information Nondisclosure Agreements: Hearing Before

the Subcomm. on Human Resources of the House Comm. on Post Office

and Civil Service, 100th Cong., 1st Sess. (1987) [hereinafter 1987 Hear-

ings.

‘2 It provided that “No funds appropriated in this resolution or any

other Act for fiscal year 1988 may be used to implement or enforce the

agreements in Standard Forms 189 and 4193 of the Government .. .”

The moratorium stated th t no funds shall be used to “implement or

Continued

9

Second, the moratorium precluded forms equivalent to

the two named ones from control!ing “classifiable” infor-

mation, by refusing to fund:

any other nondisclosure policy, form or agreement

if such policy, form or agreement (1) concerns infor-

mation other than that specifically marked as clas-

sified; or, unmarked but known by the employee to

be classified; or unclassified but known by the em-

ployee to be in the process of a classification deter-

mination; [or] (2) contains the term ‘classifiable.’

Id. § 630 (1) and (2). Finally, the moratorium precluded

funding for any agreement which impeded rights to com-

municate with Congress.'* The conference report accom-

panying the statutory moratorium summed up the legis-

lative intent to prod further discussion between the two

branches. '*

enforce” the covered contracts, but goes on to state: “Provided, that

nothing in this section shall affect the enforcement of those aspects of

such nondisclosure policy, form or agreement that do not fall within

subsections (1)-(5).”” Jd.

13 It precluded funding for any agreement which impeded:

the rights of any individual to petition or communicate with

Members of Congress in a secure manner as provided by the

rules and procedures of the Congress; (4) interferes with the

right of the Congress to obtain executive branch information

in a secure manner as provided by the rules and procedures of

the Congress; (5) imposes any obligations or invokes any reme-

dies inconsistent with statutory law.

Id. § 630(3)-(5).

14 “The purpose of this amendment is to address serious concerns of

the Congress about the obligations imposed on government employees

by nondisclosure agreements. .. . The amendment identifies several

of these concerns and would bar the enforcement of such questionable

obligations during fiscal year 1988. . . . It is the intent of the authors

of this amendment, during the coming year, to examine the entire

issue of nondisclosure agreements, including prepublication review

and make appropriate responses to Executive Branch policy in this

area as needed.” Conference Report to Accompany H.J. Res. 396, H.R.

Conf. Rep. No. 1398, 100th Cong., lst Sess. 1179 (1987).

10

Meanwhile, the instant litigation reached the point of

rulings on cross-motions for summary judgment. In a pe-

culiar reversal of order, the single-judge district court’s

two rulings first addressed the highest-level questions of

the constitutionality of the enacted moratorium, and only

thereafter addressed whether there was any need for the

constitutional ruling. In the first ruling, on May 27, 1988,

American Foreign Service Association v. Garfinkel, 688 F.

Supp. 671 (D.D.C), Senior District Judge Oliver Gasch did

not address how much of the moratorium was at issue,

beginning his analysis with the naked assumption: “As-

suming that the Executive’s actions since enactment of

section 630 do not comply with the requirements of that

legislation,” Judge Gasch would determine whether “sec-

tion 630 unconstitutionally impinges on the President’s

discretion to regulate access to and disclosure of national

security information.” J.S. at 22a.'5 His decision simply

recited sweeping generalizations and a half-dozen judicial

opinions on the President’s role in national security, J.S.

at 22a-27a.

Two months later, when Judge Gasch focused on the

actual concrete controversy over the use of the term

“classifiable” in the nondisclosure agreements—Congress’

primary concern in the moratorium—he agreed with Con-

gress that the Executive Branch’s reliance on the concept

of “classifiable” information was itself unconstitutional.

J.A. at 93. The Administration had responded to the stat-

utory moratorium by starting to replace the prohibited

forms with new forms omitting the objectionable term

“classifiable.” !® The new forms made no explicit mention

of any objectionable requirement of pre-authorization by

superiors before employees could give information to Con-

‘5 The district court relegated the fact that the Executive Branch

had dropped the flawed forms prohibited by the moratorium to a foot-

note. Jd. at n.16.

‘6 On March 18, 1988, the Administration replaced Standard Form

4193 with a new contract (SF 4325) for those with access to Sensitive

Compartmented Information (SCI) which does not use the term ‘‘classi-

fiable.”’ J.A. at 58-62.

11

gress. After Judge Gasch’s ruling that struck down Sec-

tion 630, ISOO finished dropping the “classifiable” provi-

sions.'? Judge Gasch thereby vindicated the primary pur-

pose of the moratorium, but only after the self-contradict-

ing action of gratuitously striking down an Act of Con-

gress as unconstitutional.

Faced with the expiration of the one-year statutory

moratorium, the House Committee on Government Oper-

ations held important hearings on the issue on August 10,

1988, receiving official, public, and expert criticism of

Judge Gasch’s decision. Chairman Brooks “flou]nd it in-

credible that a court has concluded that a law—voted on

by the Congress and signed by the President—is an inap-

propriate method to set the balance between national se-

curity and first amendment concerns that these contracts

raise... .” 1988 Hearings at 2.1® With the size and cost

‘7 ISOO replaced SF 189 (and 189-A) on September 29, 1988 with a

new form (SF 312) which does not cover “classifiable” information. 53

Fed. Reg. 38,278-80 (1988) (to be codified at 32 C.F.R., Part 2003).

Plaintiffs and defendants may well raise subsidiary questions regard-

ing such matters as the period during which agencies continued to re-

quire the signing of old forms or had them signed with a mere adden-

dum, and the asserted inadequacy of efforts retrospectively to cure

past problems by notice or otherwise. Such questions do not provide a

sufficient reason to question the constitutionality of an Act of Con-

gress when its primary purpose has been sustained. See, e.g., Alejan-

drino v. Quezon, 271 U.S. 528, 535 (1926) (refusing to let “incidental

issue” of backpay prevent dismissal when “main question .. . has

become moot’’).

‘8 Admiral Stansfield Turner, former director of the CIA, testified

that the nondisclosure agreements were “not critical” to our national

security and that “other than in the CIA and NSA, we have gotten

along well for a long time without them.” 1988 Congressional Report

at 14. See also S. Turner, Secrecy and Democracy 290 (1985) (“Congress

should establish the period during which former employees must

submit their writings for clearance [under the censorship contract]’’).

The House Committee on Government Operations adopted the afore-

cited 1988 Congressional Report affirming that “it is within Congress’

authority to legislate restrictions and controls on nondisclosure agree-

ments.” Jd. at 20.

12

of the program growing,'® reenactment of the appropria-

_ tions moratorium was strongly supported,*° and was in

fact enacted the following month. Section 619, Pub. L. No.

100-440, 102 Stat. 1721. Notably, the new moratorium re-

fused to fund the old forms, cited by number, dropped by

ISOO during the moratorium, but did not mention the

new forms. Congress thus clearly aimed, not at categori-

cally wiping out all the President’s action in this context,

but at temporarily not funding particular ISOO forms

and specified abuses while continuing to study the issue.

B. Absence of a Concrete Case

The Court refuses generally to rule on moot cases,

County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979),

or on cases lacking “sufficient immediacy and reality.”

Golden v. Zwickler, 394 U.S. 103, 109 (1969). Beyond that,

the Court requires the highest level of concreteness in

cases, like this, in which one side or the other facially

challenges an Act of Congress. The Court applies a “rigid

insistence that the jurisdiction of federal courts is limit-

ed” when presented with challenges to “the validity of an

act of Congress.”” Ashwander v. Tennessee Valley Author-

ity, 297 U.S. at 345 (Brandeis, J., concurring).

Accordingly, the Court has repeatedly either held that

it would not consider abstract challenges to Acts of Con-

gress, or at least would remand for reconsidering whether

they remained concrete.?! See, e.g., Kremens v. Bartley,

1® See 1988 Hearings. According to the GAO testimony in the first

several months of 1988, 43,000 additional SF 189 contracts and 6,000

SF 4193 contracts were signed despite the moratorium. Jd. at 165-166.

2° 1988 Hearings at 15, 83, 189 (exchanges by key Members).

2! See also Watson v. Buck, 313 U.S. 387, 402 (1941) (“A law which is

constitutional as applied in one manner may still contravene the Con-

stitution as applied in another. Since ali contingencies of attempted

enforcement cannot be envisioned in advance of those applications,

courts have in the main found it wiser to delay passing upon the con-

stitutionality of all the separate phases of a comprehensive statute

until faced with cases involving particular provisions as specifically

applied to persons who claim to be injured.’’)

| it

13

431 U.S. 119, 134-35 (1977) (remanding for reconsider-

ation rather than resolving ‘unfocused’ constitutional

claim); Socialist Labor Party v. Gilligan, 406 U.S. 583,

587-9 (1972). “[T]here will be time enough [later] to con-

sider that problem in a factual context,” Nixon v. Admin-

istrator of General Services, 433 U.S. at 445.

This Court demonstrates the highest caution of all in

addressing separation of powers controversies in national

security contexts. Throughout the early 1970s, the Court

declined to decide numerous cases arising out of the Indo-

china War, including cases, like this one, concerning ap-

propriations-constraining moratoriums. See Holtzman v.

Schlesinger, 484 F.2d 1307, 1312-13 n.3 (2d Cir. 1973) (col-

lecting cases), cert. denied, 416 U.S. 936 (1974). Lower

courts have read this Court’s precedents as reflecting a

particular reluctance to resolve suits for injunctive relief

regarding national security. Adams v. Vance, 570 F.2d

950 (D.C. Cir. 1977). In a striking 1979 example, the Court

vacated for lack of jurisdiction the separation of powers

challenge to the termination of the Taiwan Treaty. Gold-

water v. Carter, 444 U.S. 996 (1979).

In light of these principles, and with the primary pur-

pose of the challenged Act of Congress vindicated, the

case no longer presents a live question. Judge Gasch cre-

ated the illusion of a concrete case only by proceeding in

reverse order with the case. First he struck down the Act

of Congress; then he declared unconstitutional the prac-

tices it has refused to fund. With those rulings viewed in

orderly sequence the case presents no reason for reaching

the question of the Act’s constitutionality. Surely, the

courts do not intend to rule on the Congress’ obligation to

fund unconstitutional programs which have ended.

Subsidiary issues about the moratorium simply do not

present enough of a concrete and live case for a ruling

like Judge Gasch’s. Of those subsidiary issues, the one

which came closest to any substance was Section 630’s re-

fusal to fund forms impairing the rights of government

employees to inform Congress through secure channels.

14

See Section 630 (3). For all the Solicitor General's claims

about Executive power to interfere with government em-

ployees providing information to Congress, the nondisclo-

sure forms do not incorporate those assertions in any ex-

plicit way. Rather, they simply require that classified in-

formation be provided only to persons “authorized to re-

ceive it.” J.A. at 60. Whatever abstract pronouncements

the Solicitor General may make, Congress understands its

own Members to be ‘‘authorized to receive” such informa-

tion through secure channels from government employ-

ees,?? and ISOO has not promulgated a form explicitly di-

recting government employees not to inform Congress.

Thus, ISOO’s nondisclosure forms do not bring an issue to

the point of concreteness needed for a ruling on the con-

stitutionality of an Act of Congress.

In the motion to affirm, the Solicitor General correctly

noted that “the Court does not have before it in this case

any concrete instance in which an employee ... has

been disciplined or denied further access to classified in-

formation because he made such a disclosure [to a

Member of Congress] without seeking or obtaining prior

approval.’ Motion to Affirm at 29. While there is much to

disagree with in the Solicitor General's arguments on the

merits, this point about the lack of a concrete case is well

taken. The absence of a case over a concrete individual,

the absence of an explicitly worded prohibition in the

nondisclosure forms, and the statutory moratorium’s lim-

ited wording, all reflect that the basis is not present in

this Court for such a ruling.?°

22 As discussed below, that understanding draws on two centuries of

active Congressional involvement in oversight of national security,

and on Congressional! involvement today in many of the most sensitive

of such matters, including intelligence matters.

23 Kleppe v. New Mexico, 426 U.S. 529, 546 (1976) (holding that

courts should not decide important constitutional questions on less

than an “adequate and full-bodied record”); Gilligan v. Morgan, 413

U.S. 1, 11 (1973) (declining “the assumption of a continuing judicial

review of substantive political judgments entrusted expressly to the co-

Continued

-

15

Until now, this Court has repeatedly cited Congression-

al oversight as a major reason why it can stay out of such

controversies. An example is one of the main comparable

cases of the past two decades raising the issue of chilling

of First Amendment rights in the intelligence context,

Laird v. Tatum, 408 U.S. 1 (1972). In Laird, Army Intelli-

gence established a data-gathering system which sur-

veilled domestic civilian political activity, and civilians

brought suit for injunctive relief. This Court found the

case insufficiently concrete for decision, not wanting ‘the

federal courts [to be] virtually continuing monitors of the

wisdom and soundness of Executive action’’ in that intel-

ligence context. Jd. at 15. Instead, the Court held that

“such a role is appropriate for the Congress acting

through its committees and the ‘power of the purse, ” id.,

and the Court stated its respect for the “concerns of the

. . . Legislative Branch{} in response to disclosure of the

Army surveillance activities.” Jd. When Judge Gasch

reached out and held that he would pass upon issues con-

cerning the “anti-leak” program, while disabling Con-

gress from doing so, he turned that philosophy of judicial

restraint on its head. Legislative Branch oversight, and

use of the power of the purse, were supplanted by judicial

action. The consequence would be precisely what Laird v.

Tatum predicted, namely, that those expecting sympa-

thetic judicial treatment would forsake the halls of de-

mocracy and bring their political disputes over these

issues to the life-tenured branch.

Few cases pose such broad, formless separation of

powers issues as this one. On the one hand is a Congres-

sional refusal to fund; on the other, a claim of inherent

Presidential prerogative. On the one hand are the power

of the purse and the power to probe; on the other, the

power of the sword. On the one hand is a Congressional

invocation of its authority for two centuries to legislate

regarding government information, to secure information

ordinate branches of government”); Laird v. Tatum, 408 US. 1, 15

(1972); Rescue Army v. Municipal Court, 331 U.S. 549, 584-85 (1947).

|

| 16

for itself from government employees, and to decide what

ograms to fund; on the other, Presidential powers relat-

ing to classification. Deciding the constitutionality of this

Act of Congress means that extensive fields of interaction

hitherto left to Congress and the President will be judi-

cialized. A whole area of national security into which the

courts have not ventured will be invaded. Ail this will be

done without anything even remotely resembling an ade-

quate record.2* Under the circumstances, the Court

should not rule on momentous constitutional issues.

Il. CONGRESS MAY LEGISLATE ABOUT GOVERNMENT INFORMA-

TION, PARTICULARLY ABOUT PROGRAMS TO WITHHOLD IN-

FORMATION FROM CONGRESS ITSELF, AND MOST PARTICU-

LARLY MAY DECIDE WHETHER TO APPROPRIATE FOR SUCH

PROGRAMS

A. Congress and the Executive Share Authority Over Na-

tional Security Generally

If the Court reaches the constitutional challenge

against the Act of Congress urged by the Executive

Branch, it should recognize the constitutional and histori-

cally-confirmed authority of Congress in this context. As

noted by Youngsiown Sheet & Tube Co. v. Sawyer, 343

U.S. 579, 637-638 (1952) (Jackson, J., concurring), which

furnishes the test for such separation of powers chal-

lenges (see Dames & Moore v. Regan, 453 U.S. 654, 669

(1981)), “Presidential powers are not fixed but fluctuate,

24The case concerns no specific incident, and therefore no particu-

lar penalized individual, no item of information provided to (or with-

held from) Congress, no specific Congressional entity granted or denied

information, and not even any explicit language in the nondisclosure

statement on key points. Not only did Judge Gasch hold no trial or

even an evidentiary hearing, deciding the case on conclusory agency

affidavits appended to summary judgment motions, but as discussed

above, he completely ignored the six-year history in which Congress

had held hearing after hearing, issued reports, held floor debates, and

thereby developed its own extensive legislative record. That legislative

record, having received no study below, does not come to this Court

having been at all analyzed judicially.

17

depending upon their disjunction or conjunction with

those of Congress.” Youngstown, 343 U.S. at 635. In chal-

lenging an Act of Congress, the Executive’s “power is at

its lowest ebb, for then he can rely only upon his own

constitutional powers minus any constitutional powers of

Congress over the matter.” Jd. at 637. This Court would

strike down an Act of Congress only on the ground of

such “exclusive presidential control’? and “by disabling

the Congress from acting upon the subject. Presidential

claim to a power at once so conclusive and preclusive

must be scrutinized with caution.” Jd., at 635-38. See Cole

v. Young, 351 U.S. 536, 558 n.20 (1956).

Consequently, Acts of Congress struck down by the

Court on separation of powers grounds have all concerned

Congressional post-enactment mechanisms—such as legis-

lative vetos, legislative appointments, or legislative re

movals—found to violate specific provisions of the Consti-

tution.*> This Court has never overturned any statute on

the separation of powers theory embraced by the district

court that the subject was so exclusively reserved for the

President as to disable the Congress from acting. When

the district court took the step of striking down this stat-

ute on the grounds that the President had such exclusive

power that Congress could not refuse to appropriate for

25 Statutes which have been struck down by this Court on separa-

tion of-powers grcunds have been determined to have run afoul of spe-

cific textual constitutional prohibitions. See, eg, Immigration and

Naturalization Service v. Chadha, 462 U.S. 919, 946-47 (1983) (require-

ments for bicameralism and presentation to the President under arti-

cle I, §7, which “the draftsmen took special pains to assure. . . could

not be circumvented’’); Buckley v. Valeo, 424 U.S. 1 (1976) (the appoint-

ments clause under Article II is a “cognate provision{ }] of the docu-

ment.’’); Bowsher v. Synar, 478 U.S. 714 (1986) (assignment of executive

functions to an officer removable by Congress). Compare Morrison v.

Olson, 108 S. Ct. 2597 (1988); Commodity Futures Trading Commission

». Schor, 478 U.S. 833 (1986); Young v. United States ex rel. Vuitton et

Fils, S.A., 481 U.S. 787 (1987).

18

this program, J.S. at 27a, it acted absolutely without a

shred of historical precedent.?®

In the realm of national security, the Constitution

simply does not provide the President with the ‘“conclu-

sive and preclusive” role required to completely disable

Congress from “acting upon the subject.’’ Only two years

ago, this Court recognized the “premier role which both

Congress and the Executive play in this field.” Japan

Whaling Assn. v. American Cetacean Society, 478 U.S. at

230. In that case, like this one, the Solicitor General

urged broad” Executive powers on this Court, invoking

dicta out of context from cases involving clear Presiden-

tial prerogatives (such as recognition of foreign govern-

ments). The Speaker and Bipartisan Leadership Group

appeared as amicus curiae in the case, properly present-

ing to the Court the large role of Congress even in inter-

national relations. Soundly, the Court accepted the

amicus position, with its emphasis that “both Congress

and the Executive’”’ play that role.

It is the Congress—not the President—which the Con-

stitution empowers “to declare war,” art. I, §8, cl. 1; to

“regulate Commerce’”’ including foreign commerce, art. I,

§8, cl. 3; “to raise and support armies,” art. I, § 8, cl. 12,

“to provide and maintain a navy,” id, cl. 13, “to make

rules for the Government and regulation of the land and

naval forces,” id., cl. 14, and “to provide for organizing,

arming’-and disciplining, the militia,” id., cl. 16.27 Of

course, the President possesses his own powers regarding

national security, such as serving as “Commander-in-

Chief’ ?® and his duty to “take Care That the Laws be

2° See 1988 Congressional Report; see also 1988 Hearings, 1113-165

(statements on unprecedented nature of district court decision by Mi-

chael Glennor, Professor of Law, University of California, Davis and

Harold Bruff, Professor of Law, the University of Texas).

27 See U.S. Const., art. I, § 8, cl. 18 (Necessary and Proper Clause).

*8 This power is circumscribed by the appropriations power. It

“would amount to nothing more than the supreme command and di-

rection of the military and naval forces . . . while that of the British

Continued

19

faithfully executed.” 2° Art. II., § 2, cl. 1 and § 3. Howev-

er, these manifestly do not render the subject in question

exclusively Presidential in nature, but merely show that

where matters of war, armies, and security are con-

cerned, there is a shared realm in which both Congress

and the President act.

B. Congress May Legislate Regarding Government Infor-

mation, Particularly About Withholding From Con-

gress Information About Waste and Wrongdoing

Congress has manifest authority to regulate informa-

tion and document handling by federal employees. The

statutory “regulation of material generated in the Execu-

tive Branch has never been considered invalid as an inva-

sion of its [executive] autonomy.” Nixon v. Administrator

of General Services, 433 U.S. at 445. That case upheld the

Presidential Recordings and Materials Preservation Act,

which regulated the papers of former President Richard

Nixon, against a separation of powers challenge because

King extends to the declaring of war and te the raising and regulating

of fleets and armies,—all which, by the constitution under consider-

ation, would appertain to the legislature.’ The Federalist, No. 69 at

449 (A. Hamilton) (emphasis in original). As Justice Jackson indicated,

“While Congress cannot deprive the President of the command of the

Army and Navy, only Congress can provide him an Army or Navy to

command.” And Congress, because it is empowered to make rules for

the “Government and Regulation of army and naval forces” may “‘im-

pinge .. . to some unknown extent . . . upon even command func-

tions.”” Youngstown, 343 U.S. at 644.

2° The “Executive Power” is not taken as a grant in bulk of other

powers. Youngstown, 343 U.S. 640-41 (Jackson, J., concurring). The

“faithful execution” clause, contrary to claims by the Executive, does

not constitute a positive grant of power for the President, but instead

a limit on what the Executive may do with its own powers. Kendall v.

United States ex. rel. Stokes, 37 U.S. (12 Pet.) 524, 613 (1838); Youngs-

town, 343 U.S. at 587 (majority opinion); id. at 610 (Frankfurter, J.,

concurring); id. at 646 (Jackson, J., concurring); National Treasury

Employees Union v. Nixon, 492 F.2d 587, 604 (D.C. Cir. 1974). See

Ameron, Inc. v. U.S. Army Corps of Engineers, 610 F.Supp. 750, 755

(D.N.J. 1985) (history of clause), aff'd, 809 F.2d 979 (3d Cir. 1986), cert.

dismissed, 109 S. Ct. 297 (1988).

20

the Court did not believe the Act prevented the Executive

Branch from “accomplishing its constitutionally assigned

functions.” Jd., at 443.

Two years later, in Environmental Protection Agency v.

Mink, 410 U.S. 73 (1973), the Court confirmed that “clas-

sified’ or national security information is not insulated

from Congressional control. Discussing the Executive

Branch’s classification system, the Court indicated “Con-

gress could certainly have provided that the Executive

Branch adopt new procedures or it could have established

its own procedures—subject only to whatever limitations

the Executive privilege [regarding Presidential confiden-

tial communications] may be held to impose upon such

Congressional ordering.” Jd. at 83 (emphasis added).*°

No short list could do justice to the extensive precedent

for Congressional regulation of government information.

As noted in Nixon v. Administrator of General Services,

433 U.S. at 445:

of course, there is abundant statutory precedent for

the regulation and mandatory disclosure of docu-

ments in the possession of the Executive Branch.

See, e.g., the Freedom of Information Act, 5 U.S.C.

§ 552 (1970 ed. and Supp. V); the Privacy Act of

1974, 5 U.S.C. § 552 (a) (1970 ed., Supp. V); the Gov-

ernment in the Sunshine Act, 5 U.S.C. § 552b (1976

ed.); the Federal Records Act, 44 U.S.C. §2101 et ©

seq.; and a variety of other statutes, e.g., 13 U.S.C.

§§ 8-9 (census data); 26 U.S.C. § 6103 (tax returns).

3° The executive privilege, to the extent (if any) it applies to the

Congress, would not extend throughout the Executive Branch’s mil-

lions of employees. See United States v. Nixon, 418 U.S. 638 (1974) (ex-

ecutive privilege only for Presidential communications).

21

Such Congressional regulation necessarily extends to

classified records and information, and there is a compre-

hensive network of legislation for classified informa-

tion.*! The classification system is impotent without that

network of legislation, for Congressional statutes—not an

administrative system—establish the criminal offenses

for security violations, their conduct and intent stand-

ards, the judicial procedures, the weight to be given to

the fact of classification, and the punishments for such of-

fenses.*2 When civil liberties and national security must

be balanced in this context, ‘[t]he need for a legislative

judgment is especially acute,’ United States v. Robel, 389

U.S. 258 (1967); Kent v. Dulles, 357 U.S. 116, 128 (1958).

See New York Times Co. v. United States, 403 U.S. 713

(1971).38

31 See, e.g., the Freedom of Information Act, 5 U.S.C. § 552(bX1); the

Privacy Act, 5 U.S.C. § 552a; the Central Intelligence Agency Informa-

tion Act, Pub. L. No. 98-447, 98 Stat. 2209 (see CIA v. Sims, 471 USS.

159, 168 (1985)); the Foreign Intelligence Surveillance Act, 50 U.S.C.

§ 1801-1811; the Classified Information Procedures Act, 18 U.S.C. § 1-

16; and above all the espionage laws, 18 U.S.C. 792, et seg.

32 Similarly, the Freedom of Information Act records that Congress

has set the test for withholding of documents from the public: whether

documents are “in fact properly classified,” 5 U.S.C. § 552b(1), with de

novo judicial review where appropriate. The Executive Branch’s high-

flying citations to the discussion in Department of the Navy v. Egan,

108 S. Ct. 818 (1988), conspicuously omit the key qualification that def-

erence to the Executive occurs “unless Congress specifically has pro-

vided otherwise.” Jd. at 625.

33In New York Times, Justice White, in his concurrence, examined

in detail the laws governing espionage, concluding “that Congress has

addressed itself to the problems of protecting the security of the coun-

try and the national defense from unauthorized disclosure of potential-

ly damaging information”, 403 U.S. at 740 (citations omitted). See also

id. at 718 (Black, J., concurring) (criticizing the Executive for ‘“‘not

even attempt{ing] to rely on any Act of Congress” and acting “even

when the representatives of the people in Congress have adhered to

the command of the First Amendment’); id. at 722 (Douglas, J., con-

curring) (““Thus, Congress has been faithful to the command of the

First Amendment in this area.”’)

22

Moreover, Congress can legislate regarding executive

programs aimed at withholding information from Con-

gress itself. As this Court has recognized, Congress’s abili-

ty to oversee and investigate the executive branch is an

essential attribute of the legislative function.** History

provides the best guide to this authority, and strongly

confirms it. Starting in 1792, the House of Representa-

tives voted to create a special committee to investigate

the Army’s disastrous military expedition against Indian

tribes in the Northwest Territory.*® The St. Clair Investi-

gation examined numerous witnesses and documents that

would be classified today, concerning procurement waste,

military readiness, and the communication from Secre-

tary of War Knox to Major General St. Clair, conveying

President Washington’s orders. Congress Investigates at

11-13.

From that first Congressional investigation until today,

it is reported that “Congressional Committees have exam-

ined the conduct of all the wars in which the United

States has engaged except the Spanish-American

War. .. .” Galloway, The Investigative Function of Con-

gress, 21 Am. Pol. Sci. Rev. 47, 48 (1927).2® Most recently,

34 Barenblatt v. United States, 360 U.S. 109, 111 (1959) (Congress’s

investigatory powers are “as penetrating and far-reaching as the po-

tential power to enact and appropriate under the Constitution.”’);

McGrain v. Daugherty, 273 U.S. 135, 175 (1926); Eastland v. United

States Servicemen's Fund, 421 U.S. 491 (1975).

35 A. Schlesinger, Congress Investigates: 1792-1974 7 (1975) [herein-

after Congress Investigates); T. Taylor, Grand Inquest: The Story of

Congressional Investigations 35 (1955). James “Madison, who had

taken an important part in framing the Constitution only five years

before, and four of his associates in that work, were members of the

House of Representatives at the time, and all voted for the inquiry.”

McGrain v. Daugherty, 273 U.S. at 161.

36 See R. Berger, Executive Privilege: A Constitutional Myth, 44, n.

171 (1974) (To cite only a few early examples, the House scrutinized

the Treasury Department (1800 and 1824), the territorial government

of Mississippi (1800), the War Department (1809 and 1832), the conduct

of General James Wilkinson (1810), government clerks generally

Continued

23

select committees of the Senate and House held exhaus-

tive hearings into intelligence operations of the Iran-

Contra affair.*7

During this time, programs to block providing of gov-

ernment employee information to Congress have received

decisive responses. Around the turn of the century, the

Theodore Roosevelt and Taft Administrations imposed a

series of gag orders on federal employees prohibiting

them from communicating with Congress on grievance °°

or other matters.*® Congressional response was intensely

(1818), the Post Office (1820 and 1822), the Bank of the United States

(1832 and 1834), the New York Customs House (1839), the conduct of

Captain J.D. Elliott commanding a naval squadron in the Mediterra-

nean (1839), the Commissioner of Indian Affairs (1849), the Secretary

of Interior (1850), the Smithsonian Institution (1855). In the meantime,

the Senate had [looked into General Andrew Jackson’s conduct of the

Seminole Wars in Florida (1818), the Internal Revenue Bureau (1828),

the Post Office (1830), and John Brown’s Raid at Harper's Ferry

(1859).

Similarly, a joint Senate-House Committee was established for over-

sight during the Civil War. Congress Investigates, p. 76-77. As in the

St. Clair investigation, that Committee reviewed supplies, transporta-

tion, morale, treaties, and command functions involved in the prosecu-

tion of the war by the Army. Jd. at 76-94.

87 Report of the Congressional Committees Investigating the Iran-

Contra Affair, S. Rep. No. 216 & H. Rep. No. 433, 100th Cong., Ist

Sess. (1987).

88 The Roosevelt gag order prohibited communicating to Congress

“either directly or indirectly, individually or through associations, to

solicit an increase of pay or to influence or attempt to influence in

their own interest any other legislation.” S. Spero, Government As Em-

ployer 123 (1948). The first gag order was issued on January 31, 1902.

Exec. Order No. 163, reprinted in 48 Cong. Rec. 5223 (1912). It was re-

issued on January 25, 1906 and amended to include the independent

agencies as well as the executive departments.

8° In 1909, President Taft supplemented the Roosevelt orders by ex-

tending the prohibition from communicating with Congress about job

grievances to cover “Congressional action of any kind’’ and by adding

a prohibition against employees “ ‘Respond{ing] to any request for in-

formation from either House of Congress, or any Committee of either

House of Congress, or any member of Congress except through and as

authorized by the head of his department.’ Executive Order No. 1142

of November 26, 1909, reprinted in 48 Cong. Rec. 7513 (1912).

24

negative.*° The House voted 132 to 1 for a provision in

the postal appropriations bill for 1913 to allow postal

workers to communicate to Congress.*! As Representa-

tive Lloyd warned, “[i]f no Government employee is per-

mitted to speak, excepting through his department chiefs

end the department chief through the Cabinet officer. . .

then there is no possible way of obtaining information.”

Id. at 10671. The Senate expanded the House provision,

limited to postal workers, to guarantee all civil servants

the absolute right to communicate with Congress, which

became section 6 of the Postal Appropriations Act of

1913, better known as the Lloyd-LaFollette Act:

The right of persons employed in the Civil Service

of the United States, either individually or collec-

tively to petition Congress or any member thereto,

or to furnish information to any House of Congress

or to any Committee or Member thereof, shall not be

denied or interfered with.

5 U.S.C. § 7211 (emphasis added).

*° Congress believed the gag orders to be an affront to the Constitu-

tion and the “sacred rights” of federal employees under the First

Amendment. 48 Cong. Rec. 4493 (1912) (Remarks of Rep. Moon). See

also id. at 5080 (Remarks of Rep. Rouse), 5203 (Remarks of Rep.

Prouty), 5626 (Remarks of Rep. Fowler), and 4238 (Remarks of Rep.

Blackman) (gag orders represented ‘“‘suspension of the Constitution.’’).

Further, the gag orders were described as “un-American and unright-

eous,” id. at 5223 (Remarks of Rep. O’Shaunessy), “obnoxious” and

“galling,” id. at 5235 (Remarks of Rep. Buchanan), “un-Americen, un-

democratic, despotic, and cruel.” Appendix to 48 Cong. Rec. 154

(speech of Rep. Kinkian). Government employees were ‘handicapped,

shackled, and gagged’”’ by the Administration’s orders. Jd. at 5157 (Re-

marks of Rep. Evans) and ‘“‘chocked and tied hand and foot,” id. at

4656 (remarks of Rep. Calder). The Administration was a “tyranny’”’

and ‘“‘petty despotism.” Jd. at 5157 (Remarks of Rep. Rouse).

*! 48 Cong. Rec. 5639 (1912).

25

The Civil Service Reform Act of 1978,*? its legislative

history,** and the focus on protecting particular employ-

ees ** make clear that protection of government employ-

ees who inform Congress necessarily applies to all infor-

mation, whether classified or not. Congress has been ex-

plicit in protecting the government employees it depends

upon for important national security information.*®

*2 The Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat.

1114 includes specific provisions to protect government whistle-blowers

from agency reprisals for their disclosures of illegal, improper, or

wasteful government activities. See 5 U.S.C. § 2302(bX8). Although Con-

gress recognized the executive's classification system by not protecting

such disclosure to the public, disclosures of such information to appro-

priate governmental officials are protected. Jd. Further, the statute

preserves Lloyd-LaFollette: ‘“This subsection shall not be construed to

authorize the withholding of information from the Congress or the

taking of any personnel action against an employee who discloses in-

formation to the Congress.” 5 U.S.C. § 2302(b).

*3 “(Bly placing limitations on the kinds of information any employ-

ee may publicly disclose without suffering reprisal, there is no intent

to limit the information an employee may provide to Congress or to

authorize reprisal against an employee for providing information to

Congress. Neither title I nor any other provisions of the Act should be

construed as limiting in any way the rights of employees to communi-

cate with or testify before Congress.” Conference Report to Accompany

the Civil Service Reform Act of 1978, H.R. Conf. Rep. No. 1717, 95th

Cong, 2d Sess. 132 (1978).

*4 One impetus for the statute was the case of Ernest Fitzgerald,

who testified before a Congressional subcommittee in November of

1968 about a two billion dollar overrun on procurement of the C-5A

transport aircraft, and was subsequently harassed by the Department

of Defense. See Hearings Before the Subcomm. on Economy in Govern-

ment of the Joint Economic Committee, 90th Cong., 2d Sess. 200-202

(1968); Hearings Before the House Comm. on Post Office and Civil Serv-

ice, 95th Cong., 2d Sess, 331-335, 529-551, 571-580 & 714-745 (1978)

(testimony by Fitzgerald and others leading to the 1978 act); 1987 Hear-

ings at 17-20, 27-32; Harlow v. Fitzgerald, 457 U.S. 800 (1982).

*5 Section 846 of the National Defense Authorization Act, Fiscal

Year 1989, Pub. L. No. 100-456, 102 Stat. 1918, 2027 (protections for

military employees who inform Congress amended to specifically cover

disclosures of classified information). Federal employees’ communica-

tions, not filtered through superiors, are of critical importance to Con-

Continued

26

C. Congress Decides Whether to Withhold Appropriations

The Constitution confers on Congress the unfettered

power to decide whether to withhold appropriations from

a government program by providing that “No money

shall be drawn from the Treasury, but in consequence of

Appropriations made by law,” U.S. Const., art. I, § 9, cl. 7.

Parliament’s same power of the purse, the antecedent of

this authority, included the power to curb Executive ini-

tiatives in foreign affairs, defense, or intelligence by re-

fusals to fund them,*® and the Framers had most earnest-

ly championed Congress’s exercise of a similar power.*?

gress. Gravel v. United States, 408 U.S. 605, 630 (1972) (Stewart, J., dis-

senting in part) (“in preparing for legislative hearings, debates, and

roll calls, a Member of Congress obviously needs the broadest possible

range of information. Valuable information may often come from

sources ir. the Executive Branch . . . [aJnd informants such as these

may be willing to relate information to a Congressman only in confi-

dence’’).

46

The provision [appropriations clause of the Constitution] was

framed against the backdrop of 150 years of struggle between

the King and Parliament for control over the purse, often cen-

tering on military matters. In 1624 the House of Commons for

the first time conditioned a grant of funds to the king. The

Subsidy Act of that year prohibited the use of any military

monies except for financing the navy, aiding the Dutch, and

defending England and Ireland. Two years later Charles I at-

tempted to wage war without popular support, but Parliament

promptly denied him funds to conduct it... .

1988 Hearings at 145-46 (Statement of Professor Glennon) (footnotes

omitted).

47 While the appropriations power is not confined to foreign policy

and security issues, see The Federalist, No. 58 (J. Madison) (the appro-

priations power represents ‘the most complete and effectual weapon

with which any constitution can arm the immediate representatives of

the people, for obtaining a redress of every grievance, and for carrying

into effect every just and salutary measure’’):

Meeting in Philadelphia in 1787, the Framers were well

aware of the tradition of parliamentary power over the purse

and its use to check unwanted ‘national security’ activities.

Continued

27

Any notion that the President’s powers override Con-

gress’s authority to withhold appropriations utterly defies

the Framers’ most basic doctrine of separation of powers:

as George Mason stated it, “the purse and the sword

should not be in the same hands.” M. Farrand, 1 The

Records of the Federal Convention of 1787 at 144 (1937).

This is the “most important single curb in the Constitu-

tion on presidential power.” E. Corwin, The Constitution

and What It Means Today 101 (1973 ed.).

Congress established from the first years of the Repub-

lic through the twentieth century that it would decide, by

granting or withholding appropriations, whether to pro-

ceed with such programs as treaty implementation and

military preparations.*® As a leading commentator

summed up the subsequent experience:

Congress is free to refuse to appropriate funds re-

quired for the execution of treaties; it can snub the

. . . Madison considered it ‘particularly dangerous to give the

keys of the treasury, and the command of the army, into the

same hands.’ ... Accordingly, the Framers chose, in the

words of Jefferson, to transfer the war power ‘from the execu-

tive to the legislative body, from those who are to spend to

those who are to pay.’

1988 Hearings at 145-46 (Statement of Professor Glennon) (footnotes

omitted). See Wolfson, Js a Presidential Item Veto Constitutional? 96

Yale L.J. 838, 841-44 (1987).

*8 E. Nobleman, Financial Aspects of Congressional Participation in

Foreign Relations, Ann. of the Am. Acad., Sept. 1953, at 1245, 1246-49.

As m ‘itary Chief of Staff Omar Bradley said, “Under our form of gov-

ernment, the military policy of the United States is shaped by Con-

gress not by the Armed Forces. . . because . . . Congress controls the

appropriations which in the final analysis . . . control the military

policy... .”” Hearings on Military Functions, National Military Estab-

lishment Appropriations Bill for 1949 (Part 3), House Comm. on Appro-

priations, 80th Cong., 2d Sess. 5, 14 (1948). See E. Huzar, The Purse

and the Sword: Control of the Army by Congress through Military Ap-

propriations 1933-1950 (1950) (describing military appropriations provi-

sions on organization, personnel, and finance). “Much more common

in the military supply measures than affirmative legislation on [mili-

tary] organizations have been limitations on appropriations.’ Jd. at

211.

28

/

President’s requests for funds needed tc finance

long-range, jiarge-scale military, economic, and

technical assistance programs; it can provide au-

thorizations and funds . . . contrary to the Presi-

dent’s policies; it can deny or limit the amount of

money which the United States can contribute to

international organizations, either as regular

annual contributions or as — payments to

operating programs; and it eny funds to

enable the United States to Bn Prove in interna-

tional meetings and conferences.

Nobleman, supra, at 145-46.

This Court established early that the President’s

powers in wartime did not extend beyond statutory limi-

tations. Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804);

Gelston v. Hoyt, 16 U.S. (8 Wheat.) 246 (1818). One nine-

teenth century example of an appropriations law curb

was the “posse commitatus” law in 1878, enacted as a

provision on the Army appropriations bill.*® That appro-

priation law provision established the fundamental legal

division between the military and civilian realms which

has endured ever since. Of course, even the limited intel-

ligence operations in the era before World War II, like all

government activities, responded to control by appropria-

tions.5°

—

——_

*® In its current form, the law prohibits the “willful{] use [] [of] any

part of the Army or the Air Force as a posse comitatus or otherwise to

execute the laws,” 18 U.S.C. § 1385. -

5° One prominent example was the predecessor to today’ 8 National

Security Agency, the post-World War I “Black Chamber” which moni-

tored diplomatic telegrams. As its commander described, it came into

existence through funds “which Military Intelligence managed to

obtain from Congress after taking some of the leaders into. their confi-

dence. I was told that there was a joker in the Department of State

special funds: they could not legally be expended within the District of

Columbia.”’ Final Report of the Senate Sel. Comm. to Study Govern-

mental Operations with Respect to Intelligence Activities, S. Rep. No.

755, 94th Cong., 2d Sess., Book VI 116-17 (1974). Another example was

the World War II intelligence operation, the Office of Strategic Serv-

ices (““OSS’’), the directive-of which stated that “all funds to operate

Continued

29

The end of World War II brought a dramatic increase

in the peacetime expenditure of appropriations for na-

tional security programs, including foreign aid, defense,

and the newly expanded intelligence operations. Annual

appropriations for these programs involved numerous

Congressional decisions on whether to fund programs,

with many such decisions framed as limitations on the

funds provided in the bill. These include the fundamental

charter for covert operations, the Hughes-Ryan Amend-

ment of 1974:

No funds appropriated under the authority of this

chapter or any other Act may be expended by or on

behalf of the Central Intelligence Agency for oper-

ations in foreign countries . . . unless and until the

President [makes a] finding . . . and reports, in a

timely fashion . . . to the appropriate committees of

the Congress. .. .

Pub. L. No. 93-559, § 32, 88 Stat. 1804 (1974); 22 U.S.C.

§ 2422 (emphasis supplied). Other examples of appropria-

tion limitations in the defense context include the limita-

tions of the early 1970’s which forbade further American

expenditures on the war in Indochina; the Clark Amend-

ment, which forbade further expenditures on war in

Angola; and the Boland Amendment, which forbade fur-

ther expenditures on war in Nicaragua.®!

OSS must come from Congress, primarily the House and Senate Ap-

propriations Committees.”’ Jd. at 141-42.

Much is made by the Executive Branch of the use of confidential

funds by Presidents for spy activity. Totten v. United States, 92 US. (2

Otto.) 105 (1875). Such arrangements simply reflect that Congress has

established a confidential funding system, rather than any displace-

ment of the appropriations power. L. Fisher, Presidential Spending

Power 205-13 (1975) (Congressional establishment, oversight, and

repeal of confidential funding systems from 1789 on).

5! The Indochina War provisions are discussed in T.M. Franck & E.

Weisband, Foreign Policy by Congress 13-31 (1979). The Clark Amend-

ment was section 404 of Pub. L. No. 94-329, 90 Stat. 757 (1976), codi-

fied at 22 U.S.C. § 2293, repealed by section 811 of Pub. L. No. 99-83,

99 Stat. 264 (1985), codified at 22 U.S.C. § 2293 note; it is discussed in

Continued

30

A judicial ruling striking down such an Act of Congress

would have disastrous implications, for the Judiciary

would then be called into any number of separation of

powers disputes. Congress places appropriation limita-

tions on the areas in which United States combat or

covert operations may occur; executive agency interven-

tionists may assert inherent power to override such

limits. Congress establishes the military command struc-

ture, such as the unified joint commands, and prescribes

reforms after procurement scandals; the military services

may balk. Congress imposes restraints on intelligence

agencies, such as concerning CIA operations domestically,

or technical surveillance of domestic citizens; the intelli-

gence agenvies may want to shake off these shackles.

Until now, the courts have never overturned an appro-

priations statute by finding that it impermissibly re-

strains the President. Once this Court strikes one down,

the agencies would find the undefined extent of inherent

Executive power a sufficient basis for a limitless number

of requests for the Judiciary to take on the governing of

national security. A greater violation of judicial restraint,

and a greater injury to the democratic system of checks

and balances, than such a ruling, can hardly be imagined.

CONCLUSION

The Court should either hold that the case no longer

presents a concrete basis for a ruling, or vacate the dis-

trict court’s decision and remand for reconsideration.

However, if the Court reaches the merits, it should apply

principles which leave Congress its proper and ample

role.

T.M. Franck & E. Weisband at 46-55. There were a number of differ-

ent Boland Amendments in the mid-1980s, discussed in Report of the

Congressional Committee Investigating the Iran-Contra Affair at 395-

405.

31

Respectfully submitted,

STEVEN R. Ross (Counsel of Record),

General Counsel to the Clerk

CHARLES TIEFER,

Deputy General Counsel to the

Clerk

RoBERT MICHAEL LONG,

Assistant Counse! to the Clerk

U.S. House of Representatives,

The Capitol, H-105,

Washington, D.C. 20515

(202) 225-9700

Attorneys for the Speaker and

Leadership Group

FEBRUARY 1989.