Opposition Brief — United States v. Weatherhead

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QUESTION PRESENTED

Whether the first court of appeals’ decision under

Exemption 1 of the Freedom of Information Act (“FOIA”)

to interpret and apply a new and significantly less protec-

tive executive order governing classification properly

rejected the government's generalized and conclusory

statements of possible harm involving the release of a

single letter whose content is admittedly innocuous

TABLE OF CONTENTS

Page

QUESTION PRESENTED. .............csceecesccees i

TABLE GP RAFTS 6 voun's cn betvdrssececeadea iii

STATEMENT OF THE CASE..............0ceeeseees 1

SUMMARY OF ARGUMENT...............66600055 16

pu 5 |, PEERY EP pe See pera oe eh 19

A. The Decision Below Does Not Conflict With

the Decisions of This Court or Other Courts of

Appeal. .....cccrncvnscerccesccecvesusessesen 19

B. The Ninth Circuit Correctly Interpreted and

Applied the New and Significantly More Strin-

gent Requirements For Classification in the

Clinton Executive Order ............665.0005. 24

C. This Case Constitutes a Poor Vehicle To

Address the Issues Raised in the Petition.... 30

Ce %., -iis airs deo in be chneeedubeed onawe 30

TABLE OF AUTHORITIES

Page

Cases

Arcadia v. Ohio Power Co., 498 U.S. 73 (1990) ........ 29

Bowers v. Department of Justice, 930 F.2d 350 (4th

Cir.), cert. denied, 502 U.S. 911 (1991).............. 21

CoA wm Sims, GP US. WD CIOGS) inc ccs cece ences 17, 23

Cleveland v. United States, 329 U.S. 14 (1946)......... 29

Department of the Air Force v. Rose, 425 US. 352

i, ihn k Wad ceca dedi’ sap Mes 96 ON vclas 400d en 1

Department of Defense v. F.L.R.A., 510 US. 487

DD Gah oUC naw cttlceaekhb ah hobs oh seen ben’ cdke 1

Department of Justice v. Reporters Comm. for Freedom

of the Press, 489 U.S. 749 (1989).................. 1,3

Department of Justice v. Tax Analysts, 492 U.S. 136

SE Sinbad in cdie de akDbcteethae ees 6p bby be onees ox 1

Department of Navy v. Egan, 484 U.S. 518 (1988)

hp Oh REPRE dine Shadi hwe Uae he Amada bes cence on ve 16, 22, 23

Department of State v. Ray, 502 US. 164 (1991)........ 2

Doherty v. Department of Justice, 775 F.2d 49 (2d Cir.

Met 66: 5h adhd ebuheebsde hans b'2c Un aeebndeveccace 21

EPA v. Mink, 410 U.S. 73 (1973)............. 1, 2, 16, 22

Halpern v. FBI, No. 98-6035, 1999 U.S. App. LEXIS

13700 (2d Cir. Jume 22, 1999) ........ 2.60... 6665.. 23

In re Romeo, No. 87-0808RC, 1987 U.S. Dist. LEXIS

12595 (D. Mass May 1, 1987) . ee Oe

Jones v. FBI, 41 F.3d 238 (6th Cir 1994) ..........19, 20

Krikorian v. Department of State, 984 F.2d 461 (D.C

Se Ms a a A 20, 21

TABLE OF AUTHORITIES - Continued

Page

Martin v. OSHRC, 499 U.S. 144 (1991)............... 25

McDonnell v. United States, 4 F.3d 1227 (3d Cir.

BOOED san case dws cea cicbecuhséns@eeetaneiabbies «>< 20

Miller v. Department of State, 779 F.2d 1378 (8th Cir.

DOs Sia véics cos dacvegheskovs cedhncauratwen<eps ens 21

Press-Enterprise Co. v. Superior Court, 464 U.S. 501

SURED << vnpnsivcccseudanbbicancvedbeakeheauks ebiond 27

Price v. Forrest, 173 U.S. 410 (1899). ................. 26

Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978) ......... 3

Summers v. Department of Justice, 140 F.3d 1077

CE Ce TID 6 hd caw nek hod betes bnss cass aeens 23

Udall v. Tallman, 380 U.S. 1 (1965)...............-. 2, 25

United States v. Rauscher, 119 U.S. 407 (1886) ........ 26

United States v. Khan, 993 F.2d 1368 (9th Cir. 1993) .... 26

U.S. Term Limits, Inc. v. Thorton, 514 U.S. 779

CHUTE «dens Sh etbs tives cn ncnecects cpeenesesecuas 26

Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert.

Gerstadl, GB CB. GV GHD oon ccc cnsdeecceses passim

Statutes, Lecsst arrive Mareriacs, Presioentiat Parers

AND TREATIES

pine COIR. sk enctikeistisnceus eins passim

Pub. L. No. 89-554, 80 Stat. 383 (Sept. 6, 1966)....... 1

Pub. L. No. 93-502 §§ 1-3, 88 Stat. 1561 (Nov. 21,

RRR igs eth gi: 2g oe 2

TABLE OF AUTHORITIES - Continued

Page

Exec. Order No. 8,381, 3 C.F.R. 634 (1941)............ 3

Exec. Order No. 10,290, 3 C.F.R. 789 (1952)........... 3

Exec. Order No. 12,065, 3 C.F.R. 190 (1979)........... 4

Exec. Order No. 12,356, 3 C.F.R. 166 (1983)........ 4, 23

Exec. Order No. 12,958, 3 C.F.R. 333 (1996)........5, 23

31 Weexty Compe. Pres. Doc. 633 (Apr. 17, 1995)....... 6

S. 1335, 98th Cong., Ist Sess. § 3 (1983).............. 5

PO Fe ee In hn. 0n cic eansntaevnnceseduneci 10, 24

Extradition Treaty, June 8, 1972, U.S.-U.K., art. XI

28 US.T. 227, 233, T.1.A.S. No. 8468 .............. 26

Orner

Floyd Abrams, The New to Control Informa-

tion, N.Y. Times, Sept. 25, 1983, § 6 (Magazine)

De a 6 oka p on nes wvcn dn che bodies vecssée cvvevetert 5

Mary M. Cheh, Judicial Supervision of Executive

Secrecy: Rethinking Freedom of Expréssion for Gov-

ernment Employees and the Public Right of Access

to Government Information, 69 Cornnis L. Rev.

SE nan ndatbabeiecactedssesventdondoudes ie

Anthony R. Klein, National Security Information: Its

Proper Role and Scope in Representative Democ-

racy, 42 Few. Com. LJ. 433 (1990) ......0 0000000 .., 5

R. Jeffery Smith, CIA, Others Opposing White House

Move to Bare Decades-Old Secrets, Washington

Se BS res rrrrre 7

STATEMENT OF THE CASE

1. The Freedom of Information Act, 5 U.S.C. § 552

was originally enacted in 1966 as an amendment to Section

3 of the Administrative Procedure Act. See Pub. L. No.

89-554, 80 Stat. 378 (Sept. 6, 1966).' The amendment was

thought necessary because “Section 3 was generally recog-

nized as falling short of its disclosure goals and came to be

looked upon more as a withholding statute than a dis-

closure statute.” EPA v. Mink, 410 U.S. 73, 79 (1973) (cita-

tions omitted). As this Court has recognized many times,

the FOIA’s “basic purpose reflected ‘a general philosophy

of full agency disclosure unless information is exempted

under clearly delineated statutory language.’ ” Department

of the Air Force v. Rose, 425 U.S. 352, 360-61 (1976) (quoting

S. Rep. No. 813, 89th Cong., Ist Sess., at 3 (1965)). See also

Department of Defense v. F.L.R.A., 510 U.S. 487, 494 (1994)

(same); Department of Justice v. Reporters Comm. for Freedom

of the Press, 489 U.S. 749, 754 & n.4 (1989) (same). Because

“disclosure, not secrecy, is the dominant objective of

[FOIA]” Rose, 425 U.S. at 361, the nine specific exemptions

to disclosure contained in the statute are to be narrowly

construed. Department of Justice v. Tax Analysts, 492 US.

136, 151 (1989) (“Consistent with the Act's goal of broad

disclosure, these exemptions have been consistently given

a narrow compass.”) (citations omitted). See also id. (“Con-

gress sought ‘to insulate its product from judicial tamper-

ing and to preserve the emphasis on disclosure by

admonishing that the availability of records to the public

is not limited, except as specifically stated.’ ”) (quoting FBI

v. Abramson, 456 U.S. 615, 642 (1982) (O'Connor, }., dissent-

ing)) (emphasis in original) (further citations omitted). It is

also common ground that the government bears the bur-

den of procf in justifying the invocation of any exemption.

' Petitioners’ omission of any discussion regarding the

background of FOIA Exemption 1 or the genesis of the new

executive order issued by President Clinton in 1995 has required

an expanded statement of the case by Respondent

Department of State v. Ray, 502 U.S. 164, 173 (1991) (“[T}he

strong presumption in favor of disclosure places the bur-

den on the agency to justify the withholding of any

requested documents.”) (citations omitted).

The evolution of Exemption 1 of the FOIA, 5 U.S.C.

§ 552(b)(1), exemplifies Congress’ commitment to dis-

closure tempered only by carefully circumscribed areas of

necessary government secrecy. Exemption 1 originally

exempted from disclosure any matters “specifically

required by Executive order to be kept secret in the inter-

est of national defense or foreign policy.” 5 U.S.C.

§ 552(b)(1) (1973). In 1973, this Court held in EPA v. Mink,

that FOIA did not authorize judicial review of “the sound-

ness of executive security classifications” or in camera

inspection of documents withheld under Exemption 1.

Mink, 410 U.S. at 84.

Congress responded swiftly. In 1974 it amended FOIA

and specifically overruled this Court’s decision in Mink.

Pub. L. No. 93-502 §§ 1-3, 88 Stat. 1561 (Nov. 21, 1974).

Exemption | was amended to require both that the matters

withheld be “specifically authorized under criteria estab-

lished by an Executive order to be kept secret” and that

such matters be “in fact properly classified pursuant to

such Executive order.” 5 U.S.C. § 552(b)(1)(A) & (B) (1999).

In the same 1974 amendments, Congress also amended the

statute to make clear that the burden is on the withholding

agency to establish the applicability of an exemption, that

the reviewing court is authorized to examine the withheld

information in camera, and that “the court shall determine

the matter de novo.” 5 U.S.C. § 552(a)(4)(B).

Thus, as amended, Exemption 1 is unique among the

FOIA exemptions. It places the initial decision as to the

criteria for classification entirely within the discretion of

the Executive Branch. At the same time, it requires the

Executive to scrupulously adhere to whatever substantive

criteria he promulgates. Moreover, contrary to Mink, the

federal courts are now expressly required to ascertain

whether a matter is properly classified under the criteria

and procedures chosen by the Executive. Nor do the

highly deferential standards of review generally applicable

to agency action apply; rather, federal courts must deter-

mine the matter de novo. “Unlike the review of other

agency action that must be upheld if supported by sub-

stantial evidence and not arbitrary or capricious, the FOIA

expressly places the burden ‘on the agency to sustain its

action’ and directs the district court to ‘determine the

matter de novo.’ ” Reporters Comm., 489 U.S. at 755 (quoting

5 U.S.C. § 552(a)(4)(B)). Thus, under Exemption 1 the

Executive Branch is the exclusive source of both the pro-

cedural and substantive requirements for classification.

Under FOIA, the courts are required to ensure that the

Executive abides by his own executive order.

In order to properly undertake judicial review of

FOIA exemption claims, the federal courts have developed

the concept of a Vaughn index, named for the District of

Columbia Circuit’s seminal decision in Vaughn v. Rosen,

484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977

(1974). Consistent with the burden allocation in FOIA,

Vaughn places the initial burden on the agency to come

forward with specific and detailed justifications identify-

ing the subject matter withheld and giving a “relatively

detailed analysis” as to why an exemption applies. Id. at

826. See also id. (“{Cjourts will simply no longer accept

conclusory and generalized allegations of exemptions.”)

(footnote omitted). The Vaughn procedure allows for at

least a modified form of the adversarial process in a con-

text where the requestor is necessarily in the dark as to the

content of the documents at issue in the case. The Vaughn

procedure has been adopted by every federal circuit. It

applies to every FOIA exemption, including Exemption 1.

See, e.g., Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978).

2. The first executive order prescribing a classification

system for government secrets was promulgated by Presi-

dent Franklin D. Roosevelt in 1940. Exec. Order No. 8,381,

3 C.ER. 634 (1941). In 1951, President Truman promulgated

a comprehensive and highly restrictive regime for the

ion of state secrets. Exec. Order No. 10,290. 3 C_ER.

789 (1952). President Truman’s order was roundly

criticized as too restrictive and a succession of executive

orders from President Eisenhower through President Car-

ter gradually relaxed the standards for classification. See

generally Mary M. Cheh, Judicial Supervision of Executive

Secrecy: Rethinking Freedom of Expression for Government

Employees and the Public Right of Access to Government Infor-

mation, 69 Cornett. L. Rev. 690, 690 n.3 (1984). This trend

culminated in President Carter's 1978 executive order that

required classifying officials to point to “identifiable dam-

age” from disclosure. It also provided that any uncertainty

as to disclosure should be resolved in favor of public

access. See Exec. Order No. 12,065, 3 C.F.R. 190 (1979)

(hereinafter “Carter Order”).

On April 2, 1982, President Reagan issued Executive

Order No. 12,356, superseding the prior order promul-

gated by President Carter. Exec. Order No. 12,356, 3 C.F.R.

166 (1983) (hereinafter “Reagan Order,” reprinted in the

Appendix hereto (“Resp. App.”) at la-25a.). The Reagan

Order significantly broadened the power of executive

agencies to classify information pursuant to national secu-

rity and foreign policy concerns. First, it eliminated the

provision of the Carter Order conferring discretion on

classifying officials to balance the public interest in dis-

closure against national security concerns. Second, it rees-

tablished the presumption in favor of classification in the

case of doubt. Resp. App. 3a. Third, it eliminated the

requirement of the Carter Order that a classifying official

point to “identifiable damage” from disclosure. Resp. App.

7a. Fourth, it reestablished the so-called “mosaic” theory

of classification, by providing that information should be

classified where its unauthorized disclosure, “either by

itself or in the context of other information,” could be

expected to cause damage to the national security. Resp.

App. 7a. Finally, and most important here, the Reagan

Order erected a presumption that the national security

would be damaged by the revelation of “foreign govern-

ment information”: “Unauthorized disclosure of foreign

government information, the identity of a confidential for-

eign source, or intelligence sources or methods is presumed

to cause damage to the national security.” Resp. App. 7a

(emphasis added). The term “foreign government informa-

tion” was defined to include: “information provided by a

foreign government or governments, an international

organization of governments, or any element thereof, with

the expectation, expressed or implied, that the information,

the source of the information, or both, are to be held in

confidence.” Resp. App. 24a (emphasis added).?

On April 17, 1995, in fulfillment of a campaign prom-

ise, President Clinton issued an executive order that

reversed President Reagan's protective approach to

national security information and went beyond even Presi-

dent Carter's executive order in discouraging classification

and promoting disclosure. Exec. Order No. 12,958, 3 C.E.R.

333 (1996) (“Clinton Order”) (reprinted in Appendix to the

Petition for Certiorari (“Pet. App.”) 65a-111la). Designed

specifically to “emphasize our commitment to open Gov-

ernment,” the Clinton Order reinstated the Carter Order's

presumption in favor of disclosure rather than classifica-

tion in the case of any uncertainty. Pet. App. 65a, 68a. The

Clinton Order also eliminated the “mosaic” theory of clas-

sification based on context and specifically eliminated the

presumption that the release of foreign government infor-

mation would cause harm to the national security. Instead,

for all classification decisions, the Clinton Order requires

the classification authority to be “able to identify or

describe the damage” to national security. Pet. App. 68a.

The Clinton Order eliminates the Reagan Order's

2 President Reagan's executive order was roundly

criticized as overly protective by academics, see generally, Cheh,

supra; Anthony R. Klein, National Security Information: Its Proper

Role and Scope in a Representative Democracy, 42 Fro. Com. L..J. 433

(1990), by the press, see Floyd Abrams, The New Effort to Control

Information, N.Y. Times, Sept. 25, 1983, § 6 (Magazine) at 22-23,

and by some members of Congress who proposed legislative

intervention to reestablish the more open Carter regime. Ser S

1335, 98th Cong., Ist Sess. § 3 (1983) (bill sponsored by Sen

Durenberger to amend Exemption | to reverse Reagan Order)

allowance that an expectation of confidentiality may be

“expressed or implied,” Resp. App. 24a, for information to

qualify as foreign government information. Pet. App. 66a.

Finally, the Clinton Order adopts the following definition:

“*Damage to the national security’ means harm to the

national defense or foreign relations of the United States

from the unauthorized disclosure of information, to

include the sensitivity, value, and utility of that informa-

tion.” Pet. App. 67a-68a. This was not a defined term in

the Reagan Order.

Under the Clinton Order there is no longer a pre-

sumption that government-to-government communica-

tions are not subject to disclosure. The fact that such

communications are exchanged in confidence is irrelevant;

all “foreign government information” is, by definition,

exchanged in confidence. Pet. App. 66a. More must now

be shown under the Clinton Order in order to justify

withholding diplomatic communications under Exemption

1 — a specific harm must be identified or described and

that harm must be linked to the dissemination of the

information itself. Pet. App. 67a-68a.

President Clinton's signing statement issued in con-

junction with the new executive order left no doubt that he

intended the order to “sharply reduce the permitted level

of secrecy in our Government.” 31 Werexiy Comr. Pres.

Doc. 633 (Apr. 17, 1995) Resp. App. 26a-28a. The statement

indicates that “|t}his order establishes many firsts: Classi-

fiers will have to justify what they classify... . ” Resp.

App. 27a. The President's statement makes particularly

clear that the Clinton Order eliminates any presumption

that certain categories of documents are not subject to

disclosure:

{W]e will no longer tolerate the excesses of the

current system. For example, we will resolve

doubtful calls about classification in favor of

keeping the information unclassified. We will not

permit the reclassification of information after it

has been declassified and disclosed under proper

authority. We will authorize agency heads to bal-

ance the public interest in disclosure against the

national security interest in making declassifica-

tion decisions. And, we will no longer presump-

tively classify certain categories of information,

whether or not the specific information otherwise

meets the strict standards for classification.

Resp. App. 27a (emphasis added).* Implementation of the

Clinton Order, the President stated, “will greatly reduce the

amount of information that we classify in the first place and

the amount that remains classified.” Resp. App. 28a.

As we discuss in detail below, given this background

and the broad claims of increased access made in conjunc-

tion with the Clinton Order, this Court should cast a wary

eye indeed at the Solicitor General's suggestions that the

changes wrought by the new order are mere “happen-

stance,” Petition for Certiorari (“Pet.”) at 22, and that court

of appeals decisions applying the Reagan Order somehow

“conflict” with the decision below. Pet. at 13-14. Rather, as

the district court noted, the Clinton Order constitutes a

“major shift in policy.” Pet. App. 25a. Indeed, in the court

below, the government argued that the Reagan Order

applied and was dispositive. Pet. App. 26a-27a. Now, the

Solicitor General tells this Court that the differences

between the two orders are immaterial.

4. Respondent Leslie R. Weatherhead is a lawyer in

private practice in Spokane, Washington. Respondent rep-

resented Sally-Anne Croft, a British national, who was

indicted in 1990 by a federal grand jury in Oregon on two

counts of conspiracy. The first alleged conspiracy contem-

plated an attack on a federal officer (it was never

attempted), and the second alleged conspiracy involved

illegal interstate transportation of firearms. Sometime after

3 Evidently, this new policy favoring disclosure over

classification was not supported by all the affected agencies

within the Executive Branch. See, ¢.g., R. Jeffrey Smith, CIA,

Others Opposing White House Move to Bare Decades Old Secrets,

Washington Post, Mar. 30, 1994, at Al4

her indictment, the United States requested Croft's extra-

dition by the British government.

The United States’ request for Croft's extradition was

attended by considerable controversy in Great Britain. The

British (among them, specificaily, several members of the

House of Lords) publicly worried about whether Croft, an

accountant who had been a follower of the guru Bhagwan

Shree Rajneesh, could receive a fair trial in the District of

Oregon, a place where Rajneesh had established his com-

mune and had achieved especial notoriety and hostile

press coverage. In their requests for extradition, American

officials reassured the British that any prejudice could be

dealt with under American procedural law by a change of

venue as well as other mechanisms to ensure an impartial

petit jury. Pet. App. 2a-3a.

On or about July 28, 1994, Croft and her codefendant

were extradited from Great Britain to the United States.

Shortly after her first appearance, Croft requested a

change of venue based on a widespread and pervasive

prejudice against Rajneesh and his “cult” members

throughout the District of Oregon. The government

opposed Croft's request for a change of venue and, in fact,

even opposed any evidentiary hearing into the extent of

local prejudice against the Rajneesh group.

Respondent, Croft's attorney, learned of the letter at

issue in this case, a July 28, 1994, letter sent by the British

Home Office to the Department of Justice, in conjunction

with Croft's extradition to the United States. Respondent

believed that the letter contained both an official expres-

sion of British concern over the issue of potential prejudice

against Croft in Oregon and a recitation of the assurances

regarding change of venue and other remedies that Ameri-

can officials had discussed with the British to induce extra-

dition. Respondent believed that evidence of these British

concerns and subsequent American assurances were rele-

vant to the trial judge’s decision whether to order a change

of venue. Pet. App. 3a. Contrary to the government's

present argument, it did disclose to the district court the

British Government's refusal to extradite Croft for trial on

the firearms trafficking count. Pursuant to the doctrine of

specialty, the firearms count was severed and not tried.4

However, the prosecutors had remained silent concerning

any change of venue discussion in the British letter.

On November 29, 1994, Respondent requested a copy

of the letter under the Freedom of Information Act from

both the Departments of Justice (“Justice”) and State

(“State”). Although Respondent's request identified the

letter by date, subject matter, and name of addressee, the

government did not respond within ten days as then

required by the Act. 5 U.S.C. § 552(a)(6)(A)(i).° Indeed, the

government failed to respond to the request for six full

months. Finally, on May 4, 1995, State informed Respon-

dent that it had been unable to locate the letter. Two weeks

later, Justice informed Respondent that it had a copy of the

letter, but had forwarded it to State for further review.

Respondent again wrote to both agencies, asking Jus-

tice for administrative review of its failure to provide him

the letter, and asking State, now that it had the letter, to

produce it. Neither Justice nor State replied that the letter

was classified. Justice’s administrative review officer

* While Respondent cannot say with absolute certainty that

the British Government's limitations on extradition were

contained in the letter at issue here, everything in this record

points to that fact. As we discuss in more detail below, see infra

pp. 26-27, prosecutors are often required to disclose the

extradition communications of foreign governments to state

and federal courts in the United States under provisions of

extradition treaties that may delimit the prosecution. This

practice flies in the face of the government's assertion that these

documents are categorically confidential. See Pet. App. 53a-54a

(Sheils Declaration); Pet. App. 57a-58a (Kennedy Declaration)

5 A 1996 amendment, effective after the request in this case,

extended tu 20 business days the time agencies are given to

respond to an initial POIA request. See Pub. 1. No. 104-231, 110

Stat. 3048, § 8(b) (1996).

remanded to the Criminal Division with instructions that

Justice reconsider its refusal to disclose the letter. State

wrote to the British Home Office, saying that State

intended to release the letter and asking for British concur-

rence. The British government demurred, solely because it

considered all government-to-government correspondence

confidential, subject to an important qualification: “the

normal line in cases like this is that all correspondence

between Governments is confidential unless papers have

been formally requisitioned by the defense.” Pet. App. 3a

(internal quotations omitted) (emphasis added).°

On November 17, 1995, Respondent filed a complaint

in federal district court for the Eastern District of Washing-

ton under FOIA, seeking to compel Justice and/or State to

produce the letter. In December 1995, over a year after

Respondent's initial FOIA request, State reported that it

had classified the letter in October 1995. In February 1996,

Justice informed Respondent that it had reconsidered its

decision to withhold the letter and, in view of State's

decision to classify the letter, would not release it.

With this administrative background, on February 16,

1996, Respondent moved for summary judgment. State

and Justice produced declarations under oath from Mr.

Peter M. Sheils, Pet. App. 48a - 54a, and Mr. Patrick F.

Kennedy, Pet. App. 55a — 59a, both administrative officials

at the State Department.” Both declarations alluded to the

general presumption that government-to-government

communications should remain confidential and to the

British government's request for continued confidentiality

* The State Department's August 4, 1995, letter to the

British government asking for permission to release the letter

and the British response of October 18, 1995, are reprinted in the

Appendix hereto at 29a-3la.

* Mr. Sheils declaration was filed in opposition to

Respondent's motion for summary judgment. Mr. Kennedy’s

declaration was filed after the district court's initial decision

ordering disclosure in support of the government's motion to

alter or amend judgment under Fed. R. Civ. P. 5%(e).

in this case. See Pet. App. 52a (Sheils Declaration) (“There

is a general understanding among governments that confi-

dentiality is normally to be accorded exchanges between

governments.”); Pet. App. 56a (Kennedy Declaration) (“It

is a longstanding custom and accepted practice in interna-

tional relations to treat as confidential and not subject to

eee ig emer information and documents exchanged

governments and their officials.”). Significantly,

neither declaration addressed the definition of harm con-

tained in section 1.1(1), Pet. App. 67a-68a, of the new

Clinton Order. Nor did either declarativn attempt to iden-

tify or describe any harm that was reasonably likely to

flow from the release of the information in the letter based

on the sensitivity, value, or utility of the information as

required by the Clinton Order.

On March 29, 1996, the district court granted Respon-

dent’s motion for summary judgment and ordered the

letter released under FOIA. Pet. App. 29a ~ 42a. The dis-

trict court first found that the letter did not meet the

definition of “foreign government information” under sec-

tion 1.1(d)(3) of the Clinton Order because there was no

evidence that there was an expectation of confidentiality at

the time the letter was sent to the United States. The

district court noted:

Neither DOJ [Justice] nor DOS [State] treated the

letter as confidential at the time of receipt. Nei-

ther agency classified the letter until nearly a

year after the subject FOIA request. Neither

asserted an exemption until more than a year

after the request, and then only at the request of

Great Britain.

Pet. App. 35a.

The district court did find that the letter met the more

general definition of information concerning “foreign rela-

tions or foreign activities of the United States” under

section 1.5(d) of the Clinton Order, Pet. App. 71a, and

therefore came within one of the categories eligible for

classification. Pet. App. 35a. Turning to the specification of

anticipated harm from disclosure, the district court

applied the universally accepted procedure for FOIA liti-

gation established by Vaughn v. Rosen, 484 F 2d 820, 826-28.

Pet. App. 3la (citing Vaughn, 484 F.2d at 826-28), 39a.

Under that standard, the agency's proof in support of

nondisclosure must, at a minimum, provide “a partic-

ularized explanation of how disclosure of [the] specific

|information|” at issue would damage the interest pro-

tected by the exemption. Pet. App. 39a. This, in the district

court's view, the Sheils Declaration did not do. Its general

and conclusory assertions about the confidentiality of all

government-to-government communications could not be

sufficient, or else all “foreign government information”

would automatically be exempt from disclosure and much

of the Clinton Order's new requirements would be ren-

dered surplusage. Pet. App. 41a. Moreover, the Sheils Dec-

laration failed completely to address the definition of

harm in the Clinton Order, which “place|d] the focus on

the information disclosed, not the act of disclosing.” Pet.

App. 40a. Finally, the district court found that Justice and

State had not made an adequate showing that certain

portions of the letter were not segregable. Pet. App. 40a.

Defendants State and Justice filed a motion to alter or

amend judgment and to have the district court examine the

letter in camera. The Kennedy Declaration, Pet. App. 55a-59a,

was submitted as “new evidence” in support of the motion.

Vet. App. 22a-23a. The district court found that the Kennedy

Declaration did little more than recite the same generalized

concerns as the Sheils Declaration. App. 22a-23a.* Like the

Sheils Declaration, the Kennedy Declaration relied upon a

“In tact, as the district court noted, the Kennedy

Declaration’s references to State's letter of inquiry to the British

government regarding Respondent's FOIA request cut against

their claims of categorical confidentiality. State's letter strongly

suggested that State intended to release the letter absent British

protest. See Pet. App. 22a-23a ("The letter of inquiry cuts against

defendants’ position. It suggests that DOS [State] intended to

comply with the FOLA request and would have but for the U_K’s

opposition (‘Before complying with this request, we would

appreciate the concurrence of your government in the release of

the document’).”).

longstanding custom and practice of confidentiality in diplo-

matic communications. While not disputing that such a tra-

dition existed, or that the British had invoked it here, the

district court quite properly looked to the text of the Clinton

Order itself:

There may be historical practices and proto-

cols in diplomatic circles supportive of defen-

dants’ position, and probably are. In recognition

of that history, Congress could have shielded all

materials either generated or held by DOS [State]

from FOIA disclosure, but chose instead to defer

to the Executive Branch. The Executive Branch

could have shielded all materials either gener-

ated or held by DOS [State] from FOIA dis-

closure, and for all practical purposes did so in

1982 when EO 12356 [Reagan Order] was signed.

In 1995, the current administration eliminated

the presumption of harm found in former EO

12356 § 1.3(c) and now requires a showing of

harm on a case-by-case basis. EO 12958

§ 1.2(a)(4) [Clinton Order]. This is a major shift in

policy. Defendants might not view this evolution

as prudent policy, but the answer is to direct

their concerns to the President, not to ask courts

to rewrite an executive order by inserting lan-

guage the President pointedly deleted.

Pet. App. 25a.

Despite the fact that the district court rejected defen-

dants’ “new evidence” and further rejected their attempts

to ignore or amend the text of the Clinton Order pro tanto

through State Department declarations, the district court

nonetheless granted reconsideration, inspected the letter im

camera, and ordered the letter withheld. The district court

was “unable to say why” the letter should be withheld,

because, in its view, doing so would necessarily cause the

harm sought to be avoided. Pet. App. .7a. Nor did the

district court cite any of the standards of the Clinton Order

as a basis for reversing itself, Pet. App. 27a-28a, or make

specific findings as to segregability. Id.°

The United States Court of Appeals for the Ninth

Circuit reversed and ordered the letter released. Pet. App.

la-20a. The court of appeals found, as the district court

had. that both of the possible harms discussed in the Sheils

and Kennedy Declarations - “damage caused by the act of

disclosing a letter between foreign governments, regard-

less of its particular contents, and damage caused because

the letter concerns international extradition proceedings”

Pet. App. 10a - were. insufficient as a matter of law under

the standards established by the Clinton Order. Thus,

under the Clinton Order, “it is clear that all information

exchanged between foreign governments is not exempt

from FOIA disclosure, not even all information that

another government prefers to keep confidential. . .. ” Pet.

App. I4a (emphasis in original). As the Ninth Circuit

noted, the government was seeking essentially the same

analysis as applied under the Reagan Order, arguing that

harm to the national security should be presumed without

any showing that disclosure of the specific information

itself could be injurious. The Clinton Administration how-

ever, had “chose[n] to make it easier for the public to view

material from foreign governments by eliminating the pre-

sumption of harm found in the prior Executive Order, EO

12356 § 1.3(c), and requiring the U.S. government to iden-

tify the particular damage that would result from releasing

the information.” Pet. App. l4a.

Nor could the Ninth Circuit accept the proposition

that extradition communications were categorically

exempted from disclosure. The court noted that State had

been willing to release the letter prior to British resistance

any

* The district court simply stated that “there is no portion

of [the letter] which could be disclosed without simultaneously

disclosing injurious materials.” Pet. App. 27a-28a. This

“finding” was, of course, every bit as general and conclusory as

the assertions of non-segregability by the government which the

district court had previously rejected. See Pet. App. 40a.

and that the British Home Office itself had acknowledged

a defense right to extradition letters upon proper request.

Pet. App. 15a. This record hardly supported a categorical

exception to the Clinton Order for extradition letters.

Finally, the Ninth Circuit rejected the proposition that

it should defer to the withholding agencies’ generalized

allegations of possible harms. It noted that the burden

rests with the government, consistent with well-settled

FOIA precedent, to make an initial showing (the Vaughn

showing) that a particular exemption applies to a particu-

lar document before deference is granted. Pet. App. 16a

(citing Rosenfeld v. Department of Justice, 57 F3d 803, 807

(9th Cir. 1995)). Under the Clinton Order that initial show-

ing now required some identification or description of

particular harm as defined in the order. Pet. App. 16a-17a.

The court of appeals conducted its own in camera

review and, in doing so, expressly accorded deference to

the government's characterization of the letter and poten-

tial harms from release. Pet. App. 17a. The court con-

cluded:

We have reviewed the letter in camera, and

carefully considered its contents, including the

“sensitivity, value, and utility” of the information

contained therein. Having done so, we fail to

comprehend how disclosing the letter at this time

could cause “harm to the national defense or

foreign relations of the United States.” The letter

is, to use Mr. Kennedy's term, “innocuous.” Even

after giving the act of classification the deference

to which it is entitled, we are compelled to con-

clude that disclosure of the letter pursuant to

Weatherhead’s FOIA request could not reason-

ably “be expected to result in damage to the

national security.”

Pet. App. 17a (citations omitted in original).

Judge Silverman dissented. Pet. App. 18a-20a. He

found the British insistence on confidentiality and the

protocols recited in the Sheils and Kennedy declarations

were sufficient to justify withholding the letter. et. App.

18a-19a. Judge Silverman's dissent did not identify or

describe any specific harm flowing from the content of the

letter, or dispute the majority's characterization of the

letter as “innocuous.” Rehearing and rehearing en banc

were denied and this timely petition for certiorari fol-

lowed.

SUMMARY OF ARGUMENT

The Ninth Circuit's decision in this case did not and,

in fact, could not create any conflict with the decisions of

any other court of appeals. The Ninth Circuit's decision is

the first court of appeals decision to apply FOIA Exemp-

tion 1 to the radical changes in the treatment of foreign

government communications wrought by the Clinton

Order. The Solicitor General's representation to this Court

that the change is mere “happenstance,” Pet. at 22, and

“has no bearing on the conflict,” id., is disingenuous at

best. That position conflicts with Executive Branch pro-

nouncements contemporaneous with the promulgation of

the Clinton Order and with the position taken by the

government in the district court that the Reagan Order

should be applied and, if applied, would be disposi’.ive.

Nor did the Ninth Circuit fail to accord appropriate

deference to the declarations filed in this case. Every cir-

cuit requires at least an initial showing under Vaughn that

the specific document at issue falls within the particular

exemption claimed. The Ninth Circuit simply applied this

well-settled principle in the context of the Clinton Oraer’s

more stringent substantive criteria. The deference the gov-

ernment seeks — district court acquiescence to generalized

assertions of possible harms — is inconsistent with the 1974

amendments to FOIA that overruled Mink, inconsistent

with the requirements of Vaughn, and inconsistent with the

new dictates of the government's own classification reg-

ime.

Nor is the Ninth Circuit's decision “flatly inconsis-

tent,” Pet. at 15, with any decisions of this Court. Depart-

ment of the Navy v. Egan, 484 U.S. 518 (1988), held that the

Merit Systems Protection Board did not have jurisdiction

over decisions regarding security clearances. CIA v. Sims,

471 U.S. 159 (1985), held that the National Security Act of

1947 qualified as a withholding statute under Exemption 3

of FOIA and that medical and psychological professionals

conducting counterintelligence activities were protected

“intelligence sources” under that Act. It strains credulity

to claim that the result below conflicts with either of these

decisions. Neither of these precedents speaks to FOIA

Exemption 1, let alone Exemption 1 as applied under the

Clinton Order. Moreover, because Exemption 1 leaves the

Executive Branch in complete control of both the substan-

tive and procedural aspects of classification, dire predic-

tions of encroachment on Executive Branch prerogatives,

Pet. at 14-18, ring hollow indeed. If the Clinton Order

results in a chilling of diplomatic exchange because the

decision to withhold each foreign government communi-

cation must be justified by identification and description

of a particular harm, Pet. at 14, the remedy lies in amend-

ment of the Executive Order. This Court should decline the

invitation to judicially twist and bend both the POIA and

the Clinton Order to achieve the same protection as the

Reagan Order. Rather, the Executive, which possesses both

expertise in foreign affairs and political accountability,

should simply amend its own order and accept whatever

political consequences ensue.

The Ninth Circuit's ruling in this case is very specific

to the facts of this case, and its decision will not result in

any harm to the national security or Executive Branch

prerogatives. Despite multiple opportunities to make a

showing, the government has been unable to demonstrate

that disclosure of the information in the letter at issue will

cause any specific harm to national security. Thus, the

situation presented here is unusual, because the Clinton

Order clearly contemplates that a wholly “innocuous”

communication like this one will not be classified. Nothing

in the Ninth Circuit's ruling excludes the possibility that

truly sensitive national security materials may be treated

in a categorical manner even under the Clinton Order.

On the unique facts of this case, the court of appeals’

decision requiring disclosure of this letter was a correct

application of FOIA Exemption 1 under the terms of the

Clinton Order. The court of appeals correctly rejected the

argument that government-to-government diplomatic

communications are categorically exempt from disclosure.

The Clinton Order was promulgated to reverse precisely

this type of categorical classification. Its text, structure,

and accompanying signing statement all confirm that

intent. The Ninth Circuit was also correct to reject the

argument that extradition communications as a category

should be exempted from disclosure. As the British Home

Office noted, such communications are routinely turned

over to the defense upon request. They often place limita-

tions on extradition that must be communicated to a state

or federal court under the doctrine of specialty and other

doctrines. Moreover, as the Ninth Circuit noted, it is diffi-

cult for the government to argue that this letter falls into a

well-established categorical exception when both Justice

and State failed to “recognize” its classified nature until

after a FOIA request and after consultation with the British

government. Nor can this “innocuous” letter, pertaining to

an extradition almost five years ago, satisfy the Clinton

Order’s stringent definition of harm to the national secu-

rity.

Finally, this case is particularly unsuited for this

Court's review. Even if the Court were wont to examine

the issues raised by the Clinton Order's interaction with

FOIA Exemption 1, this case presents a poor vehicle for

doing so. The post hoc classification decision in this case,

the apparent willingness of Justice and State to release the

letter prior to British protest, and the district court's con-

clusion that the letter was not exchanged with a promise

of confidentiality sufficient to qualify it as “foreign gov-

ernment information,” are unique facts that render this

case an unsuitable vehicle to address the proper inter-

pretation of the new Clinton Order.

ARGUMENT

A. The Decision Below Does Not Conflict With the

Decisions of This Court or Other Courts of Appeal.

In a strained attempt to mold this case to the criteria

for the exercise of this Court's certiorari jurisdiction, the

government argues that the decision below conflicts with

four decisions of other courts of appeals. A conflict, how-

ever, is quite simply impossible — all of the cited cases

predate the Clinton Order which, as previously discussed

at length, supra pp. 6-7, substantially increased the burden

the Executive Branch placed upon itself to justify the

classification of diplomatic communications. Indeed, sev-

eral of the cases cited by the government rely upon the

presumption of harm contained in the Reagan Order — a

presumption that was expressly eliminated by the Clinton

Order. Even a passing examination of these cases reveals

that they apply the same legal principles as did the Ninth

Circuit - they simply apply them to very different facts

under a very different executive order. Thus, the Ninth

Circuit's decision creates no potential for the forum shop-

ping or inconsistent results decried by the Solicitor Gen-

eral. Pet. at 14.

In Jones v. FBI, 41 F.3d 238 (6th Cir. 1994), the court of

appeals addressed a FOIA request for all FBI records per-

taining to a Black-nationalist group active in Cleveland in

the 1960s and 1970s. The district court applied Vaughn v.

Rosen, requiring the FBI to provide a description and claim

of exemption specific enough to allow judicial evaluation

of the claim. Jones, 41 F.3d at 242. The court found that the

affidavits filed by the FBI “are of the kind that have

become accepted practice and they are sufficiently

detailed” to satisfy the Vaughn standard. Id. The court

specifically upheld an Exemption 1 claim under the

Reagan Order, allowing redaction of “intelligence activities

[,] . . . sources, or methods,” pursuant to section 1.3(a)(4)

of the Reagan Order. Resp. App. 7a. Of course, under the

Reagan Order, as applied in Jones, disclosure of “intel-

ligence sources or methods” was presumed to cause dam-

age to the national security. Resp. App. 7a. Thus, Jones

properly accorded deference where the initial specificity

required by Vaughn had been satisfied in a case involving

intelligence sources under an executive order that pre-

sumed damage to the national security. Jones tells us liter-

ally nothing about how the Sixth Circuit would approach a

foreign government communication case under the Clin-

ton Order, with no presumption of harm, and with general

and conclusory government declarations that do not sat-

isfy Vaughn.

McDonnell v. United States, 4 F.3d 1227, 1243 (3d Cir.

1993), is equally unavailing in establishing a conflict

among the circuits. McDonnell also involved an Exemption

1 claim under the Reagan Order based on intelligence

methods - in that case, cryptographic systems. As did the

Ninth Circuit here, the Third Circuit in McDonnell empha-

sized the importance to the adversarial process under

FOIA of detailed and specific Vaughn affidavits. “Thus,

when an agency seeks to withhold information, it must

provide ‘a relatively detailed justification, specifically

identifying the reasons why a particular exemption is rele-

vant and correlating those claims with the particular part

of a withheld document to which they apply.’ ” McDonnell,

4 F3d at 124i (quoting King v. Department of Justice, 830

F.2d 210, 218-19 (D.C. Cir. 1987)). Once this required show-

ing under Vaughn had been made, the Third Circuit prop-

erly deferred to a detailed FBI affidavit discussing the

potential harms caused by release of encrypted FBI mes-

sages. McDonnell, 4 F.3d at 1243-45. The Sixth Circuit's

approach in McDonnell is indistinguishable from that of

the court below. Like the Ninth Circuit (and every other

circuit) the McDonnell court required an “initial showing”

of some specificity under Vaughn before deferring to the

Executive's classification decision.

Krikorian v. Department of State, 984 F.2d 461 (D.C. Cir.

1993), upheld the State Department’s refusal to release

communications from foreign governments regarding

Armenian terrorism. The opinion explicitly relies in part

upon the Reagan Order’s presumption that the release of

foreign government communications would harm the

national security. See Krikorian, 984 F.2d at 465 & n.4 (dis-

cussing “reciprocal confidentiality” of diplomatic commu-

nications and citing presumption of harm from release

under section 1.3(c) of the Reagan Order). We are left to

speculate as to how the D.C. Circuit's decision in Krikorian

“conflicts” in any sense with the Ninth Circuit's decision

under a new and different executive order without such a

presumption.

Finally, Bowers v. Department of Justice, 930 F.2d 350

(4th Cir.), cert. denied, 502 U.S. 911 (1991), involved a

request by a journalist for the FBI files of a former Soviet

diplomat and a Soviet national who emigrated to the

United States. Again, the court specifically relied upon the

presumption of harm in the Reagan Order in denying

disclosure of foreign government information. Id. at 358.

The court also noted that it had been provided with “more

than 480 pages of declarations” which provided “a very

detailed and particularized account of why the withheld

information qualified under the exemptions of § 552(b).”

Id. at 357.10

As the above discussion makes clear, there is no con-

flict in approach or analysis between the Ninth Circuit's

decision in this case and the decisions of other courts of

appeals. Pursuant to Vaughn and consistent with the

Cir. 1985), or Doherty v. Department of Justice, 775 F.2d 49 (2d Cir.

1985), conflict with the decision below. Both cases are decided

under the Reagan Order, and both cases deferred to the

Executive's classification ¢ecision only after an adequately

specific claim of exemption had been made. Miller, 779 F.2d at

1387 (“[T]he government cannot adequately carry its burden

through ‘barren assertions’ that the document is exempt.”)

(citations omitted); Doherty, 775 F.2d at 51 (The affidavits

“describe with reasonable specificity the information withheld

and the justifications for nondisclosure.”) (citation omitted)

FOIA’s requirements that the government bear the burden

of proof on exemptions, every circuit requires an “initial

showing” of some specificity that a particular document

falls within the terms of Exemption 1.'! No circuit defers

to the kind of general and conclusory declarations such as

those filed in this case, even under the Reagan Order. Such

deference would read the 1974 amendments out of the

statute and reinstate the Mink regime.

The government's claim that the decision below con-

flicts with this Court’s decisions in Egan and Sims is even

more attenuated. Egan found that the statutory authority

of the Merit Systems Protection Board did not extend to

review of agency decisions to revoke security clearances.

In so holding, the Court applied the canon of construction

that “unless Congress has specifically provided otherwise,

courts traditionally have been reluctant to intrude upon

the authority of the Executive in military and national

security affairs.” Egan, 484 U.S. at 530 (citations omitted).

Because the Board had no express grant of authority to

review security clearance revocation, the Court found that

Congress had conferred no such authority. Id. at 531-32.

Egan is wholly inapposite here. In FOIA, Congress has

clearly and unambiguously given the federal courts juris-

diction to review de novo whether matters are “properly

classified” pursuant to executive order. 5 U.S.C.

§ 552(b)(1)(B). The Executive controls entirely the content

of his own orders. No affront to Article I prerogatives is

presented by requiring the Executive to adhere to stan-

dards of his own creation in the area of foreign affairs.

'! For a discussion of the history of Exemption 1, see supra

p. 3. Given its centrality to FOIA exemption litigation, it is

passing strange that Vaughn is nowhere mentioned in the

petition for certiorari. The fact that under Vaughn, federal courts

have required an “initial showing” of some specificity before

deferring to agency claims of exemption for over 25 years would

seem extremely relevant to this Court's evaluation of the Ninth

Circuit's requirement of an “initial showing” in this case.

Nor does this Court's decision in Sims require review

of the decision below. Sims was an Exemption 3 case

applying the National Security Act to intelligence sources.

The court held that the “broad sweep” of the Act allowed

the Director of the CIA to protect all sources of intelligence

for the Agency, whether or not they are foreign sources or

otherwise confidential or nonpublic. Sims, 471 US. at

169-70. No Exemption 1 claim was raised or litigated in

Sims. See id. at 187-88 & n.4 (Marshall, J., dissenting).

Respondent does not quarrel with the general princi-

ple endorsed in Egan and Sims that the Executive Branch is

entitled to deference from the other two Branches concern-

ing its decisions in the areas of foreign affairs and national

security. The point here is that the Executive has made

such a decision in the Clinton Order - he has revised

classification policy to emphasize disclosure and de-

emphasize secrecy. It is that judgment that the Judicial

Branch is required to enforce under FOIA Exemption 1,

not the post hoc rationalizations of State Department per-

sonnel who may disagree with that judgment.

While the Ninth Circuit is the first court to apply the

Clinton Order under FOIA Exemption 1, several courts

have noted that it embodies a conscious decision by the

Executive Branch to substantially reduce the secrecy

accorded to government information and increase its dis-

closure. See, e.g., Summers v. Department of Justice, 140 F.3d

1077, 1082 (D.C. Cir. 1998) (“The newer order, Executive

Order No. 12,958, differs considerably from its prede-

cessor, Executive Order No. 12,356. Significantly, the

newer order is less restrictive, reflecting what it refers to

as ‘dramatic changes’ in national security concerns in the

late 1980s following the United States’ victory in the Cold

War.”); Halpern v. FBI, No. 98-6035, 1999 U.S. App. LEXIS

13700 (2d Cir. June 22, 1999), at *18 (noting “more liberal

standards of Executive Order 12,958"). Indeed, in both this

case and Halpern, the Department of Justice actively liti-

gated for application of the more restrictive standards of

the Reagan Order. See Pet. App. 26a-27a, Halpern, at

*18-"19.!2 It is baffling that the government now represents

to this Court that the changes wrought by the new order

are mere “happenstance,” Pet. at 22, immaterial to the

outcome of Exemption 1 litigation.

B. The Ninth Circuit Correctly Interpreted and Applied

the New and Significantly More Stringent Require-

ments For Classification in the Clinton Executive

Order.

The court of appeals quite properly rejected the rule of

blanket deference urged upon it by the government. The

thrust of the government's legal arguments below, its State

Department declarations, and its position before this Court

is that foreign government communications must be cate-

gorically protected to ensure full and candid exchange

with foreign governments. Pet. App. 53a (Sheils Declara-

tion); Pet. App. 57a (Kennedy Declaration); Pet. at 14,

24-25. Thus, the government seeks to resurrect, through

State Department declarations and “serious separation-of-

powers concerns,” Pet. at 17-18, the presumption of pro-

tection for government-to-government communications it

expressly cast aside in 1995.

The Ninth Circuit would not take the bait and neither

should this Court. The change in executive orders could

not be clearer nor more deliberate. As previously outlined

at length, supra pp. 6-7, a presumption of harm was elimi-

nated and in its place the Clinton Order erects a require-

ment that specific harm be identified and described. The

structure of the order makes crystal clear that breach of a

promise of confidentiality alone cannot, as a matter of law,

satisfy the harm requirement. An expectation of confiden-

tiality is a necessary predicate to a finding that informa-

tion qualifies as “foreign government information” eligible

'2 See also Defendants’ Reply Memorandum in Support of

Motion to Alter or Amend Judgment Pursuant to Rule 59%e), at

8-9 & n.2 (citing presumption in Reagan Order).

for classification. If a showing of expectation of confiden-

tiality is also sufficient for classification, then section

1.2(a)(4) of the Clinton Order is rendered surplusage in the

case of “foreign government information” and the Clinton

Order is at least as restrictive as the Reagan Order. The

Ninth Circuit was undoubtedly correct in rejecting this

circular line of reasoning. The government's position -

that a backdrop of diplomatic confidentiality, or even a

particular government's post hoc insistence on confiden-

tiality, is sufficient ground for classification under the

Clinton Order - is untenable."

The Ninth Circuit was also correct in rejecting the

government's argument that extradition communications

constitute a particularly sensitive subset of diplomatic

communications for which a presumption of harm should

apply. Such an approach is inconsistent with the Clinton

Order’s elimination of the presumption of protection for

all diplomatic communications. Compare Reagan Order

§ 1.3(b) Resp. App. 7a with Clinton Order § 1.2(a)(4), Pet.

App. 68a. President Clinton's signing statement accom-

panying the new executive order makes clear that “|c}las-

sifiers will have to justify what they classify” and “we will

no longer presumptively classify certain categories of

information, whether or not the specific information other-

wise meets the strict criteria for classification.” Resp. App.

27a (emphasis added). The President's statement comports

Nor is the State Department's (or the Solicitor General's)

interpretation of the Clinton Order entitled to any deference See

Pet. at 23 & n.11 (citing Udall v. Tallman, 380 US. 1, 4 (1965))

Udall involved a long-standing construction which was a matter

of public record. Id. By contrast, Justice and State's position here

was taken for the first time in litigation and is not entitled to any

deference. See Martin v. OSHRC, 499 US. 144, 156 (1991)

with the text of the order and makes clear that a categori-

cal or presumptive approach to diplomatic communica-

tions based on expectations of confidentiality is precisely -

precisely — what the order was meant to eliminate.'*

Furthermore, extradition documents are uniquely

poor candidates for a categorical exception to disclosure.

Criminal defendants routinely have access to, and rely

upon, foreign government documents to enforce important

doctrines of international extradition law in state and fed-

eral courts. For example, “[a]s a matter of international

comity, the doctrine of specialty prohibits the requesting

nation from prosecuting the extradited individual for any

offense other than that for which the surrendering state

agreed to extradite.” United States v. Khan, 993 F.2d 1368,

1373 (9th Cir. 1993) (citations omitted); see also United

States v. Rauscher, 119 U.S. 407, 419-21 (1886). Extradition

Treaty, June 8, 1972, U.S.-U.K., art. XII(1), 28 U.S.T. 227,

233, T.1L.A.S. No. 8468 (recognizing doctrine of specialty).

The specialty doctrine thus focuses exclusively upon the

terms and conditions of a foreign government's grant of

the United States’ extradition request. United States courts

routinely enforce these “diplomatic” limitations on extra-

dition. See, ¢.g., Khan, 993 F.2d at 1373-75 (prohibiting

prosecution where Pakistani extradition documents did

not unambiguously permit such prosecution). Access to

4 As a statement of intent and purpose by the unitary and

exclusive source of the Clinton Order itself, the President's

signing statement is entitled to significantly more interpretive

weight in this context than in the context of legislation. At a

minimum, it should be accorded the same weight as a preamble

to legislation. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779,

830 (1995); Price v. Forrest, 173 U.S. 410, 427 (1899). In addition to

the signing statement, the preamble to the Clinton Order speaks

in the same terms of increased access and more stringent criteria

for classification. Pet. App. 26a-28a. As contemporaneous

statements of presidential purpose, both the signing statement

and preamble should inform judicial interpretation of the text of

the order.

extradition documents is thus often necessary to enforce

treaties as they impact the p secution of foreign

nationals. Indeed, in this very case, the British government

informed the United States that Great Britain did not have

an analogous crime for the firearms charges in the indict-

ment against Croft. This information was conveyed to the

trial judge in this case, and that charge was severed and

not tried.'>

In addition, the First Amendment dictates that prelim-

inary hearings in criminal cases are presumptively open to

the public. Press-Enterprise Co. v. Superior Court, 464 US.

501 (1984). As this Court has noted, public access plays a

significant positive role in the functioning of preliminary

criminal proceedings, by “enhancling] both the basic fair-

ness of the criminal trial and the appearance of fairness so

essential to public confidence in the system.” Id. at 508.

This principle applies with equal force to extradition hear-

ings and foreign extradition documents. See In re Romeo,

No. 87-0808RC, 1987 U.S. Dist. LEXIS 12595 (D. Mass. May

1, 1987). Not only does the public have an interest in open

extradition proceedings within the context of the criminal

justice system; “the extent to which and the manner in

which the Executive Branch adheres to its treaty obliga-

tions is a matter of legitimate public concern.” Id. at *9

(citing Artukovic v. Rison, 784 F.2d 1354, 1356 (9th Cir.

1986)). Thus, unlike many diplomatic communications,

extradition communications are often destined for release

to the courts and criminal defendants and this fact is

known to (and desired by) the governments that exchange

them. Thus, the Ninth Circuit correctly rejected a categori-

cal rule exempting extradition communications from dis-

closure under the FOIA.

'S If this information regarding “specialty” was contamed

in the July 28, 1994, letter at issue in this case, there can be no

argument that, at a minimum, the portion of the letter

addressing specialty must be disclosed.

Contrary to the discussion in the petition, Pet. at

26-29, the Ninth Circuit nowhere held that only harm

flowing from the disclosure of the content of information,

as opposed to harm from the act of disclosure itself, is

cognizable under the Clinton Order. Rather, the court of

appeals expressly left open the question whether a cate-

gorical approach is forbidden for all categories of classifia-

ble material under the Clinton Order: “While we do not

preclude the possibility that the government might be able

in some circumstance to establish an inherently damaging

category of information, we need not decide that question

now, because the government did not meet its burden of

establishing the justification for such a category in this

case.” Pet. App. 14a-15a. Thus, the Ninth Circuit's opinion

stands only for the narrow proposition that the release of

“government-to-government communications” or “extra-

dition communications” cannot categorically be presumed

to cause harm to the national security. Given the changes

wrought by the Clinton Order, this holding is undoubtedly

correct. Nowhere does the Ninth Circuit purport to limit

all cognizable harms to those flowing exclusively from

disclosure of the contents of a particular document.'*

'© Although this broader issue was not passed upon by the

Ninth Circuit, and is therefore not properly presented by this

case, the district court did squarely hold, we believe correctly,

that the Clinton Order restricts classification harm to damage

from the disclosure of the content of information. The Clinton

Order eliminated the “mosaic” theory of classification by

deleting that portion of the Reagan Order that permitted

classification based on harm from unauthorized disclosure of

information “either by itself or in the context of other

information.” Resp. App. 7a. Compare Reagan Order § 1.3(b),

Resp. App. 7a. with Clinton Order § 1.2(a)(4), Pet. App. 68a.

Harm from exogenous context, therefore, can no longer provide

grounds for classification. Harm must flow from the disclosure

of “information, to include the sensitivity, value, and utility of

that information.” Pet. App. 68a. While “sensitivity, value, and

utility,” are not exclusive, they nonetheless must be read in the

Finally, the Ninth Circuit held that nothing extraordin-

ary about the content or context of this document justified

withholding it under Exemption 1: “We have reviewed the

letter in camera, and carefully considered its contents,

including the ‘sensitivity, value, and utility’ of the infor-

mation contained therein. The letter is, to use Mr. Ken-

nedy’s term, ‘innocuous.’ ” Pet. App. 17a (quoting Clinton

Order § 1.1(1)), Pet. App 67a-68a. The letter pertains to a

criminal case now final for several years.'”? The fact that

the British wish the letter to remain confidential is plainly

not sufficient, in and of itself, to satisfy the government's

burden under the Clinton Order. This Court's review is

clearly not warranted simply to examine or correct the

conclusion of the Ninth Circuit based upon its in camera

review of one document.

context of the doctrine of ejusdem generis. See, e.g., Arcadia v. Ohio

Power Co., 498 U.S. 73, 84 (1990); Cleveland v. United States, 329

US. 14, 18 (1946). All three of these listed “sources” of harm

relate exclusively to the content of the information. Moreover,

the President's signing statement states unequivocally that the

new order focuses on “whether or not the specific information

otherwise meets the strict standards for classification.” Resp.

App. 27a (emphasis added). Still, while the Solicitor General is

quite mistaken in his reading of the Clinton Order, resolution of

this issue is not necessary to this case and therefore must await

further litigation applying FOIA Exemption 1 to the Clinton

Order.

'7 We note that even Judge Silverman, the dissenting judge

below, who also viewed the letter in camera, could not see any

harm in disclosure. “I am not a diplomat, | don’t know the

intricacies of the geopolitical situation at the time, but I looked

at the letter today and, honestly looking at it, | can't tell what it

is that makes it top secret.” Transcript of Oral Argument,

Weatherhead v. United States, No. 96-36260 (9th Cir, Apr. 8, 1998),

at 34 (Statement of Judge Silverman).

° 30 la

C. This Case Constitutes a Poor Vehicle To Address the

Issues Raised in the Petition. 4TH DOCUMENT of level 1 printed in FULL format.

The unique facts of this case make it a poor vehicle for . Public Papers of the Presidents

the announcement of any general principles of FOIA law April 2, 1982

—or to address the interaction of the new Clinton Order o

with FOIA Exemption 1. First, the district court found that CITE: 18 Weekly Comp. Pres. Doc. 422

this letter did not qualify as “foreign government informa-

tion” because it was not exchanged with an expectation of LENGTH: 5828 words

confidentiality. Pet. App. 33a (“There is no showing in this HEADLINE: National Security Information

record of a contemporaneous expectation of confidentiality

with respect to the letter.”). Second, the case involves HIGHLIGHT:

extradition communications, which are sui generis in the Executive Order 12356.

field of diplomatic exchange in that they are often BODY:

intended (or required) to be revealed to the courts of

Table of Contents

requesting and extraditing countries. Third, it appears that a

: Page

a portion of this letter has already been revealed to a

federal district court in Oregon to effectuate the British emanate oe

assertion of the doctrine of specialty. Finally, the fact that Part 1. Original Classification 423

this document was not classified until almost a year after a 1.1 Classification Levels 423

FOIA request was made, may color the analysis. See Pet. 1.2 Classification Authority 423

App. 76a (placing certain additional restrictions on classi- 13 Classification Categories 424

fication decisions made after receipt of a FOIA request). 14 Duration of Classification 425

1.5 Identification and Markings 425

CONCLUSION 1.6 Limitations on Classification 425

Because the Ninth Circuit is the first court of appeals Part 2. Derivative Classification 426

in the nation to apply the Clinton Order under FOIA 2.1 Use of Derivative 426

Exemption 1, because it was undoubtedly correct in refus- Classification.

ing to erect categorical presumptions for diplomatic com- 2.2 Classification Guides 426

munications under the new Clinton Order, and because ; Part 3. Declassification and 426

the facts of this case present a poor vehicle for review, the Downgrading

petition for certiorari should be denied. 3.1 Declassification Authority 426

Respectfully submitted, 3.2 Transterred Information 426

Cc Cc * 3.3 Systematic Review for 427

Feared | ac Bes Declassification.

Coorun, Casven & Rosenmiat, rac 3.4 Mandatory Review for 427

1500 K Street, N.W., Suite 200 Declassification.

oan ites” 20005

“Counsel of Record

Part 4. Safeguarding 428

4.1 General Restrictions on 428

Access.

4.2 Special Access Programs 428

4.3 Access by Historical 428

Researchers and Former

Presidential Appointees.

Part 5. Implementation and Review 429

5.1 Policy Direction 429

5.2 Information Security 429

Oversight Office.

5.3 General Responsibilities 429

5.4 Sanctions 430

Part 6. General Provisions 430

6.1 Definitions 430

6.2 General 430

nl Editorial Note: The page numbers in the original

text have been changed to those of this publication

Executiver [sic] Order National Security Information

This Order prescribes a uniform system for classify-

ing, declassifying, and safeguarding national security

information. It recognizes that it is essential that the

public be informed concerning the activities of its Gov-

ernment, but that the interests of the United States and its

citizens require that certain information concerning the

national defense and foreign relations be protected

against unauthorized disclosure. Information may not be

classified under this Order unless its disclosure reason-

ably could be expected to cause damage to the national

security.

Now, by the authority vested in me as President by

the Constitution and laws of the United States of Amer-

ica, it is hereby ordered as follows:

Part 1 Original Classification

Section 1.1 Classification Levels.

(a) National security information (hereinafter “clas-

sified information”) shall be classified at one of the fol-

lowing three levels:

(1) “Top Secret” shall be applied to information, the

unauthorized disclosure of which reasonably could be

expected to cause exceptionally grave damage to the

national security.

(2) “Secret” shall be applied to information, the

unauthorized disclosure of which reasonably could be

expected to cause serious damage to the national security.

(3) “Confidential” shall be applied to information,

the unauthorized disclosure of which reasonably could be

expected to cause damage to the national security.

(b) Except as otherwise provided by statute, no

other terms shall be used to identify classified informa-

tion.

classify information, it shall be safeguarded as if it were

classified pending a determination by an original classi-

fication authority, who shall make this determination

within thirty (30) days. If there is reasonable doubt about

the appropriate level of classification, it shall be safe-

guarded at the higher level of classification pending a

determination by an original classification authority, who

shall make this determination within thirty (30) days.

Sec. 1.2 Classification Authority.

(a) Top Secret. The authority to classify information

originally as Top Secret may be exercise [sic] only by:

(1) the President;

(2) agency heads and officials designated by the

President in the Federal Register; and

(3) officials delegated this authority pursuant to

Section 1.2(d).

(b) Secret. The authority to classify information

originally as Secret may be exercised only by:

(1) agency heads and officials designated by the

President in the Federal Register;

(2) officials with original Top Secret classification

authority; and

(3) officials delegated such authority pursuant to

Section 1.2(d).

tion originally as Confidential may be exercised only by:

(1) agency heads and officials designated by the

President in the Federal Register;

(2) officials with original Top Secret or Secret classi-

fication authority; and

(3) officials delegated such authority pursuant to

Section 1.2(d).

(d) Delegation of Original Classification Authority.

(1) Delegations of original classification authority

shall be limited to the minimum required to administer

this Order. Agency heads are responsible for ensuring

that designated subordinate officials have a demonstrable

and continuing need to exercise this authority.

(2) Original Top Secret classification authority may

be delegated only by the President; an agency head or

official designated pursuant to Section 1.2(a)(2); and the

senior official designated under Section 5.3(a)(1), pro-

vided that official has been delegated original Top Secret

classification authority by the agency head.

(3) Original Secret classification authority may be

delegated only by the President; an agency head or offi-

cial designated pursuant to Sections 1.2(a)(2) and

1.2(b)(1); an official with original Top Secret classification

authority; and the senior official designated under Sec-

tion 5.3(a)(1), provided that official has been delegated

original Secret classification authority by the agency

head.

(4) Original Confidential classification authority

may be delegated only by the President; an agency head

or official designated pursuant to Section 1.2(a)(2),

1.2(b)(1) and 1.2(c)(1); an official with original Top Secret

classification authority; and the senior official designated

under Section 5.3(a)(1), provided that official has been

delegated original classification authority by the agency

head.

(5) Each delegation of original classification author-

ity shall be in writing and the authority shall not be

redelegated except as provided in this Order. It shall

identify the official delegated the authority by name or

position title. Delegated classification authority includes

the authority to classify information at the level granted

and lower levels of classification.

(e) Exceptional Cases. When an employee, contrac-

tor, licensee, or grantee of an agency that does not have

original classification authority originates information

believed by that person to require classification, the infor-

mation shall be protected in a manner consistent with this

Order and its implementing directives. The information

shall be transmitted promptly as provided under this

Order or its implementing directives to the agency that

has appropriate subject matter interest and classification

authority with respect to this information. That agency

shall decide within thirty (30) days whether to classify

this information. If it is not clear which agency has classi-

fication responsibility for this information, it shall be sent

to the Director of the Information Security Oversight

Office. The Director shall determine the agency having

primary subject matter interest and forward the informa-

tion, with appropriate recommendations, to that agency

for a classification determination.

Sec. 1.3 Classification Categories.

(a) Information shall be considered for classification

if it concerns:

(1) military plans, weapons, or operations;

(2) the vulnerabilities or capabilities of systems,

installations, projects, or plans relating to the national

security;

(3) foreign government information;

(4) intelligence activities (including special activ-

ities), or intelligence sources or methods;

(5) foreign relations or foreign activities of the

United States;

(6) scientific, technological, or economic matters

relating to the national security;

(7) United States Government programs for safe-

guarding nuclear materials of facilities;

(8) cryptology;

(9) a confidential source; or

(10) other categories of information that are related

to the national security and that require protection

against unauthorized disclosure as determined by the

President or by agency heads or other officials who have

been delegated original classification authority by the

President. Any determination made under this subsection

shall be reported promptly to the Director of the Informa-

tion Security Oversight Office.

(b) Information that is determined to concern one or

more of the categories in Section 1.3(a) shall be classified

when an original classification authority also determines

that its unauthorized disclosure, either by itself or in the

context of other information, reasonably could be

expected to cause damage to the national security.

information, the identity of a confidential foreign source,

or intelligence sources or methods is presumed to cause

damage to the national security.

(d) Information classified in accordance with Sec-

tion 1.3 shall not be declassified automatically as a

result of any unofficial publication or inadvertent or

unauthorized disclosure in the United States or abroad of

identical or similar information.

Sec. 1.4. Duration of Classification.

(a) Information shall be classified as long as

required by national security considerations. When it can

be determined, a specific date or event for declassifica-

tion shall be set by the original classification authority at

the time the information is originally classified.

(b) Automatic declassification determinations

under predecessor orders shall remain valid unless the

classification is extended by an authorized official of the

originating agency. These extensions may be by individ-

ual documents or categories of information. The agency

shall be responsible for notifying holders of the informa-

tion of such extensions.

and marked for declassification review shall remain clas-

sified until reviewed for declassification under the provi-

sions of this Order.

Sec. 1.5 Identification and Markings.

(a) At the time of original classification, the follow-

ing information shall be shown on the face of all classi-

fied documents, or clearly associated with other forms of

classified information in a manner appropriate to the

medium involved, unless this information itself would

reveal a confidential source or relationship not otherwise

evident in the document or information:

(1) one of the three classification levels defined in

Section 1.1;

(2) the identity of the original classification author-

ity if other than the person whose name appears as the

approving or signing official;

(3) the agency and office of origin; and

(4) the date or event for declassification, or the

notation “Originating Agency's Determination

Required.”

(b) Each classified document shall, by marking or

other means, indicate which portions are classified, with

the applicable classification level, and which portions are

not classified. Agency heads may, for good cause, grant

and revoke waivers of this requirement for specified

classes of documents or information. The Director of the

Information Security Oversight Office shall be notified of

any waivers.

sions of this Order, including abbreviations, shall con-

form to the standars prescribed in implementing

directives issued by the Information Security Oversight

Office.

(d) Foreign government information shall either

retain its original classification or be assigned a United

States classification that shall ensure a degree of protec-

tion at least equivalent to that required by the entity that

furnished the information.

(e) Information assigned a level of classification

under predecessor orders shall be considered as classified

at that level of classification despite the omission of other

10a

required markings. Omitted markings r-~+ be inserted on

a document by the officials specifiec im Section 3.1(b).

Sec. 1.6 Limitations on Classification.

(a) In no case shall information be classified in

order to conceal violations of law, inefficiency, or admin-

istrative error; to prevent embarrassment to a person,

organization, or agency; to restrain competition; or to

prevent or delay the release of information that does not

require protection in the interest of national security.

(b) Basic scientific research information not clearly

related to the national security may not be classified.

ignated under Sections 1.2(a)(2), 1.2(b)(1), or 1.2(c)(1)

may reclassify information previously declassified and

disclosed if it is determined in writing that (1) the infor-

mation requires protection in the interest of national

security; and (2) the information may reasonably be

recovered. These reclassification actions shall be reported

promptly to the Director of the Information Security

Oversight Office.

(d) Information may be classified or reclassified

after an agency has received a request for it under the

Freedom of Information Act (5 U.S.C. 552) or the Privacy

Act of 1974 (5 U.S.C. 552a), or the mandatory review

provisions of this Order (Section 3.4) if such classification

meets the requirements of this Order and is accomplished

personally and on a document-by-document basis by the

agency head, the deputy agency head, the senior agency

official designated under Section 5.3(a)(1), or an official

with original Top Secret classification authority.

lla

Part 2 Derivative Classification

Sec. 2.1 Use of Derivative Classification.

(a) Derivative classification is (1) the determination

that information is in substance the same as information

currently classified, and (2) the application of the same

classification markings. Persons who only reproduce,

extract, or summarize classified information, or who only

apply classification markings derived from source mate-

rial or as directed by a classification guide, need not

possess original classification authority.

(b) Persons who apply derivative classification

markings shall:

(1) observe and respect original classification deci-

sions; and

(2) carry forward to any newly created documents

any assigned authorized markings. The declassification

date or event that provides the longest period of classi-

fication shall be used for documents classified on the

basis of multiple sources.

Sec. 2.2 Classification Guides.

(a) Agencies with original classification authority

shall prepare classification guides to facilitate the proper

and uniform devivative classification of information.

(b) Each guide shall be approved personally and in

writing by an official who:

(1) has program or supervisory responsibility over

the information or is the senior agency official designated

under Section 5.3(a)(1); and

12a

(2) is authorized to classify information originally

at the highest level of classification prescribed in the

guide.

revoke waivers of the requirement to prepare classifica-

tion guides for specified classes of documents or informa-

tion. The Director of the Information Security Oversight

Office shall be notified of any waivers.

Part 3. Declassification and Downgrading

Sec. 3.1 Declassification Authority.

(a) Information shall be declassified or downgraded

as soon as national security considerations permit. Agen-

cies shall coordinate their review of classified information

with other agencies that have a direct interest in the

subject matter. Information that continues to meet the

classification requirements prescribed by Section 1.3

despite the passage of time will continue to be protected

in accordance with this Order.

(b) Information shall be declassified or downgraded

by the official who authorized the original classification,

if that official is still serving in the same position; the

originator’s successor; a supervisory official of either; or

officials delegated such authority in writing by the

agency head or the senior agency official designated pur-

suant to Section 5.3(a)(1).

sight Office determines that information is classified in

violation of this Order, the Director may require the infor-

mation to be declassified by the agency that originated

the classification. Any such decision by the Director may

13a

be appealed to the National Security Council. The infor-

mation shall remain classified, pending a prompt decision

on the appeal.

(d) The provisions of this Section shall also apply to

agencies that, under the terms of this Order, do not have

original classification authority, but that had such author-

ity under predecessor orders.

Sec. 3.2 Transferred Information.

(a) In the case of classified information transferred

in conjunction with a transfer of functions, and not

merely for storage purposes, the receiving agency shall

be deemed to be the originating agency for purposes of

this Order.

(b) In the case of classified information that is not

officially transferred as described in Section 3.2(a), but

that originated in an agency that has ceased to exist and

for which there is no successor agency, each agency in

possession of such information shall be deemed to be the

originating agency for purposes of this Order. Such infor-

mation may be declassified or downgraded by the agency

in possession after consultation with any other agency

that has an interest in the subject matter of the informa-

tion.

National Archives of the United States shall be declas-

sified or downgraded by the Archivist of the United

States in accordance with this order, the directives of the

Information Security Oversight office, and agency guide-

lines.

l4a

Sec. 3.3. Systematic Review for Declassification.

(a) The Archivist of the United States shall, in accor-

dance with procedures and timeframes prescribed in the

Information Security Oversight Office’s directives imple-

menting this Order, systematically review for declas-

sification or downgrading (1) classified records

accessioned into the National Archives of the United

States, and (2) classified presidential papers or records

under the Archivist’s control. Such information shall be

reviewed by the Archivist for declassification or down-

brading [sic] in accordance with systematic review guide-

lines that shall be provided by the head of the agency that

originated the information, or in the case of foreign gov-

ernment information, by the Director of the Information

Security Oversight Office in consultation with interested

agency heads.

(b) Agency heads may conduct internal systematic

review programs for classified information originated by

their agencies contained in records determined by the

Archivist to be permanently valuable but that have not

8 accessioned into the National Archives of the United

tates.

Secretary of Defense may establish special procedures for

systematic review for declassification of classified cry-

tologic [sic] information, and the Director of Central

Intelligence may establish special procedures for system-

atic review for declassification of classified information

pertaining to intelligence activities (including special

activities), or intelligence sources or methods.

15a

Sec. 3.4 Mandatory Review for Declassification.

(a) Except as provided in Section 3.4(b), all informa-

tion classified under this Order or predecessor orders

shall be subject to a review for declassification by the

originating agency, if:

(1) the request is made by a United States citizen or

permanent resident alien, a federal agency, or a State or

local government; and

(2) the request describes the document or material

containing the information with sufficient specificity to

enable the agency to locate it with a reasonable amount of

effort.

(b) Information originated by a President, the White

House Staff, by committees, commissions, or boards

appointed by the President, or others specifically provid-

ing advice and counsel to a President or acting on behalf

of a President is exempted from the provisions of Section

3.4(a). The Archivist of the United States shall have the

authority to review, downgrade and declassify informa-

tion under the control of the Administrator of General

Services or the Archivist pursuant to sections 2107, 2107

note, or 2203 of title 44, United States Code. Review

procedures developed by the Archivist shall provide for

consultation with agencies having primary subject matter

interest and shall be consistent with the provisions of

applicable laws or lawful agreements that pertain to the

respective presidential papers or records. Any decision

by the Archivist may be appealed to the Director of the

Information Security Oversight Office. Agencies with pri-

mary subject matter interest shall be notified promptly of

the Director’s decision on such appeals and may further

l6a

appeal to the National Security Council. The information

shall remain classified pending a prompt decision on the

appeal.

declassification shall declassify information no longer

requiring protection under this Order. They shall release

this information unless withholding is otherwise autho-

rized under applicable law.

(d) Agency heads shall develop procedures to pro-

cess requests for the mandatory review of classified infor-

mation. These procedures shall apply to information

classified under this or predecessor orders. They shall

also provide a means for administratively appealing a

denial of a mandatory review request.

(e) The Secretary of Defense shall develop special

procedures for the review of cryptologic information, and

the Director of Central Intelligence shall develop special

procedures for the review of information pertaining to

intelligence activities (including special activities), or

intelligence sources or methods, after consultation with

affected agencies. The Archivist shall develop special pro-

cedures for the review of information accessioned into

the National Archives of the United States.

(f) In response to a request for information under

the Freedom of Information Act, the Privacy Act of 1974,

or the mandatory review provisions of this Order:

(1) An agency shall refuse to confirm or deny the

existence or non-existence of requested information

whenever the fact of its existence or non-existence is itself

classifiable under this Order.

17a

(2) When an agency receives any request for docu-

ments in its custody that were classified by another

agency, it shall refer copies of the request and the

requested documents to the originating agency fos pre

cessing, and may, after consultation with the originating

agency, inform the requester of the referral. In cases in

which the originating agency determines in writing that a

response under Section 3.4(f)(1) is required, the referring

agency shall respond to the requester in accordance with

that Section.

Part 4 Safeguarding

Sec. 4.1 General Restrictions on Access.

(a) A person is eligible for access to classified infor-

mation provided that a determination of trustworthiness

has been made by agency heads or designated officials

and provided that such access is essential to the accom-

plishment of lawful and authorized Government pur-

poses.

(b) Controls shall be established by each agency to

ensure that classified information is used, processed,

stored, reproduced, transmitted, and destroyed only

under conditions that will provide adequate protection

and prevent access by unauthorized persons.

outside the executive branch except under conditions that

ensure that the information will be given protection

equivalent to that afforded within the executive branch

18a

(d) Except as provided by directives issued by the

President through the National Security Council, classi-

fied information originating in one agency may not be

disseminated outside any other agency to which it has

been made available without the consent of the originat-

ing agency. For purposes of this section, the Department

of Defense shall be considered one agency.

Sec. 4.2 Special Access Programs.

(a) Agency heads designated pursuant to Section

1.2(a) may create special access programs to control

access, distribution, and protection of particularly sensi-

tive information classified pursuant to this Order or pred-

ecessor orders. Such programs may be created or

continued only at the written direction of these agency

heads. For special access programs pertaining to intel-

ligence activities (including special activities but not

including military operational, strategic and tactical pro-

grams), or intelligence sources or methods, this function

will be exercised by the Director of Central Intelligence.

(b) Each agency head shall establish and maintain a

system of accounting for special access programs. The

Director of the Information Security Oversight Office,

consistent with the provisions of Section 5.2(b)(4), shall

have non-delegable access to all such accountings.

Sec. 4.3 Access by Historical Researchers and For-

mer Presidential Appointees.

(a) The requirement in Section 4.1(a) that access to

classified information may be granted only as is essential

19a

to the accomplishment of authorized and lawful Govern-

ment purposes may be waived as provided in Section

4.3(b) for persons who:

(1) are engaged in historical research projects, or

(2) previously have occupied policy-making posi-

tions to which they were appointed by the President.

(b) Waivers under Section 4.3(a) may be granted

only if the originating agency:

(1) determines in writing that access is consistent

with the interest of national security;

(2) takes appropriate steps to protect classified

information from unauthorized disclosure or compro-

mise, and ensures that the information is safeguarded in

a manner consistent with this Order; and

(3) limits the access granted to former presidential

appointees to items that the person originated, reviewed,

signed, or received while serving as a presidential

appointee.

Part 5 Implementation and Review

Sec. 5.1 Policy Direction.

(a) The National Security Council shall provide

overall policy direction for the information security pro-

gram.

(b) The Administrator of General Services shall be

responsible for implementing and monitoring the pro-

gram established pursuant to this Order. The Administra-

tor shall delegate the implementation and monitorship

20a

functions of this program to the Director of the Informa-

tion Security Oversight Office.

Sec. 5.2 Information Security Oversight Office.

(a) The Information Security Oversight Office shall

have a full-time Director appointed by the Administrator

of General Services subject to approval by the President.

The Director shall have the authority to appoint a staff for

the office.

(b) The Director shall:

(1) develop, in consultation with the agencies, and

promulgate, subject to the approval of the National Secu-

rity Council, directives for the implementation of this

Order, which shall be binding on the agencies;

(2) oversee agency actions to ensure compliance

with this Order and implementing directives;

(3) review all agency implementing regulations and

agency guidelines for systematic declassification review.

The Director shall require any regulation or guideline to

be changed if it is not consistent with this Order or

implementing directives. Any such decision by the Direc-

tor may be appealed to the National Security Council.

The agency regulation or guideline shall remain in effect

pending a prompt decision on the appeal;

(4) have the authority to conduct on-site reviews of

the information security program of each agency that

generates of [sic] handles classified information and to

require of each agency those reports, information, and

other cooperation that may be necessary to fulfill the

Director's responsibilities. If these reports, inspections, or

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access to specific categories of classified information

would pose an exceptional national security risk, the

affected agency head or the senior official designated

under Section 5.3(a)(1) may deny access. The Director

may appeal denials to the National Security Council. The

denial of access shall remain in effect pending a prompt

decision on the appeal;

(5) review requests for original classification

authority from agencies or officials not granted original

classification authority and, if deemed appropriate, rec-

ommend presidential approval;

(6) consider and take action on complaints and sug-

gestions from persons within or outside the Government

with respect to the administration of the information

security program;

(7) have the authority to prescribe, after consulta-

tion with affected agencies, standard forms that will pro-

mote the implementation of the information security

program;

(8) report at least annually to the President through

the National Security Council on the implementation of

this Order; and

(9) have the authority to convene and chair inter-

agency meetings to discuss matters pertaining to the

information security program.

Sec. 5.3. General Responsibilities.

Agencies that originate or handle classified informa-

tion shall:

22a

(a) designate a senior agency official to direct and

administer its information security program, which shall

include an active oversight and security education pro-

gram to ensure effective implementation of this Order;

(b) promulgate implementing regulations. Any

unclassified regulations that establish agency information

security policy shall be published in the Federal Register

to the extent that these regulations affect members of the

public;

access to classified information, including procedures

that (i) require that a demonstrable need for access to

classified information is established before initiating

administrative clearance procedures, and (ii) ensure that

the number of persons granted access to classified infor-

mation is limited to the minimum consistent with opera-

tional and security requirements and needs; and

(d) develop special contingency plans for the pro-

tection of classified information used in or near hostile or

potentially hostiie areas.

Sec. 5.4 Sanctions.

(a) If the Director of the Information Security Over-

sight office finds that a violation of the Order or its

implementing directives may have occurred, the Director

shall make a report to the head of the agency or to the

senior official designated under Section 5.3(a)(1) so that

corrective steps, if appropriate, may be taken.

23a

(b) officers and employees of the United States Gov-

ernment, and its contractors, licensees, and grantees shall

be subject to appropriate sanctions if they:

(1) knowingly, willfully, or negligently disclose to

unauthorized persons information properly classified

under this order or predecessor orders;

(2) knowingly and willfully classify or continue the

classification of information in violation of this Order or

any implementing directive; or

(3) knowingly and willfully violate any other provi-

sion of this Order or implementing directive.

without pay, removal, termination of classification

authority, loss or denial of access to classified informa-

tion, or other sanctions in accordance with applicable law

and agency regulation.

(d) Each agency head or the senior official desig-

nated under Section 5.3(a)(1) shall ensure that appropri-

ate and prompt corrective action is taken whenever a

violation under Section 5.4(b) occurs. Either shall ensure

that the Director of the Information Security Oversight

Office is promptly notified whenever a violation under

Section 5.4 (b)(1) or (2) occurs.

Part 6 General Provisions

Sec. 6.1 Definitions.

(a) “Agency” has the meaning provided at 5 USC

552(e).

24a

(b) “Information” means any information or mate-

rial, regardless of its physical form or characteristics, that

is owned by, produced by or for, or is under the control of

the United States Government.

tion that has been determined pursuant to this Order or

any predecessor order to require protection against

unauthorized disclosure and that is so designated.

(d) “Foreign government information” means:

(1) information provided by a foreign government

or governments, an international organization of govern-

ments, or any element thereof with the expectation,

expressed or implied, that the information. the source of

the information, or both, are to be held in confidence; or

(2) information produced by the United States pur-

suant to or as a result or a joint arrangement with a

foreign government or governments or an international

organization of governments, or any element thereof,

requiring that the information, the arrangement, or both,

are to be held in confidence.

(e) “National security” means the national defense

or foreign relations of the United States.

(f) “Confidential source” means any individual or

organization that has provided, or that may reasonably

be expected to provide, information to the United States

on matters pertaining to the national security with the

expectation, expressed or implied, that the information or

relationship, or both, be held in confidence.

(g) “Original classification” means an initial deter-

mination that information requires, in the interest of

25a

national security, protection against unauthorized dis-

closure, together with a classification designation signify-

ing the level of protection required.

Sec. 6.2 General.

(a) Nothing in this Order shall supersede any

requirement made by or under the Atomic Energy Act of

1954, as amended. “Restricted Data” and “Formerly

Restricted Data” shall be handled, protected, classified,

downgraded, and declassified in conformity with the pro-

visions of the Atomic Energy Act of 1954, as amended,

and regulations issued under that Act.

(b) The Attorney General, upon request by the head

of an agency or the Director of the Information Security

Oversight office, shall render an interpretation of this

Order with respect to any question arising in the course

of its administration.

afforded any information by other provisions of law.

(d) Executive Order No. 12065 of June 28, 1978, as

amended, is revoked as of the effective date of this Order.

(e) This order shall become effective on August 1,

1982.

Ronald Reagan

The White House, April 2, 1982.

[Filed with the Office of the Federal Register, 2°52

p.m., April 2, 1982]

LANGUAGE: ENGLISH

26a

67TH DOCUMENT of Level 2 printed in FULL format.

Public Papers of the Presidents

April 17, 1995

CITE: 31 Weekly Comp. Pres. Doc. 633

LENGTH: 616 words

HEADLINE: Statement on Signing the Executive Order

on Classified National Security Information

BODY:

Today | have signed an Executive order reforming

the Government's system of secrecy. The order will lift

the veil on millions of existing documents, keep a great

many future documents from ever being classified, and

still maintain necessary controls over information that

legitimately needs to be guarded in the interests of

national security.

In issuing this order, | am seeking to bring the system

for classifying, safeguarding, and declassifying national

security information into line with our vision of Ameri-

can democracy in the post-Cold War world.

This order strikes an appropriate balance. On the one

hand, it will sharply reduce the permitted level of secrecy

within our Government, making available to the Ameri-

can people and posterity most documents of permanent

historical value that were maintained in secrecy until

now.

On the other, the order enables us to safeguard the

information that we must hold in confidence to protect

our Nation and our citizens. We must continue to protect

information that is critical to the pursuit of our national

27a

security interests. There are some categories of informa-

tion - for example, the war plans we may employ or the

identities of clandestine human assets - that must remain

protected.

This order also will reduce the sizable costs of

secrecy - the tangible costs of needlessly guarding docu-

ments and the intangible costs of depriving ourselves of

the fullest possible flow of information.

This order establishes many firsts: Classifiers will

have to justify what they classify; employees will be

encouraged and expected to challenge improper classi-

fication and protected from retribution for doing so; and

large-scale declassification won't be dependent on the

availability of individuals to conduct a line-by-line

review. Rather, we will automatically declassify hundreds

of millions of pages of information that were classified in

the past 50 years.

Similarly, we will no longer tolerate the excesses of

the current system. For example, we will resolve doubtful

calls about classification in favor of keeping the informa-

tion unclassified. We will not permit the reclassification

of information after it has been declassified and disclosed

under proper authority. We will authorize agency heads

to balance the public interest in disclosure against the

national security interest in making declassification deci-

sions. And, we will no longer presumptively classify

certain categories of information, whether or not the

specific information otherwise meets the strict standards

for classification. At the same time, however, we will

maintain every necessary safeguard and procedure to

28a

assure that appropriately classified information is fully

protected.

Taken together, these reforms will greatly reduce the

amount of information that we classify in the first place

and the amount that remains classified. Perhaps most

important, the reforms will create a classification system

that Americans can trust to protect our national security

in a reasonable, limited, and cost-effective manner.

In keeping with my goals and commitments, this

order was drafted in an unprecedented environment of

openness. We held open hearings and benefitted from the

recommendations of interested Committees of Congress

and nongovernmental organizations, groups, businesses,

and individuals. The order I have signed today is stron-

ger because of the advice we received from so many

sources. I thank all those who have helped to establish

this new system as a model for protecting our national

security within the framework of a Government of, by,

and for the people.

William J. Clinton

The White House, April 17, 1995.

LANGUAGE: ENGLISH

LOAD-DATE: May 16, 1995

29a

Case Control No. 9502026

Requester: Weatherhead

Ms. Rachel Webb

British Embassy

3100 Massachusetts Avenue, N.W.

Washington, D.C. 20008

Dear Ms. Webb:

We have received a request under a provision of U.S. law

for release of the enclosed document.

Before complying with this request, we would appreciate

the concurrence of your government in the release of the

document. Should your government wish to release only

a part of this material, please indicate with brackets the

portions you wish withheld.

In responding to our letter, please refer to the case control

number shown above and return the document to us.

Thank you for your cooperation.

Sincerely,

Joseph P. Leahy

Liaison Officer

Office of Freedom of

Information, Privacy, and

Classification Review

Enclosure:

One document; total pages two.

KENNEDY DECLARATION

CIVIL ACTION NO. 95-0519

EXHIBIT 1

[LOGO]

British Embassy

Washington

3100 Massachusetts Ave., N.W.

Washington D.C. 20006-3600

Telephone: (202)

Facsimile: (202) 898-4241

898-4255

Mr Joseph P Leahy

Liaison Officer

Office of Freedom of Information

Privacy & Classification Review

State Department

Dear Mr. Leahy,

DECLASSIFICATION REQUEST: CASE CONTROL

NUMBER 9502026

I am writing in response to your letter dated 4 August.

The Foreign and Commonwealth Office have reviewed

the attached document and after careful consideration,

are unable to agree to its release. The Home Office have

advised that the normal line in cases like this is that all

correspondence between Governments is confidential

unless papers have been formally requisitioned by the

defence. In this particular case, requests from representa-

tives of the defendants for sight of the letter have already

been refused on grounds of confidentiality.

Our Library and Records Department would also be con-

cerned about the precedent set by releasing even part of

the letter since any such development would quickly

3la

become common knowledge amongst lawyers dealing

with extradition matters.

Yours Sincerely,

Rachel Webb

KENNEDY DECLARATION

CIVIL ACTION NO. 95-0519

EXHIBIT 2

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.