Amicus Curiae Brief — United States v. Weatherhead

| Supreme Court, U.S.

FILED

10 1999

No. 98-1904 NOV 19

IN THE

SUPREME COURT OF THE UNITED

OCTOBER TERM, 1999

UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF

JUSTICE; AND UNITED STATES DEPARTMENT OF STATE,

Petitioners,

Vv.

LESLIE R. WEATHERHEAD,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF CENTER FOR NATIONAL

SECURITY STUDIES, THE NATIONAL SECURITY

ARCHIVE, THE FEDERATION OF AMERICAN

SCIENTISTS, AND THE AMERICAN CIVIL LIBERTIES

UNION AS AMICI CURIAE SUPPORTING RESPONDENT

Mark H. Lynch

Counsel of Record

Kate Martin Jay T. Smith

CENTER FOR NATIONAL Elizabeth A. Snodgrass

SECURITY STUDIES Gregory M. Williams

National Security Archive Gerald J. Russello

2130 H Street, N.W., Suite 701 COVINGTON & BURLING

Washington D.C. 20037 1201 Pennsylvania Ave., N.W.

(202) 944-7060 P.O. Box 7566

| Washington, D.C. 20044-7566

(202) 662-5544

Counsel for Amici Curiae

| Additional Counsel

November 19, 1999 Listed Inside Cover

Louis M. Bograd

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

1875 Connecticut Avenue, N.W.

Washington, D.C. 20009

(202) 234-1817

Steven R. Shapiro

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

125 Broad Street

New York, New York 10004

(212) 549-2500

TABLE OF CONTENTS

Page

ee ED scncisteicratsrusttensincmatesreenesensveninete ill

SIE GEE TRUE ARIE - cinotccnensecncocdutanténseenacsatonseeseniooses

SUMMARY OF ARGUMENT. ..........:..ccsccsccsssssscessesscneeseseees

1. THE COURT SHOULD DECLINE THE

GOVERNMENT’S INVITATION TO

ADDRESS CONSTITUTIONAL ISSUES

NOT CLEARLY PRESENTED ................:0cccssseesee0s

Il THE GOVERNMENT'S PROPOSED

“UTMOST DEFERENCE” STANDARD

CONTRADICTS THE LANGUAGE AND

LEGISLATIVE HISTORY OF FOIA ...............0000

Il. ©THE CONSTITUTION DOES NOT

MANDATE “UTMOST DEFERENCE”

TO AN AGENCY’S INVOCATION OF

ETS Te ae

A. Congress Has The Constitutional

Authority To Subject Agency

Determinations Under FOIA

Exemption | To De Novo Review .................

l. Congress And The President

Share Responsibility For Foreign

REESE SS aD

2. Congress Has Repeatedly

Exercised Its Constitutional

Authority Over The Management

And Disclosure Of National

B. The Constitution Does Not Mandate

That The Judiciary Afford “Utmost

Deference” To Executive Branch

Classification Decisions ...............cc.c..+000000 16

MEANINGFUL JUDICIAL REVIEW DOES

NOT THREATEN UNITED STATES

FOREIGN POLICY AND IS ESSENTIAL

TO PROTECT OTHER VALUEG.............cccccccssseees 22

CEFIUG ARES ercnincnsmscncscscsinisnesidestetstichtenimsioaiamaidsianbiiicai 26

!

TABLE OF AUTHORITIES

Page

Cases

A. Michael's Piano, Incr vy. FTC,

18 F.3d 138 (2d Cir. 1994) 002s 7, 8,22

American Foreign Service Association

v. Garfinkel, 490 U.S. 153 (1989) ................. 4,15

Baker v. Carr, 369 U.S. 186 (1962) ........c.cccccccceeseeee 18

Barenbiatt v. United States, 360 U.S.

I tidinitlicieccdinesibigtencilipiemiaiiimapiaienetuns 12

Buckley v. Valeo, 424 U.S. 1 (1976) ......cccccccccceceesees 13

Central Intelligence Agency v. Sims,

ok 11,12

Chicago & Southern Air Lines v.

Waterman S.S. Corp, 333 U.S.

SE I clntnicccansaptiiblidstndiiiniodsbaaenti 13, 18, 19

Clinton v. Jones, 520 U.S. 681 (1997) .......cccccccccceeee 22

Conroy v. Aniskoff, 507 U.S. 511 (1993) ..........c..00000+ 6

Department of Navy v. Egan, 484 U.S.

Fel GND ccssichiniiicinsattsiesitnibiniariaditicmaieiceetichipuabianitity 13

EPA v. Mink, 410 U.S. 73 (1973)...........ccceseseeeee 4,12

Goldwater v. Carter, 444 U.S. 996 (1979)............... 18

Haig v. Agee, 453 U.S. 280 (1981) ........cccccccceeeeenees 12

Halpern v. FBI, 181 F.3d 279 (2d Cir. 1999)............. 7

Immigration & Naturalization Service

v. Chadha, 462 U.S. 919 (1983) .......ccccccccceeeeees 13

Japan Whaling Association v. American

Cetacean Society, 478 U.S. 221 (1986).............. 17

Little v. Barreme, 6 U.S. (2 Cranch)

FFP Ce cibssdbcerestinesenensicntieastiniilinsntentinepmsenens 14

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

BEE EE TE 8

McGrain v. Daugherty, 273 U.S. 135 (1927)........... 12

- iii -

Morrison v. Olson, 487 U.S. 654 (1988)............ 11,14

New York Times v. United States,

SED TRG Fad Gr cet eccietetntorieeniteinltiobinans 24

Nixon v. Administrator of General

Services, 433 U.S. 425 (1977) ...........ccccceeeeee 12,14

Ray v. Turner, 587 F.2d 1187

GS, Le ciattiindihntacncinainnintlitaiaasetainatensiiiai 6, 7,21

United States v. Curtiss-Wright Export

Carp... 299 U.S. 306 (1G86) .xcieservsnssccsssvsercnsecsesnees 9

United States v. Nixon, 418 U.S. 683 (1974) ........... 12

United States v. Reynolds, 345 U.S. 1 (1993).......... 20

United States v. United States District Court,

gk! fi ee 20, 21

Weinberger v. Catholic Action, 454 U.S. 139

SOE D accicenentitihedliitiiniabeinenciinntsinesteniiecnneacensisiies 8

Youngstown Sheet & Tube Co. v. Sawyer,

ED Te, Fee tcrteinncnttdiatieaitinciivie 9,10

Statutes and Constitutional Provisions

i: Gs F 4&4) eee een 11

oe Bg) Re ne eee 11

8 BW > REE EE re ees 11

TE > SE a Tee weer 18

Continuing Resolution for Fiscal Year

& 5 & . sonra ener a 15

Nazi War Crimes Disclosure Act,

Ss Se aicinteldlit cai adaincsinnnsimperintcniimvaticindaiin 16

Omnibus Consolidated Appropriations

Act 1997, 110 Stat. 3009 02. cccecceeceeeeeeenees 15

President John F. Kennedy Assassination

Records Collection Act of 1992,

De Ns Se aichcinhiceanis ceieiiiiniadidaitgmcunictnnnaniane 16

DT We eR icteesschinitincenblbniaieanieitinndicizndiidinaes 2, 4,5

FE lee OS eecidtpchkineneichihpiadiipentnitiianageliintie 16

Els et wi itiiccrititnctditedtinintsicannietpiciigiciellibiniatii 15

-iv-

Legislative & Executive Materials & Rules

Civil and Political Rights in the United

States, Initial Report of the United

States of America to the United

Nations Human Rights Committee under

the International Covenant on Civil and

Political Rights, July 1994 200000... cccceeeeeeeee 25

120 Cong. Rec. 17028 (1974) .............cccccesceeseceeeeees 21

Exec. Order 12,356, 3 C.F.R. 169 (1983) ................ 23

Exec. Order No. 12,958, 3 C.F.R. 333

(RENEE ATR RE SCR. AS MCE AP ne i Se Or 3, 23

H.R. Doc. No. 93-383, 93d Cong.,

I I 5

ee RIT Ree ES I CRT a 15

Senate Committee on the Judiciary and

House Committee on Government

Operations, Freedom of Information

Act and Amendments of 1974

(P.L. 93-502): Source Book (1975) ........... 5, 7,24

8 EE RC Tee 23

ANN ME ialischnetbiticdinpidinnnestcdgnabsosiapesnicataniiitedin 6

as EE ERAN: cnceniaibacehesietsipnasachintianiabbeniioely 15

8 2 REE EE eee ee 1

ts PU nhittinisatiecaiestgatsiianivbaithaiasibliapesecatinitinn l

Miscellaneous

Raoul Berger, Executive Privilege:

A Constitutional Myth (1974) ..0.......cccccceeeeeeeeee 14

The Federalist No. 80 (Alexander Hamilton)

(Clinton Rossiter ed., 1961) ...........cccccccceeeeeeeeees 18

Erwin N. Griswold, Secrets Not Worth

Keeping, Wash. Post, Feb. 15,

NPA MEE ctididitldsahinisancnsberiensinnpeemaiessoncmnptoconicens 24

Louis Henkin, Foreign Affairs and the

United States Constitution (2d ed. 1996) ........... 18

Dana Priest, The Battle Inside Headquarters:

-V-

Tension Grew With Divide Over Strategy,

Wash. Post., Sept. 21, 1999, at Al .............00.

Dana Priest, Bombing By Committee:

France Balked At NATO Targets,

Wash. Post., Sept. 20, 1999, at Al 0000.00.00...

Stephen W. Stathis, Executive Cooperation:

Presidential Recognition of the

Investigative Authority of Congress and the

Courts, 3 J. L. & Pol. 183 (1986)...

10 Works of Thomas Jefferson

een, Ce

The Writings of James Madison (G. Hunt

INTEREST OF THE AMICI

The Center for National Security Studies is a

nongovernmental, nonprofit civil liberties organization that

works to ensure that government actions undertaken in

genuine pursuit of national security interests do not have the

effect of violating the rights of individuals or undermining

constitutional government. Since 1975, the Center has

worked to secure the public’s right to know about foreign

policy and national defense matters.’

The National Security Archive is an independent research

institute and library located at the George Washington

University. The Archive collects and publishes declassified

documents obtained through the Freedom of Information Act

concerning United States foreign policy and national security

matters. Through litigation and public advocacy, it also

works to defend and expand public access to government

information.

The Federation of American Scientists (FAS), which was

founded in 1945 by Manhattan Project scientists to promote

nuclear arms control, is a national organization of 2,000

scientists and engineers including 57 Nobel laureates. FAS

today conducts policy research and advocacy on a range of

national security policy issues. In the course of its activities,

FAS depends upon reliable access to government information

and routinely utilizes the Freedom of Information Act.

' Letters of consent to the filing of this brief have been lodged

with the Clerk of the Court pursuant to Rule 37.3. Pursuant to

Rule 37.6, counsel for amici states that no counsel for a party

authored this brief in whole or in part and no person, other than

amici, their members, or their counsel made a

contribution to the preparation or submission of this brief.

a

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with nearly

300,000 members dedicated to the principles embodied in the

Bill of Rights. The ACLU has been deeply involved, since

its founding in 1920, in the clash between government claims

of national security and the people’s right to know what their

government is doing. At times, that clash takes the form of

direct government restraints on speech; in other cases, it

centers on government efforts to restrict access to

information that is presumptively public. The ACLU has

appeared before this Court on numerous occasions to help

resolve that conflict.

SUMMARY OF ARGUMENT

As demonstrated in Respondent’s brief, the showing

made by the government to justify its withholding of

information under Exemption 1 to the Freedom of

Information Act (“FOIA”), 5 U.S.C. §552, was in

contravention of the plain terms of a controlling Executive

Order. Because this ground is sufficient for affirmance of the

court of appeals’ decision, there is no reason for the Court to

address either the proper standard of review in Exemption |

cases or the government’s sweeping claims concerning

separation of powers in the realm of foreign affairs.

If the Court nevertheless chooses to address these issues,

it should reject the government’s claim ihat Congress

intended to adopt an “utmost Geicicuce” standard of review

under Exemption | of FOIA. The language of FOIA

expressly requires “de novo” review and the legislative

history of FOIA makes clear that Congress intended this

review to be searching and independent.

FOIA’s provision for de novo review creates no

separation of powers problem. Congress’ concurrent power

over national security and foreign affairs information is well

established and contradicts the government’s sweeping claim

s*.

that the executive has plenary and exclusive control in this

area. The Constitution also imposes no general disability on

the judiciary in cases affecting the Nation’s foreign relations.

Rather, in such cases, courts retain their authority and

responsibility independently to review the executive’s

“foreign affairs” and “national security” claims.

Finally, the Court should not overlook the fact that

Congress in enacting FOIA and the President in issuing the

current Executive Order set a standard of openness for the

United States government. This standard exemplifies this

Nation’s most basic values and traditions and allows the

United States to be a model of openness for the rest of the

world. The position taken by the government in this case

threatens both.

ARGUMENT

I. THE COURT SHOULD DECLINE THE

GOVERNMENT?’S INVITATION TO ADDRESS

CONSTITUTIONAL ISSUES NOT CLEARLY

PRESENTED.

Although the government devotes the majority of its brief

to constitutional argument over the separation of powers, the

court of appeals’ decision simply does not pose a

constitutional problem. As Respondent demonstrates in his

brief, the showing made by the agency in this case was

inadequate under the plain terms of the Executive Order

issued by President Clinton, Exec. Order No. 12,958, 3

C.F.R. 333 (1996), Pet. App. 66a-llla (“Clinton Order”).

Accordingly, there is no occasion for the Court to consider

whether government affidavits are entitled to “utmost

deference” under FOIA or to explore the constitutional

implications of de novo review. The government’s attempt to

use the Constitution as a tool to twist the meaning of FOIA is

directly contrary to this Court’s policy of not “pronounc[ing]

upon the relative constitutional authority of Congress and the

.

Executive Branch unless it finds it imperative to do so.”

American Foreign Service Ass'n v. Garfinkel, 490 U.S. 153,

161 (1989).

Indeed, as detailed in Part III.A below, any decision in

this case addressing the separation of powers between

Congress and the President in the area of foreign affairs will

potentially affect a wide variety of congressional enactments

that currently strike a balance between the political branches

in the management of national security information. Rather

than enter this thicket unnecessarily, the Court should decline

to address the government’s constitutional claims.

II. THE GOVERNMENT’S PROPOSED “UTMOST

DEFERENCE” STANDARD CONTRADICTS

THE LANGUAGE AND _ LEGISLATIVE

HISTORY OF FOIA.

The government argues that when Congress amended the

Freedom of Information Act in 1974, it adopted President

Ford’s position that courts should uphold a classification

decision if there is any “reasonable basis to support it.” Pet.

Br. 46. This argument, unsupported by the text and

legislative background to the amendments, is nothing less

than an attempt to rewrite history.

The plain language of FOIA states that when reviewing

an agency’s non-disclosure determination, “the court shall

determine the matter de novo” and “the burden is on the

agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B). In

EPA v. Mink, 410 U.S. 73 (1973), this Court interpreted

Exemption | (as originally enacted) narrowly, ruling that

FOIA did not permit in camera inspection of documents

containing national security information and thus did not

authorize the review of classified documents to separate non-

secret material for disclosure. Congress reacted promptly,

specifically amending FOIA to override the Mink decision.

In addition to providing for in camera inspection, Congress

aie

also amended the statute to specify that materials may be

withheld only if they “are in fact properly classified pursuant

to [an] Executive Order.” 5 U.S.C. § 552(b)(1 (B).

In vetoing the 1974 FOIA amendments, President Ford

wrote that under those amendments, if a judge found both the

government’s and the plaintiff's positions to be reasonable,

the government would not have met its burden. His veto

message proposed that Congress instead provide that an

agency decision be upheld if there is any “reasonable basis to

support it.” Message from the President Vetoing H.R.

12,471, H.R. Doc. No. 93-383, 93d Cong., 2d Sess., at (II)

(1974). Congress responded by overriding the President's

veto by a supermajority vote. There is no way to characterize

this legislative override as Congress accepting the President's

proposed standard.”

As the government has noted, the House and Senate

conferees on the 1974 FOIA amendments stated their

expectation that courts would in practice accord “substantial

weight” to an agency affidavit explaining why disclosure ofa

document might damage national security. On this snippet of

legislative history rests the government’s argument that

; vernment’s out-of-context quotation from Representative

Mowed does redpranions their iden: Pet. Br. 45. It is clear

from the full quote that Representative Moorhead was responding

to the President’s statement that “the courts would consider all

attendant evidence” in assessing the classification, and was not

addressing the substantive standard the President ey House

Action and Vote on Presidential Veto, 93d Cong., 2d Sess. (1974),

reprinted in Senate Committee on the Judiciary and House

Committee on Government Operations, Freedom of Information

Act and Amendments of 1974 (P.L. 93-502): Source Book 405

(1975) (“ Book”) (“{IJn the procedural handling of [FOIA]

cases . . . this is exactly the way the courts would conduct their

proceedings.”) (Rep. Moorhead).

af

Congress required that judges accord “utmost deference” to

the government in Exemption 1 cases. °

The conferees’ expectation, however, was not a

requirement, and no change was made to the standard of de

novo review. It is fundamental that such legislative history

cannot override the plain language of a statute.’ The

conferees were simply stating their belief that courts would

give substantial weight, not deference, to detailed

government affidavits in the same way that any finder of fact

may give substantial weight to evidence that it finds

persuasive from knowledgeable or expert witnesses. The

proponents of de novo review in Congress stressed “the need

for an objective, independent judicial determination, and

insisted that judges could be trusted to approach the national

security determinations with common sense, and without

jeopardy to national security.” Ray v. Turner, 587 F.2d 1187,

* With regard to Exemption | in particular, the Conference Report

expressly stated that the 1974 Amendments were intended to

override Mink by allowing in camera inspection of documents by

the court “as part of their de novo determination.” S. Rep. No.

1200, at 12. It then stated that:

[T]he conferees recognize that the Executive departments

responsible for national defense and foreign policy matters

have unique insights into what adverse affects might occur

as a result of public disclosure of a particular classified

record. Accordingly, the conferees expect that Federal

courts, in making de novo determinations in section

552(b)(1) cases under the Freedom of Information law,

will accord substantial weight to an agency’s affidavit

concerning the details of the classified status of the

disputed record.

Id.

* See, e.g., Conroy v. Aniskoff, 507 U.S. 511, 518 (1993) (Scalia,

J., concurring) (“The greatest defect of legislative history is its

illegitimacy. We are governed by laws, not by the intentions of

legislators.”).

ow

1194 nn.18-19 (D.C. Cir. 1978) (per curiam) {citing

statements by Senators Muskie, Ervin, and Chiles). The

conference committee, by stating its expectation regarding

substantial weight, “countered th[e] image [of judges making

reckless disclosures] by registering its anticipation that

rational judges conducting de novo reviews would naturally

be impressed by any special knowledge, experience, and

reasoning demonstrated by agencies with expertise and

responsibility in matters of defense and foreign policy.” Jd.

at 1213 (Wright, C.J., concurring). Congress therefore

“soundly rejected” the contention that judges were

unqualified to review classifications and “refused to create a

presumption in favor of agency classifications or to retreat

from full de novo review.” Id. at 1210 (Wnght, C.J.,

concurring).

The courts of appeals have repeatedly noted the

importance of the de novo standard in properly applying the

FOIA exemptions, including Exemption 1. “De novo review

was deemed essential to prevent courts reviewing agency

action from issuing a meaningless judicial imprimatur . . 7

A. Michael's Piano, Inc. v. FTC, 18 F.3d 138, 141 (2d Cir.

1994); see also Halpern v. FBI, 181 F.3d 279, 288 (2d Cir.

5 Indeed, Senator Muskie, in successfully arguing against the

President’s “reasonableness standard,” stated that “by giving

classified material a status unlike that of any other claimed

Government secret, we foster the outworn myth that only those in

possession of military and diplomatic confidences can

ise to decide with and when to share their

knowledge.” Source Book at 305. Similarly, in the House debate,

tive Moss, the primary author of the

Th, ek Gh Ss See ee ee ee ae

classified document met th orc

were “intelligence, sensitivity, commonsense and an appreciation

for the right of the le to know what their Government is doing

and why.” /d. at 257. He was fully confident that the judiciary

had these qualities, and could make those assessments. /d.

ms A

1999) (rejecting, in Exemption 1 context, more deferential

standard and applying de novo review as more consistent

with FOIA). The judicial role in reviewing the government’s

Classification decision is crucial in Exemption 1 cases, in

which the adversary process is necessarily diminished

because the plaintiff lacks access to the classified materials at

issue and often lacks the information necessary to challenge

the government’s decision. See id. at 290; McDonnell y.

United States, 4 F.3d 1227, 1241 (3d Cir. 1993). Given the

inherent limitations on advocacy in Exemption 1 cases,

adopting the “utmost deference” standard would reduce

judicial proceedings to little more than a formality, and thus

contravene the clear intent of Congress.

lil. THE CONSTITUTION DOES NOT MANDATE

“UTMOST DEFERENCE” TO AN AGENCY’S

INVOCATION OF EXEMPTION 1.

A. Congress Has The Constitutional Authority

To Subject Agency Determinations Under

FOIA Exemption 1 To De Novo Review.

In Exemption | and in FOIA more generally, Congress

sought “to balance the public’s needs for access to official

information with the Government’s need for confidentiality.”

Weinberger v. Catholic Action, 454 U.S. 139, 144 (1981). In

striking that balance, Congress placed only modest restraints

on the executive’s management of national security

information. FOIA Exemption 1 permits the President to

determine in an Executive Order what criteria govern the

classification and release of such information and requires

only that executive agencies abide by that order.

Nevertheless, the government seeks to undo even these

limited measures by arguing that the President’s

constitutional authority over foreign affairs requires a

standard of “utmost deference” that would, in effect, prevent

a court from ever ordering the release of information that the

x

executive asserts should be withheld under Exemption 1."

Although the government warns of the constitutional

implications of enforcing Exemption | as wnitten, a holding

that the executive branch is not bound by even the slight

restrictions contained in Exemption 1 would present far

graver constitutional difficulties.

1. Congress And The President Share

Responsibility For Foreign Affairs.

The government grounds its theory of “plenary and

exclusive” executive control over foreign affairs principally

on Justice Sutherland’s opinion in United States v. Curtiss-

Wright Export Corp., 299 U.S. 304 (1936). Despite Curtiss-

Wright's sweeping rhetoric, that case did not hold that

Congress was ousted from the realm of foreign policy. As

Justice Jackson observed, Curtiss- Wright “intimated that the

President might act in external affairs without congressional

authority, but not that he might act contrary to an Act of

Congress.” Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579, 636 n.2 (1952) (Jackson, J. concurring) (“Steel

Seizure Case”). Indeed, that case focused not on the

President’s foreign affairs powers, but on an unsuccessful

challenge to the delegation by Congress of some of its

foreign affairs powers to the executive. “Much of [Justice

Sutherland’s opinion] is dictum.” Id.

It is well settled that the President does not possess

exclusive authority over matters touching on the Nation’s

foreign relations. Rather, this power is shared with

: . 37 ing the “inappropriateness of courts

cmanaiien oo gdh ny = Be judgments about the need to

preserve the confidentiality of communications bearing on national

security”); id. at 38 (adverting to “President's singular authority to

maintain secrecy”) (emphasis added).

ae

Congress. As Justice Jackson’s much-quoted concurrence in

the Steel Seizure Case instructs, the President’s foreign

affairs powers “are not fixed but fluctuate, depending upon

their disjunction or conjunction with those of Congress.” /d.

at 635 (Jackson, J., concurring). In a famous passage, Justice

Jackson described the interplay of executive and legislative

power in this field:

When the President takes measures inco ™p uible with

the expressed or implied will of Congress, his power

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

own constitutional powers minus any constitutional

powers of Congress over the matter. Courts can

sustain exclusive Presidential control in such a case

only by disabling the Congress from acting upon the

subject. Presidential claim to a power at once so

conclusive and preclusive must be scrutinized with

caution, for what is at stake is the equilibnum

established by our constitutional system.

Id. at 637-38 (footnote omitted) (Jackson, J., concurring).

Justice Jackson concluded that President Truman’s attempt to

seize the steel mills was, in fact, incompatible with the

congressional will and that neither the constitutional clause

vesting the executive power in the President nor the clause

making him Commander-in-Chief conferred on the President

the authority to defeat this expression of congressional

policy. /d. at 655 (Jackson, J., concurring).

The government’s assertion that the courts must accord

the President’s classification decisions “utmost deference”

despite FOLA’s clear command to the contrary urges action

that is undoubtedly “incompatible with the expressed or

implied will of Congress.” Jd. at 637. The government’s

position therefore cannot be sustained unless (1) Congress is

constitutionally disabled from acting in this important field,

or (2) Exemption 1 “‘impermissibly undermine{s]’ the

powers of the Executive Branch, . . . or “disrupts the proper

-10-

balance between the coordinate branches [by] prevent[ing]

the Executive Branch from accomplishing its constitutionally

assigned functions.”” Morrison v. Olson, 487 U.S. 654, 695

(1988) (citations omitted; alterations in Morrison).’ Neither

proposition is true.

Although the Constitution does not expressly allocate

control over information pertaining to foreign affairs or

national security to either the executive or legislative branch,

it is clear that Congress possesses significant authority in this

area. First, the Senate plays a key foreign policy role in

advising on and consenting to treaties and in confirming the

appointment of ambassadors. U.S. Const. art. II, § 2, cl. 2.

Second, the Framers enumerated multiple powers that

Congress enjoys in the realm of foreign relations, including

broad authority to “regulate Commerce with foreign nations”

(cl. 3) and the power “to make Rules for the Government and

Regulation of the land and naval forces” (cl. 14), a grant

broad enough to include authority to regulate the

government's sensitive national security information. U.S.

Const. art. I, § 8.° Third, Congress is the repository of all the

federal government’s legislative powers, including the power

to “make all Laws” that are “necessary and proper” to carry

of Bavemment devotes several pages to the potential disclosure

of sources and methods, Congress has

3. Se Contal hase fom dco

i 471 US.

159, 181 01985) a

* Article I, section 8 of the Constitution also vests with

to “provide for the common Defence” (cl. 1), “ and

punish and Felonies committed on the high Seas, and

Offences against the Law of Nations” (cl. 10), “declare War” (cl.

11), “raise and ol cl. 12), and “provide and

maintain a Navy” (cl. power, id. art.

I, § 9, cl. de dankuhannd, in the area of foreign

icy.

oth

out not only congressional Powers but the powers of the

United States government generally. °

Finally, the Court in Mink expressly recognized that

Congress shares power over foreign affairs information when

it stated that “Congress could certainly have provided that the

Executive Branch adopt new procedures or it could have

established its own procedures [governing the disclosure of

national security information under FOIA Exemption 1] -

subject only to whatever limitations the Executive privilege

may be held to impose upon such congressional ordering.”

410 U.S. at 83; see also Nixon v. Administrator of General

Services, 433 U.S. 425, 443 (1977) (“{T]he regulation and

mandatory disclosure of documents in the possession of the

Executive Branch. . . . has never been considered invalid as

an invasion of [executive] authority.”).'°

This Court has never held that the executive has plenary

power over information pertaining to foreign affairs. In each

of the cases on which the government relies, the executive

peatagh prostrate ai go wepaihy or in the

absence of, congressional legislation.'' The decisions neither

cits Court has long recognized thet én indiapenssble adjunct to

Congress’ power to legislate is its power to investigate. See

Barenbiatt v. United States, 360 U.S. 109, 111 (1959); McGrain v.

Daugherty, 273 US. 135, 175 (1927). The government’s

argument that the executive has control over national

security information would, if accepted, eviscerate

power of investigation in a constitutionally-recognized area of vital

legislative concern.

7 Executive privi extends only to “high-level communi-

cations” between the and “close advisors.” United States

v. Nixon, 418 U.S. 683, 703, 706 (1974).

'' See Sims, 471 U.S. at 168-70 (“Congress intended to give the

Director of Central Intelligence broad power to protect the s

secrecy

and integrity of the intelligence process.”); Haig v. Agee, 453 U.S.

280, 289, 306 (1981) (“The principal question before us is whether

- 32.

eS, ag se ta 2

hold nor intimate that the President can refuse to disclose

foreign affairs information in the face of a contrary

expression of congressional will. Typical in this regard is

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

held that the Merit Systems Protection Board, in reviewing

the termination of a Navy employee, did not have the

statutory authority to review an agency’s revocation of a

security clearance. Thus, not only was the conflict in Egan

within the executive branch (between the Navy and the

Board), the question was one of statutory interpretation

rather than Executive prerogative.

The government relies on dicta in Egan for the “utmost

deference” standard it now urges on the Court. See Pet. Br.

16. However, in language not quoted in the government’s

brief, the Court explicitly acknowledged that judicial

deference gives way when Congress “specifically provides

otherwise.” Egan, 484 U.S. at 530. That is precisely what

Congress did in Exemption 1.

This Court has never struck down on separation of

powers grounds an Act of Congress that did not violate a

specific provision of the Constitution. '2 The constitutional

test in the absence of such an explicit textual commitment of

authority to the executive is whether Congress has

[the Passport Act] authorizes” the Secretary of State to revoke a

citizen’s passport on national security grounds; concluding

Congress had approved the Secretary’s authority to do so);

Chicago & Southern Air Lines v. Waterman SS. , 333 US.

103 (1948) (Congress did not intend to judicial review of

orders of the Civil Aeronautics Board citizen carriers’

splcaionso engage overseas and foreign a Wansprtabon)

Fo ay gration & Naturalization Serv. v. Chadha, 462

US. 91 946-59 SO (1983) (violating bicameralism and

presentment); Buckley v. Valeo, 424 US. 1, 143 (1976)

(appointments clause).

$13

impermissibly intruded on the President’s authority or

prevented him from accomplishing his constitutionally

assigned duties. The government cannot reasonably claim

that Exemption | does either. Although Congress has broad

authority to legislate requirements concerning national

security information, the limitations it has placed on

executive discretion in FOIA Exemption | are quite modest.

Congress requires only that the President adhere to his own

Executive Order. Put simply, Exemption 1’s de novo

standard of review falls well within the constitutional powers

of Congress."

2. Congress Has Repeatedly Exercised

Its Constitutional Authority Over

The Management And Disclosure Of

National Security Information.

The government further argues that Congress has

“acquiesced” in the President’s exercise of plenary control

over national security information. Pet. Br. 20-21. Contrary

to the government’s flawed historical account and as

constitutional scholars have detailed, Congress has

vigorously resisted the President’s efforts to withhold

information pertaining to foreign affairs since the very

founding of the Nation.'* The government’s claim is most

"See Morrison, 487 U.S. 654 (upholding independent counsel

statute because it was a modest restriction on executive authority);

Administrator of General Services, 433 U.S. at 443; Little v.

Barreme, 6 U.S. (2 Cranch) 170 (1804) (Marshall, J.) (holding

executive action subject to congressional regulation even during

undeclared war).

'* See generally Raoul Berger, Executive Privilege: A

Constitutional Myth 163-208 (1974); Stephen W. Stathis,

Executive Cooperation: Presidential Recognition of the

op og Authority of Congress and the Courts, 3 J. L. & Pol.

183 (1986).

-14-

clearly rebutted by the 1974 Amendments to FOIA

themselves, which were passed by a supermajority over

President Ford’s veto.

Far from being unique, Exemption | is but one of many

instances in which Congress has required the executive

branch to disclose national security information to either the

legislature or the public. Congress has, for example, created

an elaborate statutory structure for the oversight of

intelligence agencies, a central element of which is the

requirement that the President and the Director of Central

Latelligence keep Congress, through its Intelligence

Committees, fully and currently informed of all intelligence

activities. See Intelligence Oversight Act, 50 U.S.C. § 413

(1991). Congress, moreover, has adopted rules whereby each

House may, even over the President’s objection, declassify

and publicly release classified information originating in the

executive branch. S. Res. 400, 94th Cong.; House Rule

XLVIII, 106th Cong. Congress has passed several statutes

limiting the restraints the executive branch may impose on

employees granted access to national security information. '°

Congress also has legislated explicit declassification

standards for certain categories of information narrower than

those specified in the governing Executive Order.'®

'S See Continuing Resolution for Fiscal Year 1988, § 630, 101

ay Cory egrimente taut futid. emplayere

executive employee secrecy

from revealing “classifiable” information) (considered in

access to classified information state on their that the

agreements do not supersede or alter the right of employees to

furnish information to Congress).

‘© President John F. Kennedy Assassination Records Collection

Act of 1992, 106 Stat. 3443 (1992) (“[L]egislation is necessary

mT

In short, far from acquiescing in presidential control of

national security information, Congress has asserted its

constitutional authority in this area on countless occasions

and in numerous ways. Acceptance of the government’s

view of exclusive executive authority would cast a long

shadow over myriad congressional enactments and would

severely disrupt the equilibrium between the political

branches.

B. The Constitution Does Not Mandate That

The Judiciary Afford “Utmost Deference”

To Executive Branch Classification

Decisions.

Lacking any textual basis in the Constitution for its

“utmost deference” standard, the government resorts instead

to arguments regarding institutional competence. Pet. Br. 21-

27. Because judges are not “expert” in foreign affairs and

because the field is complex, the government contends that,

in “foreign affairs” cases, the courts’ statutory and

constitutional jurisdiction is trumped by executive power.

Although the government concedes that the judiciary is not

so incompetent as to be excluded from hearing Exemption 1

because the Freedom of Information Act, as implemented by the

executive branch, has prevented the timely public disclosure of

records relating to the assassination of President Jobn F.

Kennedy”); see also Nazi War Crimes Disclosure Act, 112 Stat.

1859 (1998) (requiring release of Nazi war criminal records

subject to statutorily prescribed exceptions); Foreign Relations of

the United States Historical Series Act, 22 U.S.C. § 4351 (Supp.

1999) (requiring that “all records needed to provide a

comprehensive documentation of the major foreign policy

decisions and actions of United States Government” be

declassified for inclusion in the State Department’s public

“Foreign Relations” series subject to statutorily prescribed

exceptions).

oe

cases entirely, id. 12, 46, it nevertheless advocates a standard

that would, in practice, render judicial proceedings little more

than a rubber stamp. As elaborated below, the Constitution

permits — and indeed requires — that courts take on a much

more meaningful role.

In Japan Whaling Association v. American Cetacean

Society, 478 U.S. 221 (1986), the petitioners urged that

certain decisions by the Secretary of Commerce deserved

utmost deference — and indeed were “unsuitable for judicial

review” — simply “because they involve(d] foreign relations.”

Id. at 229. The Court’s holding rejecting this argument bears

quoting at length:

As Baker {v. Carr] plainly held, . . . the courts

have the authority to construe treaties and executive

agreements, and it goes without saying that

interpreting congressional legislation is a recurring

and accepted task for the federal courts.... We are

cognizant of the interplay between these Amendments

and the conduct of this Nation's foreign relations, and

we recognize the premier role which both Congress

and the Executive play in this field. But under the

Constitution, one of the Judiciary’s characteristic

roles is to interpret statutes, and we cannot shirk this

responsibility merely because our decision may have

significant political overtones.

Id. at 230 (emphasis added). Japan Whaling makes it clear

that the mere fact that a case arises in the foreign affairs

context does not change the court’s basic chore or diminish

its basic competence.

Courts routinely enterjain cases that have far-reaching

implications for the Nat foreign relations without

“transgress[ing] . . . the proper boundaries of judicial

a

review,” Pet. Br. 29.'’ Indeed, the Constitution explicitly

commits to the federal courts several categories of cases that

inevitably have foreign affairs ramifications: “Cases .. .

arising under . . . Treaties”; “all Cases affecting

Ambassadors, other public Ministers and Consuls”; “all

Cases of admiralty and maritime Jurisdiction”; and

“Controversies . . . between a State, or the Citizens thereof,

and foreign States, Citizens or Subjects.” U.S. Const. art. III,

§ 2, cl. 1.’® As the Court has emphasized, despite “sweeping

statements” in the case law about the courts’ competence to

address “questions touching foreign relations,” “it is error to

suppose that every case or controversy which touches foreign

relations lies beyond judicial cognizance.” Baker v. Carr,

369 U.S. 186, 211 (1962); accord Goldwater v. Carter, 444

U.S. 996, 999-1000 (1979) (Powell, J., concurring).

In arguing to the contrary, the government principally

relies on dicta from Chicago & Southern Air Lines, Inc. v.

Waterman S.S. Corp., 333 U.S. 103 (1948). See Pet. Br. 21-

22. That case did not test the constitutional bounds of the

judiciary’s role in foreign affairs. Rather Waterman turned

'’ Even routine cases may implicate foreign relations. “{I]n our

‘one world’ in trade, finance and communication; in an age where

every occurrence may be known elsewhere, instantly — any case in

any court in the United States might become grist for transnational

mills and become of interest to U.S. foreign relations.” Louis

Henkin, Foreign Affairs and the United States Constitution 133

(2d ed. 1996).

'® Indeed, the Framers committed these cases to the jurisdiction of

the federal courts in large part because these cases had the

potential to affect the United States’ external relations. See The

Federalist No. 80, at 476 (Alexander Hamilton) (Clinton Rossiter

ed., 1961) (“As the denial or perversion of justice by the sentences

of courts, as well as in any other manner, is with reason classed

among the just causes of war, it will follow that the federal

judiciary ought to have cognizance of all causes in which the

citizens of other countries are concerned.”).

- 18.

on the proper construction of the Civil Aeronautics Act. In

that statute, Congress explicitly excepted from judicial

review “any order in respect of any foreign air carrier subject

to the approval of the President as provided in section 801 of

this Act.” Waterman, 333 U.S. at 106 (emphasis added).

The statute also required presidential approval of orders

relating to domestic air carriers engaged in “overseas or

foreign air transportation,” id., but said nothing specific

about judicial review of such orders. The Court found that

Congress nevertheless intended to preclude judicial review

for both types of orders primarily because the administrative

process under the statute included no mechanism for the

President to explain the reasons for his actions regarding

either category of order. Jd. at 110-11. It was in this context

that the Court observed the practical, not necessarily

constitutional, limits that underlay Congress’ decision to

preclude review.

FOIA could not present a more distinct case. First, there

is absolutely no ambiguity in FOIA’s judicial review

provisions. Second, the Waterman Court worried that the

judiciary would be asked to act on orders subject to

presidential approval “without the relevant information,” i.e.,

without any expression of the President’s rationale. Jd. at

111. FOIA allows for — and indeed requires — full

communication between the executive and the court

considering an Exemption | claim. Third, under the statute

at issue in Waterman courts could not “sit in camera in order

to be taken into executive confidences.” Jd. The 1974

Amendments to FOIA make such proceedings possible.

Thus, the broad dicta in Waterman does not suggest that any

problem of constitutional dimensions is present in this case.

The Court’s approach to an analogous situation involving

“foreign affairs” and “national security” claims is instructive.

In considering executive claims of an evidentiary privilege

for “national security” or “diplomatic” materials, the Court

has refused to give the executive carte blanche. Rather, the

-19-

court has affirmed the competence and responsibility of the

judiciary to scrutinize claims of a threatened national security

harm — and if necessary to review the “secret” documents. In

so holding, the Court has stressed that this review should be

an independent judicial function. In the leading case

regarding the state secrets privilege, this Court stressed that

“(t]he [district] court itself must determine whether the

circumstances are appropriate for the claim of privilege,”

“[{jJudicial control over the evidence in a case cannot be

abdicated to the caprice of executive officers” even when that

evidence relates to foreign affairs. United States v. Reynolds,

345 U.S. 1, 8-10 (1993) (emphasis added).

Nor has the Court accepted the government’s contention

that courts are somehow constitutionally or inherently

incapable of grasping the executive’s “foreign affairs” and

“national security” positions. See Pet. Br. 24-25, 27. In

United States v. United States District Court (Keith), 407

U.S. 297 (1972), the Court confronted the issue of whether

the government was required to obtain a warrant to perform

so-called “national security” surveillance. In urging that a

warrant was not required, the government, as in this case,

“ynsist{ed] that courts ‘as a practical matter would have

neither the knowledge nor the techniques necessary . . . to

protect national security." These security problems, the

Government contend[ed], involve ‘a large number of

complex and subtle factors’ beyond the competence of courts

to evaluate.” Jd. at 319 (quoting Reply Brief for the United

States). The Court, however, pointedly rejected “the

Government’s argument that internal security matters are too

subtle and complex for judicial evaluation.” Jd. at 320. As

Justice Powell explained, “Courts regularly deal with the

most difficult issues of our society. There is no reason to

believe that federal judges will be insensitive to or

uncomprehending of the issues involved in [these] cases.”

Id. In fact, the Court has recognized that review of the

executive’s claims by “a ‘neutral and detached magistrate’”

.

is particularly important in contexts implicating national

security. Jd. at 316 (citation omitted).

Congress evidently shares both Justice Powell’s

confidence in the competence of the courts to evaluate

“foreign affairs” and “national security” evidence under

FOIA and his recognition of the importance of neutral

judicial review of the executive’s decisions in these fields.

Supporters of the 1974 FOIA Amendments “stressed the

need for an objective, independent judicial determination,

and insisted that judges could be trusted to approach the

national security determinations with common sense, and

without jeopardy to national security.” Ray, 587 F.2d at

1194. Senator Chiles agreed, emphasizing not only the

courts’ competence, but their independence:

We say that four-star generals or admirals will be

reasonable but a Federal district judge is going to be

unreasonable. I cannot buy that argument, especially

when I see that general or that admiral has

participated in covering up a mistake, and the Federal

judge sits there without a bias one way or another. |

want him to be able to decide without blinders or

having to go in one direction.

120 Cong. Rec. 17028 (1974) (Sen. Chiles), cited in Ray, 587

F.2d at 1194.

These authorities illustrate that, far from challenging the

Constitution’s separation of powers, the Court’s insistence on

judicial competence to decide cases even if they touch on

foreign affairs or national security reflects and upholds a key

aspect of that system — the independence of courts from

domination by the executive. See 10 Works of Thomas

Jefferson 404, n. (P. Ford ed., 1905) (letter of June 20, 1807,

from President Thomas Jefferson to United States Attorney

George Hay) (“The leading principle of our Constitution is

the independence of the Legislature, executive and judiciary

of each other, and none are more jealous of this than the

ne

judiciary.”), quoted in Clinton v. Jones, 520 U.S. 681, 716

(1997). Reading FOIA and the Constitution to require the

courts to afford “utmost deference” to whatever “foreign

affairs” justification the executive branch offers constitutes

an assault on that independence in its most basic form, one

that the court below properly resisted by seeking more from

the executive than a “one-size-fits-all” justification for its

action in this case. In requiring the State Department to

identify and describe damage to the national security as

defined in the Clinton Order, the court of appeals was

properly cognizant of the executive branch’s foreign policy

assessments. But the court could not, consistent with its own

constitutional responsibilities, allow the government to turn

FOIA’s judicial review process into “a meaningless judicial

imprimatur” for the government’s foreign affairs decisions.

A. Michael’s Piano, Inc., 18 F.3d at 141.

IV. MEANINGFUL JUDICIAL REVIEW DOES

NOT THREATEN UNITED STATES FOREIGN

POLICY AND IS ESSENTIAL TO PROTECT

OTHER VALUES.

The government argues that the judiciary cannot be

trusted to review agency classifications de novo because

foreign governments believe that government secrecy in the

United States is ironclad, and the mere possibility of a court

disclosing information deemed secret by the executive will

seriously undermine foreign policy. This argument strains

credibility on two levels. Our society places a premium on

government openness, so _ foreign governments

communicating with the Umted States cannot reasonably

expect total secrecy. Moreover, government openness

facilitated by meaningful judicial review both checks

executive abuses of power and fosters an informed citizenry

at home and has been an important U.S. foreign policy

objective in its own right.

2.

The notion that foreign governments realistically expect

the executive branch to provide absolute secrecy for all inter-

governmental communications is untenable. Since Congress

amended FOIA in 1974, foreign governments have been on

notice that United States courts might order the release of

such information. Moreover, the Clinton Order makes clear

that no presumption of secrecy attaches to foreign

government communications, even when confidentiality is

expected. Compare Clinton Order, §§ 1.2(a)(4), 1.5(b), with

Exec. Order 12,356, 3 C.F.R. § 1.3(a)(3) (1983).

Foreign governments are also surely aware of the

frequent leaks, both authorized and unauthorized, of foreign

affairs information by executive branch officials. See

Secrecy, Report of the Commission on Protecting and

Reducing Government Secrecy, S. Rep. No. 103-105-2 at A-

3. (1977) (“Classified documents are routinely passed out to

support an administration; weaken an administration,

advance a policy; undermine a policy.”). Recent newspaper

articles, for example, discuss in detail] communications

between President Clinton and Prime Méinister Blair

concerning the targeting of specific sites and military

campaigns in Kosovo.'? When national newspapers already

have access to such high-level communications regarding

military secrets, it is entirely unrealistic to suggest that

" See, e.g, Dana Priest, Bombing by Committee: France Balked

at NATO Targets, Wash. Post, Sept. 20, 1999 at Al (detailing the

contents of a target selection document from the air campaign in

Kosovo circulated to President Clinton, Prime Minister Tony Blair

of Great Britain, and President Jacques Chirac of France; the

article also reports the contents of long conversations between the

three leaders over target selection); Dana Priest, The Battle Inside

H ers: Tension Grew with Divide over Strategy, Wash.

Post, . 21, 1999 at Al (analyzing the conversations conducted

over top-secret video-conference by the military leaders in the

Kosovo war, including General Wesley Clark, chief of NATO

forces).

2.

foreign governments have any expectation of confidentiality

that will be seriously undermined by the mere possibility of

judicially-ordered disclosures of government-to-government

In support of its claim that dire consequences will result

from court-ordered disclosure, the government relies

principally on a 1971 statement by then-Secretary of State

William Rogers regarding comments by certain foreign

diplomats with respect to publication of the Pentagon Papers

at issue in New York Times v. United States, 403 U.S. 713

(1971). The example of the Pentagon Papers, however,

demonstrates how unrealistic are the government’s claims.

Secretary Rogers’ concerns were not borne out. The

Solicitor General who argued that very case, with the benefit

of nearly twenty years’ hindsight, concluded those concerns

were unjustified: “I have never seen any trace of a threat to

the national security from the publication. I have never even

seen it suggested that there was such an actual threat.” Erwin

N. Gnswold, Secrets Not Worth Keeping, Wash. Post,

Feb. 15, 1989, at A25.

The government’s brief pays scant attention to the values

furthered by promoting freedom of information.”’ Indeed,

the government’s suggestion that under the Clinton Order

disclosure of government-to-government communications

should generally be limited to “routine scheduling

information or congratulatory/condolence messages from

certain governments,” Pet. Br. 34, stands in stark contrast to

the government’s recognition before other audiences that

*® The Senate Report on the 1974 Amendments stated: “Since the

First Amendment protects not only the right of citizens to speak

and publish, but also the receive information, freedom of

information legislation can be seen as an affirmative

effort to give meaningful content to constitutional freedom of

expression.” Source Book at 154.

3.

FOIA implements a basic human night. In a 1994 report to

the United Nations on the state of human nghts and freedoms

in this country required under the International Covenant on

Civil and Political Rights, the U.S. Department of State

reported that “Freedom of speech [Jencompasses certain

rights to seek and receive information .... This

constitutional right has been supplemented by a number of

laws promoting access to government, such as the Freedom

of Information Act.””"

The United States has long recognized the value of

openness in government. As James Madison famously

pronounced, “A popular Government, without popular

information, or the means of acquiring it, is but a Prologue to

a Farce or a Tragedy; or perhaps both. ... And a people who

mean to be their own Governors must arm themselves with

the power which knowledge gives.” The Writings of James

Madison 103 (G. Hunt ed, 1910). Although

accommodations to the concerns of foreign countries are no

doubt appropriate in many instances — and the executive will

have the opportunity to explain the reasons for such

accommodation in any future FOIA case — there is no legal

justification for presuming that United States information

policy must automatically fall to the level of any country

with which it deals.

*! Civil and Political Rights in the United States, Initial Report of

the United States of America to the United Nations Human Rights

Committee under the International Covenant on Civil and Political

Rights, July 1994, at 157.

23

CONCLUSION

The judgment of the court of appeals should be affirmed.

Kate Martin

CENTER FOR NATIONAL

SECURITY STUDIES

National Security Archive

2130 H Street, N.W., Suite 701

Washington D.C. 20037

(202) 944-7060

Louis M. Bograd

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION

1875 Connecticut Avenue, N.W.

Washington, D.C. 20009

(202) 234-1817

November 19, 1999

Mark H. Lynch

Counsel of Record

Jay T. Smith

Elizabeth A. Snodgrass

Gregory M. Williams

Gerald J. Russello

COVINGTON & BURLING

1201 Pennsylvania Ave., N.W.

P.O. Box 7566

Washington, D.C. 20044-7566

(202) 662-5544

Steven R. Shapiro

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION

125 Broad Street

New York, New York 10004

(212) 549-2500

Counsel for Amici Curiae

oh.