Reform of the Foreign Intelligence Surveillance Courts: Disclosure of FISA Opinions

Congressional research reportFeb 24, 2014

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Reform of the Foreign Intelligence

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R43404

Reform of the Foreign Intelligence Surveillance Courts: Disclosure of FISA Opinions

Summary

In response to the disclosure of various National Security Agency (NSA) surveillance and data

collection programs, a number of legislative changes to the government’s intelligence operations

authority have been suggested. Under the Foreign Intelligence Surveillance Act of 1978 (FISA),

the Foreign Intelligence Surveillance Court (FISC) reviews government applications to conduct

surveillance and engage in data collection for foreign intelligence purposes, and the FISA Court

of Review reviews rulings of the FISC. Most FISA opinions are classified by the executive

branch. Some have raised concerns that this practice permits the government to rely upon “secret

law” to justify its activities, and have proposed requiring the public release of legal opinions and

orders issued by the FISC and the FISA Court of Review. However, others might regard these

proposals as raising separation of powers questions, including the scope of the executive branch’s

control over national security information.

FISA opinions and orders, most of which seem to contain at least some sensitive facts pertaining

to national security, involve the legal analysis of sensitive national security information.

Requiring the executive branch to release them implicates Article II of the Constitution because it

compels the President to disclose potentially sensitive documents, and could override the

President’s classification decisions. After briefly reviewing the FISC’s current procedures, this

report will examine the Article II implications of requiring the executive branch to disclose FISA

opinions.

The Constitution assigns responsibility for the national defense to both Congress and the

President. However, the extent to which Congress may regulate the President’s discretion over

national security matters is a contentious issue. Some argue that the President possesses a sphere

of authority that exists independent of any congressional delegation of authority. While courts

have not precisely determined the scope of any such power, it appears that control over access to

national security information is largely shared between the legislative and executive branches,

rather than belonging exclusively to one branch. For example, courts have indicated that neither

one possesses absolute power over classified information. In addition, an examination of

historical practice reveals that Congress and the executive branch share power in this area.

Congress requires consistent disclosure of sensitive national security information to the relevant

intelligence and defense committees. Congress has also regulated control over access to national

security information, passing legislation such as the Classified Information Procedures Act

(CIPA), FISA, and the Freedom of Information Act (FOIA). Pursuant to these statutes, courts

have required the executive branch to disclose information to the public and the judiciary. In fact,

no statute regulating classified information has been held by courts to improperly intrude upon

the President’s power as Commander in Chief.

Nevertheless, Congress’s power to compel the release of information held by the executive

branch might not be absolute. The Supreme Court has observed that the President enjoys some

power as Commander in Chief to control access to national security information. In addition,

courts have crafted common law privileges that protect the executive branch from revealing

certain military secrets. Consequently, there may be a limited sphere of information that courts

will protect from public disclosure.

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Reform of the Foreign Intelligence Surveillance Courts: Disclosure of FISA Opinions

Contents

Introduction...................................................................................................................................... 1

Current FISC Procedures ................................................................................................................. 2

Potential Article II Separation of Powers Issues .............................................................................. 4

Implicating Article II ................................................................................................................. 5

Shared Power over National Security........................................................................................ 5

Potential Conflict Between Congress and the President............................................................ 7

Control over Access to National Security Information.............................................................. 8

Court Rulings ...................................................................................................................... 9

Statutorily Required Disclosure to Courts......................................................................... 11

Statutorily Mandated Disclosure to the Public .................................................................. 12

Common Law and Constitutional Limits to Disclosure .................................................... 14

Conclusion ..................................................................................................................................... 15

Contacts

Author Contact Information........................................................................................................... 15

Congressional Research Service

Reform of the Foreign Intelligence Surveillance Courts: Disclosure of FISA Opinions

Introduction

In response to the disclosure of various National Security Agency (NSA) surveillance and data

collection programs,1 a number of legislative changes to the government’s intelligence operations

authority have been suggested. Many of these proposals include amendments to the practices and

procedures of the Foreign Intelligence Surveillance Court (FISC), and the FISA Court of Review,

which reviews rulings of the FISC. Currently, the government’s applications for surveillance

orders to the FISC are classified, as are most FISA opinions themselves.2 While traditional federal

courts also review classified information in camera,3 their final opinions are rarely kept

confidential.4 FISA opinions, in contrast, are not released publicly except in special

circumstances.5 According to the FISC, traditional “courts operate primarily in public, with

secrecy the exception; the FISC operates primarily in secret, with public access the exception.”6

On the other hand, at least according to the public record, the FISA Court of Review has sat only

twice; and both times the court released its opinion with sensitive information redacted.7

A number of proposals seek to increase government transparency by requiring public disclosure

of FISA opinions. At least one group has proposed that all FISA decisions should be published in

their entirety;8 other proposals would allow the government to conduct a declassification review

of the material first, substituting a summary of material when appropriate.9 These proposals might

be understood to raise separation of powers issues, namely, the scope of the executive branch’s

control over national security information. This report will first address current FISC procedures

regarding disclosure, and will continue by analyzing the legal implications of mandating

executive branch release of FISA opinions. This analysis will include an examination of judicial

doctrine and statutory practice regarding control of national security information, concluding that

neither branch enjoys exclusive power over the matter; rather, authority is shared between

See CRS Report R43134, NSA Surveillance Leaks: Background and Issues for Congress, by (name redacted) and

(name redacted).

In re Motion for Release of Court Records, 526 F. Supp. 2d 484, 487 (FISA Ct. 2007).

See e.g., Cox v. Levi, 592 F.2d 460, 463 (8th Cir. 1979); Halperin v. Dep’t of State, 565 F.2d 699, 707 (D.C. Cir.

1977): Phillippi v. Cent. Intelligence Agency, 546 F.2d 1009, 1012-13 (D.C. Cir. 1976); New York Times v. United

States Dep’t of Justice, 872 F. Supp. 2d 309, 318 (S.D.N.Y. 2012); Silets v. Fed. Bureau of Investigation, 591 F. Supp.

490, 496 (N.D. Ill. 1984).

See United States v. Amodeo, 71 F.3d 1044, 1048–49 (2d Cir. 1995); Leucadia, Inc. v. Applied Extrusion

Technologies, Inc., 998 F.2d 157, 161 (3d Cir. 1993); In re Continental Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir.

1984); Lowenschuss v. W. Pub. Co., 542 F.2d 180, 185 (3d Cir. 1976).

In re Motion for Release of Court Records, 526 F. Supp. 2d 484, 487-90 (FISA Ct. 2007); United States Foreign

Intelligence Surveillance Court, Rules of Procedure at 15 (2010), available at http://www.uscourts.gov/uscourts/rules/

FISC2010.pdf (hereinafter FISC Rules of Procedure).

In re Motion for Release of Court Records, 526 F. Supp. 2d 484, 488 (FISA Ct. 2007).

PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD, REPORT ON THE TELEPHONE RECORDS PROGRAM CONDUCTED UNDER

SECTION 215 OF THE USA PATRIOT ACT AND ON THE OPERATIONS OF THE FOREIGN INTELLIGENCE SURVEILLANCE

COURT 14 (January 23, 2014). See In re Sealed Case, 310 F.3d 717, 190 (FISA Ct. Rev. 2002); In re Directives

Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 551 F.3d 1004 (FISA Ct. Rev. 2008).

E.g., Electronic Privacy Information Center, Letter from the Electronic Privacy Information Center to Congress (June

7, 2013), available at http://epic.org/FISC-NSA-domestic-surveillance.pdf.

See e.g., Ending Secret Law Act, H.R. 2475, 113th Cong. (2013); Ending Secret Law Act, S. 1130, 113th Cong.

(2013); FISA Court in the Sunshine Act of 2013, H.R. 2440, 113th Cong. (2013); FISA Court Reform Act of 2013, S.

1467, 113th Cong. (2013).

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Reform of the Foreign Intelligence Surveillance Courts: Disclosure of FISA Opinions

Congress and the executive branch.10 Requiring the public disclosure of FISA opinions concerns

many policy questions involving national security; this report, however, is limited to the legal

implications of such a requirement.

Current FISC Procedures

Under the Foreign Intelligence Surveillance Act (FISA), the FISC reviews government

applications to, inter alia, conduct surveillance and engage in data collection for foreign

intelligence purposes.11 If an application is denied, the government may request review from the

FISA Court of Review.12 The government is usually the only party, as FISA provides that most

FISC proceedings take place ex parte,13 and that FISC judges enter ex parte orders.14 Under

FISA, most submissions to the FISC are made under seal,15 and appeals from FISC rulings are

also sent under seal to the FISA Court of Review or the Supreme Court.16

Pursuant to 50 U.S.C. Section 1803(c), records of the FISC and the FISA Court of Review’s

proceedings “shall be maintained under security measures established by the Chief Justice in

consultation with the Attorney General and the Director of National Intelligence.”17 Under that

authority, Chief Justice Warren Burger established these measures in 1979.18 In addition, 50

U.S.C. Section 1803(g) permits the FISA courts to individually adopt whatever security

procedures “are reasonably necessary to administer their responsibilities.”19 While the FISA

Court of Review has not publicly released any more specific security procedures, the FISC’s

particular procedures took effect November 1, 2010, and specify that the court comply with

various executive branch regulations governing classified material, in particular, Executive Order

13526—“Classified National Security Information.”20 In sum, according to the FISC, “the

Proposals to mandate disclosure of FISA opinions might also implicate Article III concerns. See Miller v. French,

530 U.S. 327 (2000); Plaut v. Spendthrift Farm, 514 U.S. 211, 219 (1995); United States v. Sioux Nation of Indians,

448 U.S. 371 (1980); United States v. Klein, 80 U.S. (13 Wall.) 128, 146 (1872). The issue, however, is beyond the

scope of this report. This report also does not address the scope of the operational authority bestowed on the President

via the Commander-in-Chief Clause. See CRS Report R40888, Presidential Authority to Conduct Warrantless

Electronic Surveillance to Gather Foreign Intelligence Information, by (name redacted) and (name redacted).

Finally, the FISC itself has raised practical concerns with releasing the court’s opinions; this report does not address

these pragmatic considerations either. See Honorable John D. Bates, Comments of the Judiciary on Proposals

Regarding the Foreign Intelligence Surveillance Act 14 (January 13, 2014).

Codified as amended at 50 U.S.C. §§1801-1885c.

50 U.S.C. §§1803(b), 1822(d).

In re Motion for Release of Court Records, 526 F. Supp. 2d 484, 487 (FISA Ct. 2007).

50 U.S.C. §§1805(a), 1824(a), 1842(d)(1), 1861(c)(1).

See 50 U.S.C. §§1802(a)(3), 1822(a)(3), 1861(f)(5), 1881a(g)(1)(A), 1881a(k)(2).

See 50 U.S.C §§1803(a)(1), 1803(b), 1822(a)(3), 1822(c), 1822(d), 1861(f)(3), 1881a(h)(6)(B), 1881a(i)(4)(D).

See 50 U.S.C. §1803(c).

Security Procedures Established Pursuant to P.L. 95-511, 92 Stat. 1783, by the Chief Justice of the United States for

the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review (May 18, 1979),

reprinted in H.R. Rep. No. 96-558, at 7-10 (1979). The procedures establish a position for a court-appointed security

officer, direct the court clerk to work with the security officer to mark all records with the relevant security

classifications, and mandate that all court records must remain on the premises unless removal is permitted under FISA.

Id. at 9.

50 U.S.C. §1803(g).

FISC Rules of Procedure, supra note 5, at 1. In addition, the clerk of the FISC may not release any court records

without an explicit court order to do so, except for providing copies of the opinion to parties of the litigation at issue.

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Reform of the Foreign Intelligence Surveillance Courts: Disclosure of FISA Opinions

collective effect of these provisions is that applications, orders, and other records ... whether in

the possession of the FISC, the Court of Review, [or] the Supreme Court ... shall, as a rule, be

maintained in a secure and nonpublic fashion.”21

While the FISC usually sits ex parte, at least two exceptions apply. Recipients of production

orders under Section 215 of the USA PATRIOT Act and directives under Section 702 of FISA

may petition the court.22 In the event of a contested hearing, FISA permits ex parte and in camera

review of classified information upon motion by the government.23

Under the FISC’s procedures, disclosure of the court’s opinions is permitted only in a limited

number of situations, all of which require compliance with Executive Order 13526. First, a judge

who wrote an opinion may sua sponte or by motion of a party publish the opinion.24 The FISC

has discretion in this situation to direct the executive branch to redact the opinion for classified

information.25 Recently, at least one FISC judge has released an opinion in this manner,

“[b]ecause of the public interest” in the bulk metadata collection program.26 Second, the presiding

judge may provide copies of court records to Congress on his own volition.27

Finally, the FISC’s rules also provide that the executive branch may provide copies of court

records to Congress without prior notification to the court. The executive branch must, however,

notify the court “contemporaneously” when it does so.28 The executive branch recently argued

that this provision prevented it from complying with Freedom of Information Act (FOIA)29

requests—without FISC approval—for FISC records in the government’s possession.30 The FISC,

(...continued)

Id. at 15.

In re Motion for Release of Court Records, 526 F. Supp. 2d 484, 490 (FISA Ct. 2007). FISC orders and opinions are

not automatically placed under seal, but the government may request that any records be placed under seal. In re

Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from

[Redacted], No. 13-109, at 3 (FISA Ct. August 29, 2013), available at http://www.uscourts.gov/uscourts/courts/fisc/

br13-09-primary-order.pdf.

For example, a telecommunications provider that receives an order under Section 215 of the USA PATRIOT Act to

produce telephone records could challenge the legality of that order by petitioning the FISC. 50 U.S.C.

§1861(f)(2)(a)(i) [§215 of the USA PATRIOT Act]. Likewise, an electronic communication service provider that

receives a directive to produce information under Section 702 of FISA may petition to “modify or set aside” the

directive. 50 USC §1881a(h)(4)(A) [§702 of FISA]. The FISC judges who reside in the District of Columbia, or other

judges designated by the Chief Judge of the FISC, comprise a pool which reviews petitions. All petitions challenging

compliance with such orders must be filed under seal. See 50 U.S.C. §1861(f)(C)(3)[§215 of the USA PATRIOT Act];

50 USC §1881a(k)(2)[§702 of FISA]. The FISA Court of Review has also accepted amicus briefs from the American

Civil Liberties Union and the National Association of Criminal Defense Lawyers. In re Sealed Case, 310 F.3d 717, 190

(FISA Ct. Rev. 2002).

See 50 U.S.C. §§1803(e)(2), 1805b(j)-(k).

Id. at 16. See, e.g., In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of

Tangible Things from [Redacted], No. 13-109, at 29 (FISA Ct. August 29th, 2013); In Re Orders of this Court

Interpreting Section 215 of the PATRIOT Act, No. Misc. 13-02 (FISA Ct. September 13th, 2013).

FISC Rules of Procedure, supra note 5, at 15.

See, e.g., In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible

Things from [Redacted], No. 13-109, at 29 (FISA Ct. August 29th, 2013) available at http://www.uscourts.gov/

uscourts/courts/fisc/br13-09-primary-order.pdf.

FISC Rules of Procedure, supra note 5, at 15.

Id.

5 U.S.C. §552.

In re Motion for Consent to Disclosure of Court Records or, In the Alternative, A Determination of the Effect of the

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however, rejected this proposition, explaining that the provision was intended to “stop the

government’s practice of filing what the Court viewed as unnecessary motions for unsealing

before fulfilling its statutory obligations.”31 The court explained that FISA regulated the

disclosure of opinions “in the possession of the FISC,” but did not regulate the disclosure of

opinions already in the possession of the executive branch.32

Therefore, opinions and orders in the possession of the executive branch may be released to the

public without seeking the FISC’s permission. However, most filings made to the FISC are

classified as Secret or Top Secret by the executive branch before being sent to the court,33 and the

FISC’s orders and opinions in the possession of the executive branch are similarly classified.34

While most classified information is subject to automatic review at 25 years, “FISA files” are not

automatically reviewed until after 50 years.35 The executive branch can, however, choose to

declassify portions of opinions, or entire opinions and release them to the public. It has done so in

certain instances since the disclosure of the NSA data collection programs.36

Potential Article II Separation of Powers Issues

Legislation that requires the executive branch to publicly disclose FISA opinions might raise

separation of powers questions. Both Congress and the executive branch claim some power in

this area.37 The central issue is the extent to which Congress may regulate control over access to

national security information, including mandating that the executive branch disclose specific

materials—a question not definitively resolved by the courts.38

(...continued)

Court’s Rules on Statutory Access Rights, No. 13-01 (FISA Ct. June 12, 2013), available at http://www.uscourts.gov/

uscourts/courts/fisc/misc-13-01-opinion-order.pdf.

Id.

Id. at 6.

AUDIT OF THE DEPARTMENT OF JUSTICE’S IMPLEMENTATION OF AND COMPLIANCE WITH CERTAIN CLASSIFICATION

REQUIREMENTS, U.S. DEPARTMENT OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL 23 (2013) available at

http://www.justice.gov/oig/reports/2013/a1340.pdf; RICHARD A. CLARKE, ET AL., LIBERTY AND SECURITY IN A

CHANGING WORLD, REPORT AND RECOMMENDATIONS OF THE PRESIDENT’S REVIEW GROUP ON INTELLIGENCE AND

COMMUNICATIONS TECHNOLOGIES 206 (2013) (hereinafter REPORT OF THE PRESIDENT’S REVIEW GROUP].

REPORT OF THE PRESIDENT’S REVIEW GROUP, supra note 33, at 206.

Id.

See, e.g., Press Release, Office of the Director of National Intelligence, DNI Clapper Declassifies Additional

Intelligence Community Documents Regarding Collection Under Section 501 of the Foreign Intelligence Surveillance

Act (November 18, 2013); Press Release, Office of the Director of National Intelligence, DNI Declassifies Intelligence

Community Documents Regarding Collection Under Section 702 of the Foreign Intelligence Surveillance Act (FISA)

(August 21, 2013).

See, e.g., United States v. AT&T, 567 F.2d 121, 127 (D.C. Cir. 1977).

See Nixon v. General Services Administration, 433 U.S. 425, 429 (1977) (recognizing congressional power to

regulate information held by the executive branch); cf. Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988) (noting some

executive branch authority to protect national security information).

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Implicating Article II

A preliminary question concerning the public disclosure of FISA opinions is why releasing court

opinions—a product of an Article III entity—implicates the power of the President under Article

II. Legislation that compels the executive branch to release FISA opinions in its possession

directs the President to take specific action with respect to documents he may intend to keep

secret, and thus implicates his Article II powers. For example, in the FOIA context, legislation

compelling the release of agency records includes judicial opinions in the possession of the

executive branch. In United States Department of Justice v. Tax Analysts, the Supreme Court

ruled that the location in which specific documents originated was irrelevant in determining

whether materials qualified as agency records. Instead, two requirements applied.39 First, the

agency must “create or obtain” the materials; second, the agency must have control of the

materials when the FOIA request is made.40 The government argued that it did not control the

opinions because district courts could always modify them. However, the Supreme Court rejected

this assertion, explaining that the proper inquiry was “on an agency’s possession of the requested

materials, not on its power to alter the content.”41 The Court thus held that district court decisions

in the possession of the executive branch qualified as agency records.42

Similarly, FISA opinions are retained by the executive branch as a party to the litigation, and

remain in the control of the executive branch. Legislation directing the executive branch to

release FISA orders may be analogous to FOIA’s applicability to court opinions in the possession

of the executive branch. Once the executive branch receives a FISA opinion, that opinion

becomes an agency record. Most are then classified as either Top Secret or Secret.43 A number of

FOIA cases have been filed seeking FISA opinions from the executive branch.44

Shared Power over National Security

The Constitution assigns responsibility for the national defense to both Congress and the

President. Article II provides that the President is Commander in Chief of the armed forces and

instructs him to take care that the laws are faithfully executed.45 The Supreme Court has been

somewhat deferential to the executive branch in matters of national security, noting that the

power vested in the President in Article II bestows a “vast share of responsibility for the conduct

of foreign relations,”46 including “a degree of independent authority to act.”47 The Supreme Court

492 U.S. 136 (1989)

Id. at 145 (quoting Kissinger v. Reporters Committee for Freedom of Press, 445 U.S. 136, 182 (1980)).

Id. at 147.

Id. at 157.

REPORT OF THE PRESIDENT’S REVIEW GROUP, supra note 33, at 206.

See, e.g., Electronic Frontier Foundation v. Dep’t of Justice, Status Report, Case. No. 4:11-cv-05221-YGR (D.

N.Cal. 2013) available at https://www.eff.org/document/justice-department-status-report-re-releasing-secret-patriotact-interpretation-documents; ACLU v. FBI, No. 11 Civ. 7562 (S.D.N.Y. October 26, 2011).

U.S. CONST. art. II §2, cl. 1; art. II, §3.

Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579, 610-11 (1952) (Frankfurther, J. concurring)).

Id. at 414; see Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp, 333 U.S. 103, 109 (1948). In United

States v. Curtiss-Wright Corp., for example, the Court, expressing a very broad view of executive power, noted that the

proposition that the government is limited to acting within constitutionally enumerated powers “is categorically true

only in respect of our internal affairs.” 299 U.S. 304, 315-16 (1936).

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Reform of the Foreign Intelligence Surveillance Courts: Disclosure of FISA Opinions

has indicated that the “grant of [the] war power includes all that is necessary and proper for

carrying these powers into execution,”48 and has noted that the Commander-in-Chief Clause gives

the President the power to “direct the movements of the naval and military forces at his

command, and to employ them in the manner he may deem most effectual to harass and conquer

and subdue the enemy.”49 At the same time, Article I grants Congress considerable power over

national security and foreign affairs.50 Indeed, the Supreme Court has recognized that—“out of

seventeen specific paragraphs of congressional power [in the Constitution], eight of them are

devoted in whole or in part to specification of powers connected with warfare.”51 Additionally,

the Court has noted that the President “may not disregard limitations that Congress has, in the

proper exercise of its own war powers, placed on his powers.”52 Likewise, the Supreme Court

noted in Hamdi v. Rumsfeld, that even during times of conflict, the Constitution “most assuredly

envisions a role for all three branches when the rights of individuals are at stake.”53

Leaving aside the disclosure of sensitive national security information or information subject to a

valid claim of privilege, it is well established that Congress may require an agency to release its

documents. Congress enjoys the power to create and regulate federal agencies. In exercising its

powers to legislate under Article I, sec. 8 and other provisions of the Constitution, Congress may

provide for the execution of those laws by officers appointed pursuant to the Appointments

Clause.54 The Necessary and Proper Clause allows Congress to create and locate offices, establish

their powers, duties, and functions, determine the qualifications of officeholders, and promulgate

standards for the conduct of their offices.55 The Supreme Court has recognized broad

congressional discretion to structure administrative agencies.56 Congress can thus create federal

agencies, create officers to oversee them, and can impose duties on those officers.57 Therefore,

Congress can generally require federal agencies to disclose their records.58 The Supreme Court

has explicitly recognized Congress’s power to require the “mandatory disclosure of documents in

the possession of the Executive Branch.”59

Johnson v. Eisentrager, 339 U.S. 763, 788 (1950).

Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850).

See, e.g., “[t]o declare war,” U.S. CONST. art. I, §8, cl. 11; “[t]o raise and support armies,” art. I, §8, cl. 12; “[t]o Lay

and collect Taxes [to] provide for the common Defence,” art. I, , §8, cl. 1; “[t]o regulate Commerce with foreign

nations,” art. I, §8, cl. 3; “[t]o make rules for the government and regulation of the land and naval forces,” art. I, §8, cl.

14; “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all

other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer

thereof.” art. I, §8, cl. 18.

Johnson v. Eisentrager, 339 U.S. 763, 788 (1950).

Hamdan v. Rumsfeld, 548 U.S. 557, 592 (2006).

Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion).

See U.S. Const. article II, sec. 2 cl. 2.

Myers v. United States, 272 U.S. 52, 129 (1926) (“To Congress under its legislative power is given the establishment

of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they

are to be appointed, and their compensation—all except as otherwise provided by the Constitution”); see Mistretta v.

United States, 488 U.S. 361 (1989); Morrison v. Olson, 487 U.S. 654 (1988); Buckley v. Valeo, 424 U.S. 1, 134-35

(1976).

See Morrison v. Olson, 487 U.S. 654 (1988); Commodity Futures Trading Commission v. Schor, 473 U.S. 833

(1986); Lewis v. United States, 244 U.S. 1345 (1917); Crenshaw v. United States, 134 U.S. 99, 105-06 (1890).

Administrative Procedure Act of 1946, Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended at 5 U.S.C.

§§551 et seq.).

5 U.S.C. §552 (2006).

Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 445 (1977). The Court pointed to the Freedom of Information Act, 5

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However, requiring the disclosure of sensitive national security information might raise Article II

concerns. The executive branch has argued that the Commander-in-Chief Clause bestows the

President with independent power to control access to national security information.60 As such,

according to this line of reasoning, Congress’s generally broad ability to require disclosure of

agency documents may be constrained when it implicates national security.

Potential Conflict Between Congress and the President

Perhaps the leading case exploring the tension between congressional and presidential power is

the Steel Seizure Case.61 President Harry Truman, claiming power as Commander in Chief,

ordered the seizure of domestic steel mills that threatened to cease production during the Korean

War.62 The Supreme Court declared this action unconstitutional because Congress had rejected

legislation authorizing such action and other statutory options were available.63 Justice Jackson’s

famous concurrence—which has become the most influential opinion in this context64—outlined

three analytical categories as a framework for examining the scope of presidential power. In the

first, the President acts with express congressional authorization and is accorded broad authority.

In the second, when the President acts where Congress has been silent, historical practice may

sometimes serve as a “gloss” on presidential power.65 Therefore, even if Congress and the

President share power over an area, congressional inaction can “enable, if not invite” presidential

action.66 In the third, the President’s activity is inconsistent with congressional will—here the

President’s power is at its “lowest ebb.”67 In this situation, if Congress regulates according to its

constitutional powers, and the President defies a congressional statute, his action will be

(...continued)

U.S.C. §552, the Privacy Act of 1974, 5 U.S.C. §552(a), the Government in the Sunshine Act, 5 U.S.C. §552b, and the

Federal Records Act, 44 U.S.C. §§2101 et seq.

Letter from Michael Mukasey, Att’y Gen., to Hon. Patrick Leahy, Chairman, S. Comm. on the Judiciary 2–3 (March

31, 2008).

Youngstown Sheet and Tube Co. (Steel Seizure Case) v. Sawyer, 343 U.S. 579, 586 (1952).

Id. at 582.

Id. at 586.

See Medellin v. Texas, 552 U.S. 491, 524 (2008); Dames & Moore v. Regan, 453 U.S. 654, 661 (1981); Michael

Stokes Paulsen, Youngstown Goes to War, 19 Const. Comment. 215, 224 (2002); Harold H. Bruff, Judicial Review &

the President’s Statutory Powers, 68 Va. L. Rev. 1, 11-12 (1982).

Youngstown, 343 U.S. at 610–11 (Frankfurter, J., concurring).

Id. at 637 (Jackson, J., concurring).

Id. at 638 (Jackson, J., concurring). See David J. Barron & Martin S. Lederman, The Commander in Chief at the

Lowest Ebb—Framing the Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689 (2008). Some

commentators have asserted that Article II bestows broad authority on the President to operate independently of

congressional control. E.g., Michael Stokes Paulsen, The Emancipation Proclamation and the Commander in Chief

Power, 40 Ga. L. Rev. 807, 825–29 (2006); John Yoo, Transferring Terrorists, 79 Notre Dame L. Rev. 1183, 1201–02

(2004). According to this view, Congress has limited constitutional authority to regulate the Commander-in-Chief

Clause. However, this view is arguably overdrawn. The Supreme Court has upheld legislation relating to the

President’s Commander-in-Chief power on a number of occasions. See Hamdan v. Rumsfeld, 548 U.S. 557, 567 (2006)

(striking down the Bush Administration’s military commissions because the procedures used were in contravention of

statute); Loving v. United States, 517 U.S. 748 (2006) (recognizing that the Commander-in-Chief Clause provided

inherent authority to establish rules for court-martials, but nonetheless requiring the President to comply with

regulations once Congress acted); Youngstown, 343 U.S at 637 (Jackson, J., concurring) (invalidating presidential

action taken under the guise of the Commander-in-Chief Clause because it contradicted congressional will); Little v.

Barreme, 6 U.S. (2 Cranch) 170, 176–78 (1804) (ruling that the President did not have authority to seize ships in

contravention of statute).

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invalidated unless it is based on constitutional powers that exist independent of congressional

control. For example, in Hamdan v. Rumsfeld, the Supreme Court invalidated the Bush

Administration’s military commissions because they were inconsistent with statutes.68 Absent

congressional action, the President had power to establish them; however, once Congress

legislated, the President had to comply.69 In contrast, in Zivotofsky v. Secretary of State, the D.C.

Circuit ruled that the President did not have to comply with legislation that the court determined

“impermissibly intrudes on the President’s recognition power.”70

Control over Access to National Security Information

While courts have not clearly delineated the scope of presidential power that exists independent

of congressional control, it appears that control over access to national security information is

largely shared between the legislative and executive branches, rather than belonging exclusively

to either one. Supreme Court jurisprudence does not establish absolute power by any branch over

classified information,71 and recognizes room for Congress to impose classification procedures.72

In addition, an examination of historical practice reveals that Congress and the executive branch

share power in this area. Congress, pursuant to its oversight function, requires consistent

disclosure of sensitive national security information to the relevant intelligence and defense

committees. Congress has also regulated control over access to national security information,

passing legislation such as the Classified Information Procedures Act (CIPA),73 FISA,74 and the

Freedom of Information Act (FOIA).75 Pursuant to these statutes, courts have required the

executive branch to disclose information to the public and the judiciary.76 In fact, no statute

regulating classified information has been held by courts to improperly intrude upon the

President’s power as Commander in Chief. As a result, Congress appears to have substantial

power to regulate in this area.

Nevertheless, Congress’s power to compel the release of information held by the executive

branch might have limits. The executive branch has typically exercised discretion to determine

what particular information should be classified; and the Supreme Court has observed in dicta

that the President is Commander in Chief, and his “authority to classify and control access to

information bearing on national security ... flows primarily from this Constitutional investment of

power in the President and exists quite apart from any explicit congressional grant.”77 In addition,

courts have crafted common law privileges that protect the executive branch from revealing

Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

Id. at 567.

Zivotofsky ex rel. Zivotofsky v. Sec’y of State, 725 F.3d 197, 220 (D.C. Cir. 2013).

See Dep’t of Navy v. Egan, 484 U.S. 518 (1988); Nixon v. General Services Administration, 433 U.S. 425 (1977);

Chicago & Southern Air Lines v. Waterman Steamship Corp., 333 U.S. 103 (1948).

EPA v. Mink, 410 U.S. 73, 83 (1973).

18 U.S.C. app. 3 §§1–16 (2006).

50 U.S.C. §§1801–1811.

5 U.S.C. §552.

United States v. Hanna, 661 F.3d 271, 280 (6th Cir. 2011) (CIPA); United States v. Ott, 827 F.2d 473, 476 (9th Cir.

1987) (FISA); Silets v. Fed. Bureau of Investigation, 591 F. Supp. 490, 496 (N.D. Ill. 1984) (FOIA).

Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988).

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certain military secrets.78 Consequently, there may be a limited sphere of information that courts

will protect from public disclosure.

Court Rulings

Judicial analysis addressing the scope of Congress’s power to regulate access to national security

information is somewhat limited. What little there is, however, supports the position that

Congress and the executive branch share power over the matter. For example, the Supreme Court

has upheld statutes regulating information held by the executive branch. In Nixon v. General

Services Administration, the Court upheld a statute that directed an executive branch official to

collect President Nixon’s papers and tape recordings and issue regulations governing public

access to them.79 The Court noted the “congressional power ... [and] abundant statutory precedent

for the regulation and mandatory disclosure of documents in the possession of the Executive

Branch.”80 In addition, while most classification procedures arise from Executive Orders, the

Court has indicated the Congress could “certainly” establish classification procedures—“subject

only to whatever limitations the Executive Privilege may be held to impose on such congressional

ordering.”81

The executive branch has relied on two cases that it views as supporting expansive presidential

control over national security information.82 The first, Department of the Navy v. Egan, is invoked

for its statement in dicta that “the authority to protect [national security] information falls on the

President as head of the Executive Branch and as Commander in Chief.”83 To be sure, the Court

recognized that the executive branch makes decisions about what information to classify, and has

authority to issue security clearances. However, the case does not indicate support for absolute

presidential power in this area. In the case, the Federal Circuit Court of Appeals ruled that the

Merit Systems Protection Board could review the substance—not just the procedures—of the

Department of the Navy’s security clearance determination.84 The Supreme Court reversed,

explaining that it would not assume that one agency had power to review the merits of another’s

security clearance determination without specific congressional direction.85 The Court explained

that “courts traditionally have been reluctant to intrude upon the authority of the Executive in

military and national security affairs,” “unless Congress has specifically provided otherwise.”86 In

a recent case in the Northern District of California, the executive branch relied on Egan to

support its argument that allowing Congress to regulate the state secrets privilege would “raise

E.g., United States v. Reynolds, 345 U.S. 1 (1953); Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir.

2010); El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007).

Nixon v. General Services Administration, 433 U.S. 425, 429 (1977).

Id. The Court cited the Freedom of Information Act, 5 U.S.C. §552, the Privacy Act of 1974, 5 U.S.C. §552(a), the

Government in Sunshine Act, 5 U.S.C. §552b, and the Federal Records Act, 44 U.S.C. §2101, for support.

EPA v. Mink, 410 U.S. 73, 83 (1973).

See e.g., Mukasey Letter, supra note 60, at 2-3; Redacted, Unclassified Brief for United States on Rehearing En Banc

at 16, Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (No. 08-15693) (quoting El-Masri, 479 F.3d

at 303); Brief for the United States in Opposition at 11, Mohamed v. Jeppesen Dataplan, Inc., 131 S. Ct. 2442 (2011)

(No. 10–778) (quoting Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1998)).

Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988).

Id. at 525.

Id.

Id. at 530.

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fundamental constitutional problems which should be avoided.”87 The court, however, rejected

this assertion, remarking that “Egan recognizes that the authority to protect national security

information is neither exclusive nor absolute in the executive branch.”88

Similarly, the executive branch has relied on Chicago & Southern Air Lines v. Waterman

Steamship Corp.89 as recognizing a broad role for the executive branch in this area.90 This case,

while not even concerning the disclosure of information, arguably recognizes shared power over

national security secrets. Congress had provided via statute that the President could deny

applications for foreign air travel.91 The Supreme Court declined to review a challenge to such a

decision because to do so would, in the Court’s opinion, violate congressional intent.92

Consequently, neither Egan nor Southern Air Lines demonstrates that the executive branch has

absolute power in this area.

The U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) has made explicit

that control over access to classified information is shared.93 In 1976, the Subcommittee on

Oversight and Investigations of the House Interstate and Foreign Commerce Committee issued a

subpoena to the American Telephone and Telegraph Company (AT&T) seeking information

concerning warrantless wiretapping by the executive branch.94 Citing the potential danger to

national security if the information were released, the Department of Justice sought an injunction

that would prevent AT&T from complying with the subpoena.95 On appeal to the D.C. Circuit, the

legislative branch argued that its subpoena power “cannot be impeded by the Executive”;96 while

the executive branch argued that because “the President retains ultimate authority to decide what

risks to national security are acceptable,” the judiciary should defer to the executive branch.97 The

court, however, rejected both claims, noting that the congressional subpoena power was indeed

broad, but not “absolute in the context of a conflicting constitutional interest asserted by a

coordinate branch of government.”98 Likewise, the court noted, while the judiciary is sometimes

deferential to the executive branch in the area of national security, Supreme Court jurisprudence

does “not establish judicial deference to executive determinations in the area of national security

when the result of that deference would be to impede Congress in exercising its legislative

powers.”99 The court ultimately declined to rule on the merits of the injunction, and remanded the

case to the district court, urging the parties to continue negotiating.100

In re Nat’l Sec. Agency Telecommunications Records Litig., 564 F. Supp. 2d 1109, 1120 (N.D. Cal. 2008).

Id. at 1121.

333 U.S. 103 (1948).

Mukasey Letter, supra note 60, at 3 (quoting Chi. & S. Air Lines, 333 U.S. at 111).

Southern Air lines, 333 U.S. at 106.

Id. at 106-09.

CRS Report RL30240, Congressional Oversight Manual, by (name redacted) et al., 64-67.

United States v. AT&T, 551 F.2d 384, 385 (D.C. Cir. 1976) (hereinafter AT&T I). The case concerned Congress’s

oversight power.

Id. at 388.

AT&T I, 551 F.2d at 391.

Id. at 392.

Id. at 392 (citing United States v. Nixon, 418 U.S. 683, 706 (1974)).

Id. (citing United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936); Chicago & Southern Air Lines v.

Waterman Steamship Corp., 333 U.S. 103 (1948)).

100

Id. at 395.

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Those negotiations again reached an impasse, and the parties soon returned to the D.C. Circuit.

As before, both sides made broad assertions of authority. The executive branch argued that its

duty to protect national security trumped the congressional subpoena power.101 However, the

court again rejected this assertion, explaining that the two branches shared power over national

security:

the executive would have it that the Constitution confers on the executive absolute discretion

in the area of national security. This does not stand up. While the Constitution assigns to the

President a number of powers relating to national security, including the function of

commander in chief and the power to make treaties and appoint Ambassadors, it confers

upon Congress other powers equally inseparable from the national security, such as the

powers to declare war, raise and support armed forces and, in the case of the Senate, consent

to treaties and the appointment of ambassadors.102

The court also noted that the executive branch’s concern about the improper release of national

security information was “entirely legitimate,”103 but the scope of the executive branch’s authority

in this matter “is unclear when it conflicts with an equally legitimate assertion of authority by

Congress to conduct investigations relevant to its legislative functions.”104

Similarly, Congress argued it had broad powers in this area, claiming that the Speech or Debate

Clause precluded judicial intervention into a congressional subpoena. The court rejected this

assertion as well, noting that the congressional subpoena power is not absolute.105 The court again

declined to rule on the merits, and aimed to construct a compromise that would either encourage

more negotiations or permit the district court to adequately mediate the remaining issues of

contention.106 In sum, AT&T rejects the absolute claims of the executive branch to control over

national security information, as well as Congress’s absolute claim to access.

Statutorily Required Disclosure to Courts

Historical practice also supports the notion of shared power over national security information.

Various statutory regimes regulate access to national security information, including mandating

disclosure to the courts. During criminal trials involving classified information, CIPA provides

procedures for courts to use to determine whether classified information will be discoverable by

the defendant or admissible at trial.107 If the government refuses to comply by releasing

information for in camera review, courts have authority to dismiss prosecutions. The executive

branch has complied with these provisions, submitting classified information to the judicial

branch for in camera review.108 Of course, if the government finds the cost of disclosure to

outweigh the costs of not prosecuting, it can exercise prosecutorial discretion and decline to bring

a case.

101

United States v. AT&T, 567 F.2d 121, 127 n.17 (D.C. Cir. 1977) (hereinafter AT&T II).

Id. at 128.

103

Id.

104

Id.

105

Id. at 130.

106

Id. at 130-32.

107

18 U.S.C. app. III, §4 (2006).

108

See, e.g., United States v. Hanna, 661 F.3d 271, 280 (6th Cir. 2011); Bostan v. Obama, 674 F. Supp. 2d 9, 26

(D.D.C. 2009).

102

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FOIA’s history and operation also supports the notion of shared power between Congress and the

executive branch over national security information. Under FOIA, courts review sensitive

national security information in camera. Prior to 1973, the precise scope of judicial review for

FOIA exemption claims based on classified information was unsettled.109 In Environmental

Protection Agency v. Mink,110 the Supreme Court attempted to clarify this question. In response to

a FOIA claim concerning an underground nuclear explosion, the executive branch claimed the

materials were exempt as properly classified materials. The plaintiffs argued that courts should

closely examine classification orders, but the Court ruled that the FOIA statutory exemption did

not authorize in camera review of classified material.111 Subsequently, Congress amended FOIA

and expressly overruled Mink by permitting in camera review of classified material.112 Since

then, courts have routinely reviewed classified information in camera to ensure that agencies

claim the national security exemption properly.113

Statutorily Mandated Disclosure to the Public

In addition to allowing courts to review classified information in camera, FOIA provides the

public with a statutory right of access to government records outside of the prosecutorial context,

and provides courts with discretion to order the public release of information held by the

executive branch. The executive branch can claim a number of statutory exemptions from

disclosure, including properly classified information.114 When disputes arise, courts reviewing the

executive branch’s privilege claims do so de novo, but only to determine if the relevant

information logically falls within the exemption.115 They may review materials in camera to

ensure that the information is actually sensitive.116 Courts are also to ensure that the government

does not claim exemptions too broadly, by ordering the government to provide all “reasonably

segregable” non-classified information.117 If the information is properly classified by the

executive branch, courts will not order its disclosure. However, if the court is not convinced that

the material is properly classified, it can order the government to disclose the materials.118 Courts

may “enjoin the agency from withholding agency records and ... order the production of any

109

John A. Bourdeau, What Matters Are Exempt from Disclosure Under Freedom of Information Act (5 U.S.C.A.

§552(b)(1)) as “Specifically Authorized Under Criteria Established by an Executive Order to Be Kept Secret in the

Interest of National Defense or Foreign Policy,” 169 A.L.R. Fed. 495, 512 (2001).

110

410 U.S. 73 (1973).

111

Id. at 84.

112

See S. Rep. No. 93-1200, at 9 (1974) (Conf. Rep.).

113

See, e.g., Cox v. Levi, 592 F.2d 460, 463 (8th Cir. 1979); Ray v. Turner, 587 F.2d 1187, 1194 (D.C. Cir. 1978);

Halperin v. Dep’t of State, 565 F.2d 699, 707 (D.C. Cir. 1977); New York Times Co. v. U.S. Dep’t of Justice, 872

F. Supp. 2d 309, 318 (S.D.N.Y. 2012).

114

5 U.S.C. §552 (2006); see generally CRS Report R41406, The Freedom of Information Act and Nondisclosure

Provisions in Other Federal Laws , by (name redacted)

115

See, e.g., Wilner v. Nat’l Security Agency, 592 F.3d 60, 68 (2d Cir. 2009).

116

5 U.S.C. §552(a)(4)(B) (2006).

117

5 U.S.C. §552(b)(1); see, e.g., Ctr. for Int’l Envtl. Law v. Office of U.S. Trade Representative, 505 F. Supp. 2d 150,

158 (D.D.C. 2007).

118

See, e.g., American Civil Liberties Union v. Central Intelligence Agency, 710 F.3d 422 (D.C. Cir. 2013) (rejecting

the CIA’s Glomar response—i.e., declining to confirm or deny the existence of records—to a FOIA request for records

on drones); Rosenfeld v. United States Dep’t of Justice, 57 F.3d 803, 806 (9th Cir. 1995).

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agency records improperly withheld,”119 and may hold employees who refuse to comply in

contempt.120

On the one hand, courts do not often force public disclosure of material the executive branch

insists is properly classified,121 and the executive branch has received criticism for its insufficient

responses to FOIA requests.122 On the other, courts do sometimes require public disclosure of

material the government objects to releasing, and will narrow the scope of broad exemption

claims made by the government. In ACLU v. CIA, for example, the D.C. Circuit rejected the

Central Intelligence Agency’s (CIA) FOIA response as overly broad and remanded the case to the

district court.123 In that case, the ACLU brought a FOIA claim seeking access to CIA records

concerning—but not necessarily about the agency’s own use of—drones.124 The CIA replied with

a “Glomar response”—“declining to either confirm or deny the existence of any responsive

records.”125 Glomar responses are acceptable government responses to FOIA requests in

situations where even the confirmation or denial of information would cause harm under a FOIA

exemption.126 However, Glomar responses are trumped—the agency cannot claim an

exemption—when “an agency has officially acknowledged otherwise exempt information.”127

The CIA claimed that disclosure of the “existence or nonexistence of CIA records responsive to

this request ... is a currently and properly classified fact, the disclosure of which reasonably could

be expected to cause damage to the national security.”128 The D.C. Circuit noted that the issue

before it was not whether the CIA itself operated drones, but rather “whether it has any

documents at all about drone strikes.”129 In particular, “‘whether it is logical or plausible’ for the

CIA to contend that it would reveal something not already officially acknowledged to say that the

Agency ‘at least has an intelligence interest’ in such strikes.”130 The court pointed out that given

that the executive branch had made public remarks about the existence of a drone program

already, “the answer to that question was no.”131 Therefore, the court remanded the case to the

district court to determine if the “contents—as distinguished from the existence—of the officially

acknowledged records may be protected from disclosure.”132

119

5 U.S.C. §552(a)(4)(B).

5 U.S.C. §552(a)(4)(G).

121

Bourdeau, supra note 109, at 514-15; Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 937 (D.C.

Cir. 2003) (Tatel, J., dissenting).

122

See, e.g., Christina E. Wells, CIA v. Sims: Mosaic Theory and Government Attitude, 58 Admin L. Rev. 845, 854

(2006); David E. Pozen, Note, The Mosaic Theory, National Security, and the Freedom of Information Act, 115 Yale

L. J. 628, 632, 654 (2005).

123

American Civil Liberties Union v. Central Intelligence Agency, 710 F.3d 422 (D.C. Cir. 2013).

124

Id. at 425.

125

Id. at 425-26.

126

Id. at 426. The opinion points to Roth v. U.S. Dep't of Justice, 642 F.3d 1161, 1178, 395 U.S. App. D.C. 340 (D.C.

Cir. 2011) Miller v. Casey, 730 F.2d 773, 775-78, 235 U.S. App. D.C. 11 (D.C. Cir. 1984); Gardels v. CIA, 689 F.2d

1100, 1103, 223 U.S. App. D.C. 88 (D.C. Cir. 1982) for examples of the operation of Glomar responses.

127

Id. at 426.

128

Id. at 428 (quoting Declaration of Mary Ellen Cole par.15).

129

Id. at 428.

130

Id. at 428-29 (quoting Wolf v. CIA, 473 F.3d 370, 375 (D.C. Cir. 2007)).

131

Id. at 429.

132

Id. at 432 (quoting Wolf v. CIA, 473 F.3d 370, 375 (D.C. Cir. 2007)) (italics in original).

120

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Courts have also rejected the executive branch’s privilege claims, as well as ordered the executive

branch to segregate classified from non-classified information and release the latter. In a case in

the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) brought by plaintiffs seeking

information about the FBI’s investigation of student movements at Berkeley, the government

sought to claim exemptions from disclosure based on national security.133 The district court

ordered the government to release some information completely and segregate other parts.134 The

Ninth Circuit affirmed as to both orders.135 As to the first group, the Ninth Circuit explained that

“general assertions” that disclosure would harm national security were not enough to carry the

government’s burden of claiming an exemption.136 Instead, the government must show with

particularity why specific documents would harm national security. Since the government did not

do so, those documents must be released.137 As to the second group of documents—those the

district court ordered to be segregated—the court noted that the district court’s decision to order

the release of documents, but allow the government to redact references to the identity of a

source, sufficiently accommodated the government’s security concerns.138

Common Law and Constitutional Limits to Disclosure

Nevertheless, courts have recognized the dangers of requiring the executive branch to release

classified information.139 Under the common law doctrine of the state secrets privilege, courts

have declined to compel the executive branch to reveal sensitive national security information in

cases brought against the government. For example, courts have completely dismissed claims

brought against the government based on espionage contracts at the pleadings on the theory that

any litigation on the matter would reveal sensitive information.140 Even in civil claims brought

against the government under federal statutes,141 courts will remove evidence from a case if there

is a reasonable danger that its inclusion poses harm to national security.142 Finally, if the “very

subject matter” of a claim against the government is a state secret—for example, the

extraordinary rendition program—some courts will dismiss the case entirely.143 The U.S. Court of

Appeals for the Fourth Circuit has explained that this practice is necessary in order to avoid the

“constitutional conflict that might [occur if] the judiciary demanded that the Executive disclose

highly sensitive military secrets.”144 On the other hand, other courts have based the privilege on

133

Rosenfeld v. United States Department of Justice, 57 F.3d 803, 806-08 (9th Cir. 1995).

Id. at 806.

135

Id.

136

Id. (quoting Wiener v. FBI, 943 F.2d 972, 981 (9th Cir. 1991)).

137

Id. at 807.

138

Id.

139

In United States v. Nixon, 418 U.S. 683 (1974), the Supreme Court rejected the President’s wide ranging claims of

immunity from complying with a judicial subpoena to turn over information. However, the Court noted that it would

accord greater deference in the case of “military, diplomatic, or sensitive national security secrets.” Id. at 706.

140

Tenet v. Doe, 544 U.S. 1 (2005); Totten v. United States, 92 U.S. 105 (1875).

141

See Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1078–79 (9th Cir. 2010) (plaintiff’s claims under 28

U.S.C.S. §1350 dismissed on state secrets grounds); El-Masri v. United States, 479 F.3d 296, 296, 306 (4th Cir. 2007)

(same).

142

United States v. Reynolds, 345 U.S. 1 (1953).

143

Jeppesen Dataplan, 614 F.3d at 1078–79; El-Masri, 479 F.3d at 306; Black v. United States, 62 F.3d 1115, 1119

(8th Cir. 1995); Fitzgerald v. Penthouse Int'l, Ltd., 776 F.2d 1236, 1243 (4th Cir. 1985); Terkel v. AT&T Corp., 441 F.

Supp. 2d 899, 919-20 (N.D. Ill. 2006).

144

El-Masri, 479 F.3d at 315.

134

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the prudential concern of protecting national security, rather than the constitutional question of

infringing on presidential power.145 To the extent the privilege is a common law doctrine, it may

be altered by statute. However, the executive branch would likely object that, at some point, such

legislation intrudes on the President’s power as Commander in Chief to protect national security

information.

Conclusion

Congress and the President thus share power over access to national security information.

Congress enjoys power to regulate access to classified information; however, the President

generally makes the specific determination about what particular information is classified. FISA

opinions and orders, most of which contain at least some sensitive facts pertaining to national

security, are a mixture of legal reasoning and sensitive national security information. Proposals

that allow the executive branch to first redact classified information from FISA opinions before

public release146 appear to be on firm constitutional ground. Such laws, in line with statutes like

FOIA, allow the executive branch to protect sensitive information and likely satisfy the executive

branch’s view of its constitutional obligations under Article II.147 In addition, these proposals

largely coincide with the protections accorded by courts via the state secrets privilege. In contrast,

a proposal that mandated all past FISA opinions be released in their entirety—without any

redactions by the executive branch—might raise a separation of powers issue. The executive

branch has historically enjoyed some protection from releasing properly classified information—

via statutory exemptions and the common law. Legislation ignoring these protections would

likely invite constitutional objections from the executive branch. Finally, a law that applied

retroactively—compelling the release of past FISA decisions—might raise different questions

than a law that applied only prospectively. In the former case, many past FISA decisions that

contain classified information would be affected. In the latter, the executive branch could

conceivably alter its strategy of what information to include in applications to the FISC, thus

alleviating concerns about compelling the release of classified information; although such an

effect might raise separate constitutional questions of its own.148

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

145

See, e.g., In re Sealed Case, 494 F.3d 139, 151 (D.C. Cir. 2007).

See, e.g., Ending Secret Law Act, H.R. 2475, 113th Cong. (2013); Ending Secret Law Act, S. 1130, 113th Cong.

(2013); FISA Court in the Sunshine Act of 2013, H.R. 2440, 113th Cong. (2013); FISA Court Reform Act of 2013, S.

1467, 113th Cong. (2013).

147

See Mukasey Letter, supra note 60, at 2-3.

148

The operational discretion afforded the President under the Commander-in-Chief Clause of Article II is beyond the

scope of this report. See supra, note 10.

146

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