Military Audit Project v. Bush, Civ. A. No. 75-2103.

• Decision Date: 05 March 1976
• Docket Number: Civ. A. No. 75-2103.
• Parties: MILITARY AUDIT PROJECT et al., Plaintiffs, v. George BUSH et al., Defendants.
• Court: U.S. District Court — District of Columbia

418 F. Supp. 876

MILITARY AUDIT PROJECT et al., Plaintiffs, v. George BUSH et al., Defendants.

Civ. A. No. 75-2103.

United States District Court, District of Columbia.

March 5, 1976.

William A. Dobrovir, Washington, D. C., for plaintiffs.

Jeffrey F. Axelrad, J. Roger Edgar, Paul F. Figley, Dept. of Justice, Washington, D. C., for defendants.

MEMORANDUM

GESELL, District Judge.

This is a suit under the Freedom of Information Act, 5 U.S.C. § 552, against the Central Intelligence Agency and the Department of Defense. Plaintiffs seek to obtain certain material relating to the Glomar Explorer,

. . . to wit the contract, and all other documents pertaining to the financial arrangements between or among the government of the United States, any agency thereof, Hughes Tool Co., Summa Corporation and Global Marine, Inc., or any of them, in particular such documents that reflect sums paid by the government of the United States or any agency thereof to any of the other entities named above, the profits earned by any of such other entities and any provisions for disposition by the government of the United States to any of the other named entities, with respect to the vessel "Glomar Explorer." (Complaint, para. 1).

Defendants have not yet answered, but instead filed a motion to dismiss, or, in the alternative, for summary judgment, relying on 5 U.S.C. §§ 552(b)(1), (b)(3). They have also moved pursuant to Fed.R.Civ.P. 26(c) for leave to submit material for in camera inspection by the Court and for all further papers filed in their case, including those hereafter presented in aid of the motion to dismiss, to be held under seal and not revealed to anyone pending final disposition of the litigation. Their proposed form of order is annexed. In particular, the Government wishes to submit two affidavits in camera, one classified Top Secret and the other Secret, to support the motion to dismiss. The Government has publicly filed the very vague and conclusory affidavit of Lawrence S. Eagleburger, Deputy Under Secretary for Management of the Department of State, which asserts that "the information relevant to the United States Government case has been classified pursuant to Executive Order 11652, 3 C.F.R., Executive Order 11652 (1974 edition) on the ground that public disclosure would damage the national security, including the foreign relations of the United States."

Since the supporting material has not yet been submitted, the defendants' motion to dismiss, or, in the alternative, for summary judgment is not yet ripe for disposition, and the matter is now before the Court only on defendants' motion for in camera proceedings. The Government urges this Court to follow the approach adopted in Phillippi v. CIA, Civil Action No. 75-1265 (D.D.C. Dec. 1, 1975), appeal pending, No. 76-1004 (D.C. Cir.), in which such an in camera method was utilized. This motion is vigorously opposed by plaintiffs. The matter has been fully briefed and oral argument was had.

The Freedom of Information Act contemplates that when a citizen seeks information from the Executive Branch, the Executive may refuse to disclose if the material requested falls within various exemptions delineated in the statute. The Act allows the Executive to state his reasons for withholding in general, unrevealing terms, and to ask that the underlying material be delivered to the Court, in chambers, privately for the Court's ex parte review. Informal hearings and further documentation may also be received ex parte in aid of the review. Thus a Federal Judge can be placed in an untenable position which ignores fundamental considerations of due process. Should the Court choose to proceed in camera in its discretion, the citizen is denied access to the papers and as a practical matter neither he nor his counsel have any opportunity to question the factual grounds on which exemption is sought. This is what the CIA and the Department of Defense propose in the formal order presented to the Court.

When this extraordinary arrangement is viewed in terms of its implications, it is readily apparent that considerations of convenience and expediency have been allowed to obscure the true role of the judiciary under our tripartite system. It has been argued before Congress and elsewhere that the courts do not have the knowledge or facilities for performing the assigned task but, whatever the merit of this position, there is a more fundamental issue.

Is it not alien to our entire jurisprudence that courts are to function ex parte in private without benefit of the adversary process? Will it not degrade the judiciary if it is used as a mechanism for resolving statutory rights on the basis of undisclosed representations made in chambers to judges by parties having a direct personal interest in the outcome? Surely our whole jurisprudence since the Magna Carta and the abolition of Star Chamber proceedings requires that the judiciary in both fact and appearance remain neutral, independent of Executive or legislative influence. The adversary system is a well-tested safeguard for preserving the integrity of the judicial process. It is the duty of a judge wherever possible to resolve rights of citizens upon facts and arguments that are presented in an adversary context exposed to public view with all the protections fair hearing and due process provide.

We are dealing here with the right of a citizen to receive information from his government. This is a right declared by Congress. The citizen as well as the Government has rights to be protected. There is justifiable concern in the land that on some occasions the Executive Branch has withheld information, sometimes even for personal or malevolent reasons, which should be subjected to public scrutiny. There is equally justifiable concern that Federal Courts have undertaken responsibilities that were never intended by assuming policy and administrative functions that the Constitution contemplated should properly reside with the Executive or the Congress. It is a...