553 F.2d 190 (D.C. Cir. 1977), 75-1862, Harrington v. Bush

Docket Nº:75-1862.
Citation:553 F.2d 190
Party Name:Michael J. HARRINGTON, Appellant, v. George BUSH, as Director of the Central Intelligence Agency, et al.
Case Date:February 18, 1977
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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553 F.2d 190 (D.C. Cir. 1977)

Michael J. HARRINGTON, Appellant,

v.

George BUSH, as Director of the Central Intelligence Agency, et al.

No. 75-1862.

United States Court of Appeals, District of Columbia Circuit

February 18, 1977

Rehearing Denied 15 April 1977.

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Michael Krinsky, New York City, with whom Eric Lieberman, New York City, and David Rein, Washington, D.C., were on the brief, for appellant.

John K. Villa, Atty., Dept. of Justice, Washington, D.C., for appellees. Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U.S. Atty., Leonard Schaitman, and Thomas S. Moore, Attys., Dept. of Justice, Washington, D.C., were on the brief for appellees.

Before TAMM, MacKINNON and WILKEY, Circuit Judges.

Opinion for the Court filed by WILKEY, Circuit Judge.

WILKEY, Circuit Judge:

Appellant, a Member of the United States House of Representatives, 1 filed suit in the District Court seeking both a declaration that certain foreign and domestic activities of the Central Intelligence Agency (hereinafter the Agency or the CIA) are illegal and also an injunction prohibiting the Agency from using the funding and reporting provisions of the Central Intelligence Agency Act of 1949 2 (hereinafter the Act) in connection with the allegedly illegal activities. 3 On a motion by the defendants,

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the District Court (Pratt, J.) dismissed the complaint on the grounds that the appellant lacked standing to bring the action and that the issues presented were nonjusticiable political questions. 4 We affirm the order of the District Court on the grounds that the appellant lacks standing in his capacity as a Congressman 5 to maintain this action. 6

I. THE CHALLENGED STATUTORY FRAMEWORK

The funding and reporting provisions of the CIA Act, which are the object of appellant's challenge in this case, represent an exception to the general method for appropriating and reporting the expenditure of federal funds. Article I, section 9, clause 7 of the U.S. Constitution provides that

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

This clause is not self-defining and Congress has plenary power to give meaning to the provision. 7 The Congressionally chosen

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method of implementing the requirements of Article I, section 9, clause 7 is to be found in various statutory provisions. With respect to the appropriations process, the relevant laws of general application are found at 31 U.S.C. §§ 11, 628, and 696. The President is required by section 11 to present a detailed annual budget to Congress which itemizes proposed expenditures for each agency or department. Section 628 provides that appropriated funds "shall be applied solely to the objects for which they are respectively made, and for no others." 8 Section 696 prevents the transfer of funds appropriated to one agency or instrumentality to another agency or instrumentality without express congressional approval. 9

With respect to the reporting of expenditures, the key statutory provision of general application is 31 U.S.C. § 1029 which imposes a duty on the Secretary of the Treasury to provide Congress on an annual basis with ". . . an accurate, combined statement of the receipts and expenditures . . . of all public moneys. . . ." 10 Since Congressional power is plenary with respect to the definition of the appropriations process and reporting requirements, the legislature is free to establish exceptions to this general framework, as has been done with respect to the CIA.

By virtue of section 403f(a) of the CIA Act, the Agency is authorized to

Transfer to and receive from other Government agencies such sums as may be approved by the Bureau of the Budget, for the performance of any of the functions or activities authorized under sections 403 and 405 of this title, and any other Government agency is authorized to transfer or receive from the Agency such sums without regard to any provisions of law limiting or prohibiting transfers between appropriations. Sums transferred to the Agency in accordance with this paragraph may be expended for the purposes and under the authority of sections 403a-403j of this title without regard to limitations of appropriations from which transferred. . . . 11

Thus, the funds used to operate the CIA do not derive from a specific appropriation voted by the Congress. Rather, these funds are concealed within the appropriations requests for other agencies in the President's annual budget proposal. After Congress approves the appropriations for these other agencies in which CIA funds are concealed, the funds for the Agency are secretly transferred by the Office of Management and Budget to the CIA. 12

We are informed by appellant in his complaint as to the procedure used by the House of Representatives to approve funds for the CIA. 13 Under this practice the CIA requests the Subcommittee on Intelligence of the House Appropriations Committee to cause appropriations bills for other government agencies to be enlarged beyond their needs so that the excess funds can be transferred to the Agency. The members of the Subcommittee, and the Chairman of the full Appropriations Committee, are informed as to which bills contain funds that can be transferred to the CIA. The funding of the CIA does not, therefore, take place in total secrecy; the funding scheme represents a

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very particularized judgment on the part of the House as to which of its members should have access to this funding information. The appellant in this case is not one of the Congressmen who are given access to this information under the House practice.

With respect to the reporting of its expenditures the CIA is exempted from the general requirements:

The sums made available to the Agency may be expended without regard to the provisions of law and regulations relating to the expenditure of Government funds; and for objects of a confidential, extraordinary, or emergency nature, such expenditure of the Director and every such certificate shall be deemed a sufficient voucher for the amount therein certified. 14

The precise nature and content of the "certificate of the Director" is not clear from the information presented by the parties in this case. 15 The significant point is that the procedure represents the specific judgment of Congress as to flow of information required from the CIA.

The appellant in this case does not question the constitutional sufficiency of the funding and reporting provisions of the CIA Act or the laws of general application outlined above. 16 Rather, appellant's challenge is based on the manner in which the CIA is administered. Although there was confusion in the briefs and at argument concerning this point, there are two related yet analytically distinct causes of action presented by appellant. Appellant contends that the Agency has abused its delegated authority by engaging in certain foreign 17 and domestic 18 activities which are allegedly in excess of the CIA's statutory authority. 19 In his first cause of action appellant seeks a declaratory judgment that these foreign and domestic activities are illegal and injunctive relief to prevent future occurrences. Appellant relies entirely on Mitchell v. Laird 20 to support his standing as a Congressman to seek this relief related to the first cause of action.

The appellant's second cause of action, which he has stressed on this appeal, builds on the factual allegations related to the first. Appellant contends that, in carrying out the allegedly illegal foreign and domestic activities, the CIA has improperly utilized the special funding and reporting provisions of the CIA Act, since these provisions are to be used only in connection with authorized activities. 21 Appellant seeks a declaration that the use of the CIA Act provisions for the execution of the allegedly improper activities is illegal, coupled with appropriate injunctive relief. 22 Appellant concedes that his right to information concerning the CIA is to be determined by Congressionally enacted statutes and procedures but contends that the laws of general application, not the exceptions carved out by the CIA Act, govern his right to information concerning those Agency activities in excess of statutory authority. 23 With respect to his standing to seek the relief related to the misuse of the CIA Act, appellant asserts interests different from those

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asserted to support the first cause of action. 24

There are two additional points which deserve mention in order to present an accurate description of the nature of appellant's challenge in this case. First, the allegations of improper foreign and domestic activities on the part of the CIA are derived from information which has been put on the public record by the defendants in this case. 25 Although the defendants acknowledge that these activities have taken place, they have not acknowledged any illegality in connection with the activities. 26 In addition, appellant contends that the defendants have stated their intention to continue with similar activities in the future. 27 Thus, Congress would appear to be on notice with respect to past and probable future conduct on the part of the Agency.

The second point concerns the reaction of Congress to this public information regarding CIA activities. Appellant states that the public acknowledgment of the foreign and domestic activities in question "has caused considerable controversy in both Houses of Congress" 28 and has resulted in numerous bills and resolutions being introduced concerning the...

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