U.S. v. American Tel. & Tel. Co., 76-1712

• Decision Date: 12 December 1977
• Docket Number: No. 76-1712,76-1712
• Citation: 567 F.2d 121,185 U.S.App.D.C. 254
• Parties: UNITED STATES of America v. AMERICAN TELEPHONE & TELEGRAPH COMPANY et al., John E. Moss, Individually and on behalf of the U. S. House of Representatives and the House Committee on Interstate and Foreign Commerce, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 121

567 F.2d 121

185 U.S.App.D.C. 254

UNITED STATES of America v. AMERICAN TELEPHONE & TELEGRAPH COMPANY et al., John E. Moss Individually and on behalf of the U. S. House of Representatives and the House Committee on Interstate and Foreign Commerce, Appellant.

No. 76-1712.

United States Court of Appeals, District of Columbia Circuit.

Argued June 3, 1977.

Decided Oct. 20, 1977.

Rehearing Denied Dec. 12, 1977.

Joseph M. Hassett, Washington, D.C., with whom E. Barrett Prettyman, Jr., Jean S. Moore and Janet L. McDavid, Washington, D.C., were on the brief for appellant.

Irwin Goldbloom, Deputy Asst. Atty. Gen., Washington, D.C., with whom Barbara Allen Babcock, Asst. Atty. Gen., Earl J. Silbert, U.S. Atty., Thomas S. Martin, Sp. Asst. Atty., Leonard Schaitman, Neil H. Koslowe, David J. Anderson and John T. Boese, Attys., Dept. of Justice, Washington, D.C., were on the brief for appellee United States of America.

Nathaniel Hawthorne, Washington, D.C., entered an appearance for appellees American Tel. & Tel. Co., et al.

Before LEVENTHAL, ROBINSON and WILKEY, Circuit Judges.

Opinion for the Court filed by LEVENTHAL, Circuit Judge.

LEVENTHAL, Circuit Judge:

This case brings to us for a second time conflicting assertions by the executive and legislative branches, contentions that require the third branch to decide whether its constitutional mandate to decide controversies extends to such a conflict, and if so what measure of judicial resolution is sound and appropriate.

This is a general and abstract preface for a specific and concrete clash. The dispute arose out of an investigation by the Subcommittee on Oversight and Investigations of the House Committee on Interstate and Foreign Commerce. In the course of the investigation, the Subcommittee issued a subpoena for certain documents in the hands of the American Telephone and Telegraph Co. (AT&T). The Justice Department sued to enjoin AT&T from complying with the subpoena, on the ground that compliance might lead to public disclosure of the documents, with adverse effect on national When we first came to the case, we developed a novel and somewhat gingerly approach for the delicate problem of accommodating the needs and powers of two coordinate branches in a situation where each claimed absolute authority. See United States v. AT&T, 179 U.S.App.D.C. 198, 551 F.2d 384 (1976). To the extent possible, we wished to avoid a resolution that might disturb the balance of power between the two branches and inaccurately reflect their true needs. We therefore refrained from deciding the merits of their claims, and indeed did not resolve the preliminary issue of whether the dispute presented a nonjusticiable political question. Instead we remanded the record to the District Court for further proceedings during which the parties and counsel were requested to attempt to negotiate a settlement. We called for a report by the District Court within three months. That time was later extended, to permit the new officials of the incoming administration to grapple with the problem. On April 22, 1977, District Judge Gasch made his report. We heard oral argument on June 3, 1977.

security. Congressman Moss, chairman of the Subcommittee, intervened on behalf of the House, as the real party in interest. The District Court issued the injunction and Chairman Moss appealed.

Negotiation has narrowed but not bridged the gap between the parties. Accordingly, we must adopt a somewhat more traditional approach. We begin by deciding that complete judicial abstention on political question grounds is not warranted. In addressing the merits, however, we continue to move cautiously. Taking full account of the negotiating positions, we have chartered the course that we think is most likely to accommodate the substantial needs of the parties. Doubtless, neither will be satisfied. But in our view there is good reason to believe that the procedure set forth in this opinion will prove feasible in practice, with such adjustments and refinements as may be evolved by the parties and the district court. What we decide is only that, so long as this procedure gives promise of satisfying the substantial needs of both parties, this court may appropriately continue to refrain from a decision upholding either of the claims of absolute authority. Should the parties test our approach and encounter difficulties, we may have to determine whether further relief is warranted. In that effort we will be aided by the experience of the parties.

I. FACTUAL BACKGROUND

A. Facts Culminating in Our Earlier Opinion

The facts as of our prior opinion, set forth in 551 F.2d at 385-88, may be summarized briefly.

The purpose of the Subcommittee's investigation was to examine the nature and extent of warrantless wiretapping in the United States for asserted national security purposes, and to determine whether legislation was required to curb possible abuse of that power. In carrying out warrantless taps authorized by the Attorney General, the FBI used AT&T facilities "leased lines" to carry tapped communications to its monitoring stations. It obtained these lines through "request letters" addressed to AT&T which specified a target line to be tapped, identified by telephone number, address, or numerical designation.

In furtherance of the investigation, a subpoena, issued on June 22, 1976, required AT&T to turn over to the Subcommittee all national security request letters. Thereupon, the Justice Department sought to negotiate with Subcommittee Chairman Moss an alternative means of satisfying the Subcommittee's needs which would, at the same time, minimize the risk to national security posed by the possibility of public disclosure of request letters pertaining to foreign intelligence surveillance. ¹ Negotiations focused upon the possibility of substituting The stumbling block in the negotiations was the means of verifying the accuracy of the executive's classification of surveillance as domestic or foreign, and of the generic descriptions. The Subcommittee proposed that three of its staff members conduct verification by examining the original memoranda corresponding to a subsample of the edited memoranda. They would inspect the original memoranda at the FBI, but would be permitted to take notes back to the Subcommittee. The White House rejected this proposal, in view of the House rule giving any member of the House access to such notes. ²

for these request letters expurgated copies of the backup memoranda upon which the Attorney General had based his decisions to authorize the warrantless taps. All information in these memoranda that would identify the targets of the taps would be replaced by generic descriptions. The Subcommittee agreed to an initial canvass of two years, 1972 and 1975. These memoranda, providing information as to the purpose and nature of the tap, would probably have been more useful to the Subcommittee than the request letters themselves.

The White House proposed that Chairman Moss, rather than the Subcommittee staff, inspect the subsample of unedited memos. This was rejected by the Subcommittee.

The executive's final proposal, made by President Ford to Chairman Moss, was that the Attorney General would conduct the verification. If the Subcommittee were dissatisfied, it could appeal to the President. Chairman Moss rejected this proposal.

On July 22, after negotiations had broken down, the Justice Department sued to enjoin AT&T from complying with the Subcommittee subpoena. Chairman Moss intervened as a defendant. The District Court granted the injunction and Chairman Moss appealed.

Rather than attempt to resolve the dispute at that time, this court remanded to the District Court, with the suggestion that the parties attempt to negotiate a settlement. We indicated at that time what appeared to be the outlines of a possible settlement, 551 F.2d at 395 & n. 18: Subcommittee access to edited backup memoranda seemed likely to satisfy the Subcommittee's needs more readily than access to the request letters, without posing so serious a risk to national security. Verification of the accuracy of classification and generic descriptions might be done by Subcommittee staff members, with disputes to be resolved by the District Court after in camera inspection of the edited and original memoranda.

B. Subsequent Developments

On March 11, 1977, in the first negotiating session after our remand, the Justice Department offered to furnish to the Subcommittee only expurgated backup memoranda. If the Subcommittee should raise a question concerning the classification of a memorandum as pertaining to foreign or domestic surveillance, the Attorney General would review the material and verify the propriety of the classification. The Subcommittee balked at the absence of independent verification. As a counterproposal, it suggested that it receive, in addition, a sample of unexpurgated memoranda and request letters, which would be kept under adequate security arrangements. ³ Justice Department representatives rejected this proposal.

In the second negotiating session, on March 14, the Department of Justice proposed in camera review of unexpurgated memoranda by the court, if the Subcommittee should raise a question concerning any expurgated version. Subcommittee representatives rejected this proposal, arguing that verification must be done by the Subcommittee itself, since the Court was not in a position to determine what was important On March 21, Chairman Moss met with Attorney General Bell. Discussion centered on the possible examination by the Subcommittee of unexpurgated memoranda, with the privilege of taking notes, and appropriate safeguards against dissemination of sensitive information through such note-taking. The Attorney General agreed to submit to the Subcommittee a specific proposal along these lines. ⁶

                to the Subcommittee's investigation.  4  The Subcommittee proposed that its selected staff members

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