Military Audit Project v. Casey
| Decision Date | 20 October 1969 |
| Docket Number | No. 80-1110,HMB-1,80-1110 |
| Parties | , 7 Media L. Rep. 1708 MILITARY AUDIT PROJECT, Felice D. Cohen, Morton H. Halperin, Appellants, v. William CASEY, Director of Central Intelligence, et al. . Argued 3 Feb. 1981. Decided 4 May 1981. Allan S. Hoffman, Washington, D. C., with whom Robert A. Seefried, Washington, D. C., was on the brief for appellants. Marc Richman, Atty. Dept. of Justice, Washington, D. C., with whom Alice Daniel, Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on the brief for appellees. Before PECK * , Senior Circuit Judge, United States Court of Appeals for the Sixth Circuit, MacKINNON and WILKEY, Circuit Judges. Opinion for the Court filed by Circuit Judge WILKEY. WILKEY, Circuit Judge: This case arises out of a Freedom of Information Act (FOIA or "the Act") request partially rejected by the government for reasons of national security. It is now before this court for the third time, already having commanded the attention of three district judges and outlasted three Directors of Central Intelligence. The appellants seek access to a wide variety of documents classified "Secret" regarding the Glomar Explorer project, ostensibly undertaken by the Central Intelligence Agency (CIA) for the purpose of raising a sunken Russian submarine from the floor of the Pacific Ocean. Having received almost two thousand pages of documentation in partial satisfaction of their request, the appellants now seek to compel the government to turn over much of what remains undisclosed. To justify withholding the requested documents the government has submitted to the district court extensive affidavits by high government officials detailing the nature of the material withheld and the implications for the national security should it be released. The district court found the affidavits sufficient to establish the government's right to withhold the documents under the Act, and therefore, without permitting further discovery by the appellan |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Allan S. Hoffman, Washington, D. C., with whom Robert A. Seefried, Washington, D. C., was on the brief for appellants.
Marc Richman, Atty. Dept. of Justice, Washington, D. C., with whom Alice Daniel, Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on the brief for appellees.
Before PECK *, Senior Circuit Judge, United States Court of Appeals for the Sixth Circuit, MacKINNON and WILKEY, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKEY.
This case arises out of a Freedom of Information Act (FOIA or "the Act") request partially rejected by the government for reasons of national security. It is now before this court for the third time, already having commanded the attention of three district judges and outlasted three Directors of Central Intelligence. The appellants seek access to a wide variety of documents classified "Secret" regarding the Glomar Explorer project, ostensibly undertaken by the Central Intelligence Agency (CIA) for the purpose of raising a sunken Russian submarine from the floor of the Pacific Ocean. Having received almost two thousand pages of documentation in partial satisfaction of their request, the appellants now seek to compel the government to turn over much of what remains undisclosed. To justify withholding the requested documents the government has submitted to the district court extensive affidavits by high government officials detailing the nature of the material withheld and the implications for the national security should it be released. The district court found the affidavits sufficient to establish the government's right to withhold the documents under the Act, and therefore, without permitting further discovery by the appellants, granted summary judgment for the government. The present appeal followed.
The appellants' principal contention on appeal is that prior official disclosures by the government about the Glomar Explorer, together with widespread but unofficial reports in the press, suggest both that much of the material still withheld is already in the public domain and that the release of what remains undisclosed would do little additional damage to the national security, if any. The government, on the other hand, contends that in spite of all the publicity the public may still not know even the true purpose of the Glomar Explorer mission, so that release of the withheld documents could pose a serious threat to the national security. The government argues that its affidavits are sufficient to establish that no genuine issues of material fact remain regarding whether the deleted documents are exempt from disclosure under the Freedom of Information Act. This case thus turns on the sufficiency of the government's affidavits to show that in the name of national security it is entitled to withhold the requested documents. Because these affidavits loom so large in the decision of this case, throughout this opinion we excerpt liberally from them as we consider their adequacy.
The events which provide the motivation for the requests litigated here under the Freedom of Information Act are intriguing, involving, as they reportedly do, a covert CIA operation costing more than a third of a billion dollars, the billionaire recluse Howard Hughes, a sunken Soviet submarine carrying nuclear weaponry, the theft during a highly professional burglary of documents detailing the mission, and finally, tireless CIA efforts, for a time successful, to obtain the silence of many of the nation's most prestigious news organizations. For our purposes here, the briefest of summaries of what has been reported by the press but not officially confirmed by the government will suffice to provide the background necessary to an understanding of this case.
According to reports widely publicized in 1975, 1 a Soviet submarine carrying nuclear missiles sunk sometime in 1968 in about three miles of water somewhere northwest of Hawaii. The location of the sunken craft was unknown to the Soviets, who tried unsuccessfully to find the remains. United States Navy sensors, however, managed to pinpoint the submarine's final resting place and an American electronics ship dispatched to the spot detected, scanned and photographed the sunken vessel.
Because when it went down the submarine took with it torpedoes, nuclear missiles, codes and code machines, communications gear and perhaps other equipment of intense interest to the American military and intelligence services, the Navy approached the CIA to develop the capability necessary to raise the vessel from its underwater grave for analysis by United States experts. The CIA, in turn, went to Hughes, who arranged for the construction of a 36,000-ton floating platform, the Hughes Glomar Explorer, and a huge submersible barge, designated the HMB-1 (an abbreviation for Hughes Mining Barge-1 ) to accompany it. Together these two vessels were designed to raise the Russian submarine under an elaborate cover story in which the Glomar Explorer's mission was said to be the recovery of manganese nodules from the ocean floor.
In June 1974 the Glomar Explorer and its companion barge sailed to the site of the sunken submarine and attempted to raise it by lowering giant claws to the bottom of the ocean, seizing the ship and winching it to the surface. Unfortunately, weakened by the corrosive influence of the deep and by the mishap that sent it to the bottom, the submarine broke in two about halfway to the surface. Only the forward third was successfully recovered; the remainder settled once more to the ocean floor. At this point, with the operation already having cost $350 million, arrangements were made to try again to lift from the bottom what still remained there.
But at about this time a mysterious burglary took place at a Hughes office in Los Angeles. Four or five armed men overwhelmed a guard, slipped past a sophisticated electronic alarm system and burned their way into a Hughes safe containing documents outlining the participation of the Hughes organization in the effort to raise the submarine. As a result the Los Angeles Times somehow came into the possession of incomplete and somewhat garbled information about the Glomar Explorer project and, on 8 February 1975, published what it had learned.
Director William Colby and other CIA officials then scrambled to suppress the story. They met with temporary success: the New York Times, the Los Angeles Times, the Washington Post, the Washington Star, the three major television networks, the National Public Broadcasting System, Time magazine and Newsweek all agreed to "hold" the story at least until someone else published an account of the operation in exchange for briefings on the submarine raising efforts. But on 18 March 1975 columnist Jack Anderson decided to break the story and "the cat was out of the bag."
Or was it? Questions remain. As Time put it in its 31 March 1975 article:
(T)here is the puzzle of why so many reporters for major newspapers, magazines and TV networks simultaneously stumbled upon the (Glomar Explorer project) trail. On the morning after, some journalists got the feeling that the CIA had actually been helpful all along in getting the story out, while at the same time it apparently tried to suppress the story. There are several theories .... The last theory goes off into the wild blue yonder, suggesting that raising a Soviet submarine was not (the project's) mission at all, but the supreme cover for a secret mission as yet safely secure. 2
Three days after the Time story was published, on 3 April 1975, letters signed by Fritzi Cohen on behalf of the Military Audit Project were sent to the Department of Defense and to the Central Intelligence Agency requesting access under the Freedom of Information Act to "the contract and all other documents pertaining to the planning, design, construction, leasing, use and disposition of the Glomar Explorer, recently reported as used to recover the Soviet Submarine in the Pacific." 3 Invoking Exemptions 1 and 3 of the Freedom of Information Act (), 4 each agency was quick to reject the requests. 5 At the outset, neither agency was willing to confirm or to deny even the existence of such records. Both agencies stated that such an admission or denial could itself compromise national security. 6
Cohen then pursued administrative appeals, but these also were denied by both agencies. 7 In October 1975 the Military Audit Project and Cohen, now joined by Mortin Halperin, requested reconsideration of these denials. 8 These requests were in turn denied, although by this time the CIA was at least willing to admit both that the Glomar Explorer belonged to the United States though not necessarily to the CIA and that a classified United States government contract provided evidence of that ownership. 9
Unsatisfied, the Military Audit Project, joined by Cohen and Halperin individually, in December 1975 brought an action in the United States District Court for the District of Columbia to compel the production of
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...
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