718 F.2d 1137 (D.C. Cir. 1983), 81-2233, McGehee v. Casey

Docket Nº:81-2233.
Citation:718 F.2d 1137
Party Name:Ralph W. McGEHEE, Appellant v. William CASEY, Director, CIA.
Case Date:October 04, 1983
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1137

718 F.2d 1137 (D.C. Cir. 1983)

Ralph W. McGEHEE, Appellant

v.

William CASEY, Director, CIA.

No. 81-2233.

United States Court of Appeals, District of Columbia Circuit

October 4, 1983

Argued May 18, 1983.

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Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 81-00734).

Mark H. Lynch, Washington, D.C., with whom Susan W. Shaffer and Thomas R. Kline, Washington, D.C., were on brief, for appellants.

Al J. Daniel, Jr., Atty., Dept. of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty., Robert E. Kopp and Anthony J. Steinmeyer, Attys., Dept. of Justice, Washington, D.C., were on brief, for appellee. Susan M. Chalker, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for appellee.

Before WALD, Circuit Judge, MacKINNON, Senior Circuit Judge, and CELEBREZZE, [*] Senior Circuit Judge, United States Court of Appeals for the Sixth Circuit.

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Opinion for the Court filed by Circuit Judge WALD.

Separate Statement filed by Circuit Judge WALD.

Special Concurrence filed by Senior Circuit Judge MacKINNON.

WALD, Circuit Judge:

Appellant Ralph W. McGehee is a former Central Intelligence Agency (CIA) officer. When he joined the CIA, McGehee signed an agreement that on its face bars him from revealing classified information without prior CIA approval. After the CIA censored portions of a manuscript he wrote, McGehee sought a declaratory judgment that the CIA classification and censorship scheme violates the first amendment and that, even if the scheme were constitutional, his article contains no properly classified material. The district court rejected McGehee's first amendment challenge, and found, after giving deference to the CIA's judgment, that the CIA had properly classified the censored materials.

We affirm. The CIA classification and censorship scheme protects critical national interests. Furthermore, the classification criteria applied in this case--for "secret" information--specify the nature of information subject to censorship with sufficient particularity to satisfy the applicable constitutional tests for first amendment restraints on former CIA employees. The district court also properly gave deference to the CIA's detailed and reasoned explanation of its classification decisions. We agree that the CIA reasonably classified as "secret" the censored portions of McGehee's article.

I. BACKGROUND

In 1952, when he joined the CIA, McGehee signed a secrecy agreement, promising not to divulge "classified information" obtained by virtue of his employment "unless specifically authorized in writing" by the CIA to do so. 1 Pursuant to this agreement, on March 20, 1981, he submitted an article to the CIA for prepublication review. The article asserted that the CIA had mounted a campaign of deceit to convince the world that the "revolt of the poor natives against a ruthless U.S.-backed oligarchy" in El Salvador was really "a Soviet/Cuban/Bulgarian/Vietnamese/PLO/Ethiopian/Nicaraguan/International Terrorism challenge to the United States." 2 To lend plausibility to his assertion, McGehee's article proceeded "to review a few examples of ... CIA disinformation programs" in Iran, Vietnam, Chile, and Indonesia. 3 Four days later, on March 24, 1981, the CIA notified McGehee that portions of his article contained "secret" information, and accordingly withheld permission to publish those portions.

The CIA employs three classification levels. The most sensitive information--information that, if disclosed, "reasonably could be expected to cause exceptionally grave damage to the national security"--the CIA classifies "Top Secret." Exec. Order No. 12,065 Sec. 1-102, 3 C.F.R. 190, 191 (1979) (current version at Exec. Order No. 12,356 Sec. 1.1(a)(1), 3 C.F.R. 166, 167 (1983)). 4 The least restricted, but still sensitive, information--information that, if disclosed, "reasonably could be expected to cause identifiable damage to the national security"--the

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CIA classifies "Confidential." Id. Sec. 1-104, 3 C.F.R. at 191.

The CIA classified the censored portions of McGehee's article "Secret." "Secret" is the middle level classification between "Top Secret" and "Confidential":

"Secret" shall be applied only to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security.

Id. Sec. 1-103, 3 C.F.R. at 191. The CIA found that McGehee's identification of countries where the CIA had established bases would likely damage U.S. relations with those countries, and that his discussion of the details of a CIA operation in Indonesia would likely disclose secret intelligence methods and help identify secret intelligence sources. The CIA therefore concluded that portions of McGehee's article threatened to cause "serious damage to the national security."

The Nation magazine published McGehee's article on April 11, 1981 with the censored portions deleted. 5 McGehee then sought judicial review in the district court, challenging (1) the constitutionality of the CIA's classification and censorship scheme, and (2) the propriety, under that scheme, of classifying portions of his article "secret."

The district court summarily rejected McGehee's constitutional challenge. In the district court's view "the critical question is whether that information has been properly classified and thus [is] subject to censorship." 6 After a "de novo review of the [affidavits] submitted for in camera inspection" by the parties, and "exercis[ing] judicial deference to the administrative expertise" of the CIA, the district court found that the CIA had "properly classified the documents and [was] warranted in [its] censorship." 7

In this court, McGehee renews his claim that the CIA classification and censorship scheme violates the first amendment, and that, even if the scheme is constitutional, the CIA improperly classified portions of his article.

We affirm, holding that (1) when balanced against the first amendment interests in public disclosure of former agents' writings, the CIA scheme of classifying and censoring "secret" information is constitutional because (a) the government has a substantial interest in assuring secrecy in the conduct of foreign intelligence operations, and (b) the criteria for what constitutes "secret" information are neither overbroad, considering the governmental interest the scheme protects, nor excessively vague, considering the particularity with which the criteria offer guidance to the censor; (2) in reviewing whether specified information reasonably could be expected to cause actual serious harm if divulged, courts should accord deference to the CIA's reasoned explanation of its classification decision; and (3) in this case, the CIA properly classified the censored portions of McGehee's article.

II. THE CONSTITUTIONAL STANDARD FOR REVIEWING THE CENSORSHIP SCHEME

In Snepp v. United States, 444 U.S. 507, 509 n. 3, 100 S.Ct. 763, 765 n. 3, 62 L.Ed.2d 704 (1980) (per curiam), the Supreme Court held that the CIA could, consistent with the first amendment, recover damages for breach of a secrecy agreement under which a former agent promised to submit CIA-related writings to the CIA for prepublication clearance. The Court found the secrecy agreement to be "a reasonable means for protecting" the "secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service. Id. In Snepp, the former agent published CIA-related information without submitting his manuscript for prepublication review. The government's action in Snepp, therefore,

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did "not depend upon whether [Snepp's] book actually contained classified information .... The Government simply claim[ed] that ... Snepp should have given the CIA an opportunity to determine whether the material he proposed to publish would compromise classified information or sources." Id. at 511, 100 S.Ct. at 766.

In this case, by contrast, McGehee adhered to his secrecy agreement. He submitted his manuscript for prepublication review, and deleted portions of his article in accordance with the CIA's orders. At issue here is the constitutionality of the CIA's substantive criteria and scheme for deciding how to classify, and thereby censor, writings of former agents.

We note, to begin with, that McGehee's secrecy agreement applies only when he seeks to publish "classified information" that "has come or shall come to [his] attention by virtue of [his] connection with the Central Intelligence Agency." 8 The agreement does not extend to unclassified materials or to information obtained from public sources. The government may not censor such material, "contractually or otherwise." United States v. Marchetti, 466 F.2d 1309, 1313 (4th Cir.), cert. denied, 409 U.S. 1063, 93 S.Ct. 553, 34 L.Ed.2d 516 (1972). The government has no legitimate interest in censoring unclassified materials. Moreover, when the information at issue derives from public sources, the agent's special relationship of trust with the government is greatly diminished if not wholly vitiated. 9 Accord Snepp v. United States, 444 U.S. at 513 n. 8, 100 S.Ct. at 767 n. 8 (dictum) ("if in fact information is unclassified or in the public domain, neither the CIA nor foreign agencies would be concerned").

As in McGehee's case, the CIA requires all of its employees to enter into a secrecy agreement as a condition of employment. 10 This fact is critical to our first amendment analysis because numerous Supreme Court decisions establish that:

[T]he State has interests as an employer in regulating the speech of...

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