Alfred A. Knopf, Inc. v. Colby, s. 74--1478

• Decision Date: 27 May 1975
• Docket Number: 74--1479,Nos. 74--1478,s. 74--1478
• Citation: 509 F.2d 1362
• Parties: ALFRED A. KNOPF, INC., et al., Appellees, v. William COLBY, as Director of Central Intelligence of the United States, andHenry Kissinger, as Secretary of State of the United States, Appellants. ALFRED A. KNOPF, INC., et al., Appellants, v. William COLBY, as Director of Central Intelligence of the United States, andHenry Kissinger, as Secretary of State of the United States, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1362

509 F.2d 1362

29 A.L.R.Fed. 593

ALFRED A. KNOPF, INC., et al., Appellees, v. William COLBY, as Director of Central Intelligence of the

United States, andHenry Kissinger, as Secretary of

State of the United States, Appellants.

ALFRED A. KNOPF, INC., et al., Appellants, v. William COLBY, as Director of Central Intelligence of the

United States, andHenry Kissinger, as Secretary of

State of the United States, Appellees.

Nos. 74--1478, 74--1479.

United States Court of Appeals Fourth Circuit.

Argued June 3, 1974.

Decided Feb. 7, 1975.

Certiorari Denied April 14, 1975.

See 95 S.Ct. 1555.

Certiorari Denied May 27, 1975.

See 95 S.Ct. 1999.

Floyd Abrams, New York Ciry (Eugene R. Scheiman, Loretta A. Preska and Cahill Gordon & Reindel, New York City, on brief), for Alfred A. Knopf. Inc.

Melvin L. Wulf, New York City (John H. F. Shattuck, American Civil Liberties Union Foundation, New York City, on brief), for Marchetti and Marks.

Irwin Goldbloom, Atty., U.S. Dept. of Justice (Carla A. Hills, Asst. Atty. Gen., Brian P. Gettings, U.S. Atty., David J. Anderson and Raymond D. Battocchi, Attys., U.S. Dept. of Justice, John S. Warner, Gen. Counsel, Lawrence R. Houston and John K. Greaney, Attys., C.I.A., Mark B. Feldman, Deputy Legal Adviser, and K. Eugene Malmborg, Asst. Legal Adviser, Dept. of State, on brief), for William Colby and Henry Kissinger.

Before HAYNSWORTH, Chief Judge, and WINTER and CRAVEN, Circuit Judges.

HAYNSWORTH, Chief Judge:

This is a sequel to United States v. Marchetti, 4 Cir., 466 F.2d 1309 in which, because of a secrecy agreement he had executed, we upheld an injunction prohibiting Marchetti's public disclosure of classified information acquired by him during the course of his employment by the Central Intelligence Agency and requiring him to submit any material he intended to publish to that agency for its review in advance of publication.

After our earlier decision, Marchetti, in collaboration with John Marks, a former employee of the State Department who had bound himself not to disclose classified information acquired by him during the course of his employment, prepared the manuscript of a book which the plaintiff, Alfred A. Knopf, Inc. intended to publish. After review in the CIA, a letter was written specifying the deletion of 339 items said to contain classified information. Later, after a conference with Marchetti and his lawyer, the CIA agreed to release 114 of the deletions. Later another 29 deletion items were released and still later another 57, leaving 168 deletion items upon which the CIA stood fast.

This action was filed by Alfred A. Knopf, Inc., Marchetti and Marks in the United States District Court for the Southern District of New York, seeking an order which would permit the publication of the then remaining deletion items. On motion of the defendants, the action was transferred to the Eastern District of Virginia where the Marchetti case had been tried and where it could come before the same judge who had tried Marchetti.

I.

At the trial, the four deputy directors of the CIA were presented as witnesses. Collectively they covered all of the 168 deletion items, each covering certain of them. Each testified, in effect, that the deletion item revealed information which was classified, that the information was classified from the inception of the program or from the time of the witness' first contact with it and was still classified. With respect to most, if not all of the items, however, the witness was unable to say who classified the information, for Executive Order No. 10501, ¹ in effect in the relevant times, did not require the classifying officer to record his identity, as Executive Order No. 11652 ² now does. Nor were they certain about when a particular matter had been classified except certain of the items with respect to which the witness stated the information and been classified from the beginning or from the time of his first contact with it.

These witnesses were questioned about the manner in which they determined that particular items had been classified. Typically, the response was that the witness read the Marchetti-Marks manuscript, marked passages which he thought revealed classified information and then called upon members of the staff for research assistance. The witness indicated that he wished to be certain of his grounds and to make no mistake. The witness then reviewed classified documents produced by the staff, and, after consultation with staff assistants, made his determination or judgment that particular information was, indeed, classified. There were indications that the witness considered his own recollection, institutional history, reports of staff members and classified documents in deciding whether or not particular information was classified.

The District Judge was persuaded that information, which might be sensitive to our national defense or to our relations with foreign nations, is not classsified until a classifying officer makes a conscious determination that the governmental interest in secrecy outweighs a general policy of disclosure and applies a lable of 'Top Secret' or 'Secret' or 'Confidential' to the information in question. The testimony of the deputy directors, with its imprecision and the generality of the considerations which they said underlaid their determinations seemed insufficient to persuade him that undisclosed individuals had gone through such conscious processes during the time of Marchetti's employment. It seemed to him that the deputy directors were making ad hoc classifications of material after having read the Marchetti-Marks manuscript, though he recognized that the deputy directors denied that they were doing any such thing.

Late in the trial, the United States offered a batch of documents, most of them bearing 'Top Secret' stamps and collectively containing information relating to the deletion items. Some of these documents dealt with the actual classification of certain information. When a document, for instance, specified that certain information relating to a particular program should be classified as 'Top Secret' while other information respecting that program should be classified as 'Secret', the Judge accepted the document as showing that someone had gone through the conscious process of deciding whether, and in what degree, particular information should be classified. On this basis the District Judge found that the information embodied in 26 of the 168 items was classified during the time of Marchetti's employment. As to the remainder of the 168 deletion items, however, he found the submitted documents of no persuasive value. He was of that opinion because he had been told that a document properly classified as 'Top Secret' may contain some bits of information which are not classifiable at all. His difficulty was compounded by the fact that many of the documents marked 'Top Secret' had been reproduced with all of their contents blocked out except for one paragraph, sentence or message relating to a deletion item. He reasoned that only the classifying officer could say what information in a particular document led him to classify the entire document 'Top Secret' and that a limited disclosure of something extracted from a document classified as 'Top Secret' did not establish classification of that information as 'Top Secret' or even as being classified in any degree. Recognizing that the deputy directors, at the very least, had testified that the disclosed information was classifiable, he still was of the view that the testimony and the documents in combination did not prove that the disclosed classifiable information had in fact been classified by the unidentified and possibly unidentifiable classifying officer. Though recognizing that some or much of the disclosed information, revealed in the deletion items, was 'sensitive', the District Judge concluded that the United States had not shown that the remaining 142 deletion items had been classified. He felt, in short, since reasonableness of classification was proscribed, as we held in Marchetti, appropriate recognition of the first amendment rights of Marchetti and of Marks required strict proof of classification which he found wanting under the standards developed at the trial.

When writing in Marchetti, we did not foresee the problems as they developed in the district court. We had not envisioned any problem of identifying classified information embodied in a document produced from the files of such an agency as the CIA and marked 'Top Secret', 'Secret' or 'Confidential'. Of course, a document containing the results of tests of highly secret equipment may contain an incidental reference to the weather on a given day at a designated place in the United States, but we foresaw no particular problem in separating the grain from such chaff. With our strictures against inquiry into the reasonableness of any classification, however, we perhaps misled the District Judge into the imposition upon the United States of an unreasonable and improper burden of proof of classification.

When the earlier case was before us, we had supposed that all information in a classified document in the possession of the CIA, except rather obvious chaff of the sort we have mentioned, should be held to be classified and not subject to disclosure. We were influenced in substantial part by the principle that executive decisions respecting the classifying of information are not subject to judicial review. See, e.g., EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1972). The October 1974 amendments ³ to the Freedom of Information Act introduced new considerations. Title 5, Section 552(b)(1) of the United States Code has been amended to provide for non-disclosure of matters that are '(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact...