Halperin v. National Sec. Council

• Decision Date: 18 May 1978
• Docket Number: Civ. A. No. 75-0675.
• Citation: 452 F. Supp. 47
• Parties: Morton H. HALPERIN, Plaintiff, v. NATIONAL SECURITY COUNCIL et al., Defendants.
• Court: U.S. District Court — District of Columbia

452 F. Supp. 47

Morton H. HALPERIN, Plaintiff, v. NATIONAL SECURITY COUNCIL et al., Defendants.

Civ. A. No. 75-0675.

United States District Court, District of Columbia, Civil Division.

May 18, 1978.

Mark H. Lynch, American Civil Liberties Union Foundation, Washington, D. C., for plaintiff.

Earl J. Silbert, U. S. Atty., Barbara Allen Babcock, Asst. U. S. Atty., Lynne K. Zusman, Dept. of Justice, Washington, D. C., for defendants.

MEMORANDUM

OBERDORFER, District Judge.

Plaintiff, a former official of the National Security Council (NSC), brought this action under the Freedom of Information Act¹ against NSC and named defendants to compel public release of two lists of NSC documents.

One of the lists whose release is sought is a compilation of the number and exact title of each National Security Study Memoranda (NSSM) issued since January 20, 1969. The other is a similar compilation with respect to National Security Divisional Memoranda (NSDM).

The plaintiff served at NSC when it originated this system of Presidential decision-making by memorandum and had a major role in developing it. The primary function of these memoranda is to gather information and recommendations for the President of the United States on current foreign policy and national defense issues and to record and communicate the President's decision to responsible officials. Prior to filing this action plaintiff had requested defendants to furnish to him a list of the titles of memoranda prepared during and subsequent to his tenure at NSC. No lists had been prepared contemporaneously with the memoranda. In response to the request, however, NSC prepared such lists and, then, perceiving security considerations with respect to them, classified each as "Secret," pursuant to Executive Order number 11652, dated March 8, 1972.² In addition, some of the individual titles on the lists were also classified as "Secret."

Defendants advised plaintiff that release of the lists, and especially the individually classified titles, would reveal sensitive information as to the timing and focus of United States foreign policy, which could "reasonably be expected to cause serious damage to the national security." Accordingly, defendants refused to release the lists so classified. Plaintiff appealed this decision administratively, which appeal was denied by Henry Kissinger, then Assistant to the President for National Security Affairs. Plaintiff then initiated this action. He seeks in this suit production of the two lists, qua lists, and not the underlying memoranda.

Defendants have moved for summary judgment, asserting that there are no material facts in dispute and that the lists are specifically exempted in full from disclosure, unclassified titles included, by §§ 552(b)(1) and (b)(5) of FOIA. 5 U.S.C. § 552(b) exempts from release matters that are:

(1)(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 properly classified pursuant to such Executive order;

. . . . .

(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency . . ..

Plaintiff in turn has moved for partial summary judgment, asserting that:

1. these titles are not part of the deliberative process, but rather represent final agency determinations on either the subject to be studied or the conclusions to be drawn from the studies, and thus are not within the scope of the (b)(5) exemption, and

2. the titles on the two lists which are not individually classified are not within the (b)(1) exemption and must be released pursuant to the directive of the last paragraph of § 552(b):

Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.

Plaintiff has also moved for a release of the lists to him under a protective order to enable him to frame his arguments regarding the releasability of the unclassified titles and the lack of proper classification of the titles which are individually classified. Plaintiff asserts that he is an expert in national security and suggests that the Court avail itself of his expertise as to whether disclosure of the disputed titles could reasonably be expected to cause damage to national security.

Plaintiff has further moved for an in camera hearing so that he can furnish to the Court his informed opinion thus developed about the effect of the release of the lists on United States foreign policy and defense interests, without violating the "Secret" classification of the lists.

The Court is of the opinion that both lists, including, as they do, references to both classified and unclassified titles, are within the (b)(1) exemption of FOIA and that the lists as such are fully exempt from disclosure. Accordingly, only the (b)(1) exemption issue will be discussed.

In support of their summary judgment motion, filed in July 1976, defendants offered affidavits by Jeanne Davis, the Staff Secretary of the NSC, Philip Habib, the Under Secretary of State for Political Affairs, and Richard Lehman, Deputy Director of Intelligence for the CIA. Each of these officials stated reasons for considering the lists to be sensitive and each expressed the opinion that disclosure of the lists would be harmful to the foreign policy and national defense interests of the United States.

For example, by affidavit of July 1975, Ms. Davis stated in support of her conclusion that release of the lists could reasonably be expected to cause serious damage to the national security that the lists would, inter alia:

1. reveal, at any given time, the flow of foreign policy thinking and areas of interest, concern, and attention at the very highest level of Government of the United States,

2. indicate those policy matters on which a difference of opinion existed at high levels, and

3. identify the individual documents which would be of greatest interest to a foreign government, thereby enabling it to concentrate its intelligence gathering process.

In addition, with respect to the individual unclassified titles included on the lists, Davis stated by affidavits of November 1975 and February 1976 that release of these titles "could reasonably be expected to damage our national security."³ As justification for this conclusion, Davis stated in her November 13, 1975 affidavit that:

Access to the unclassified titles in their totality would . . . enable a foreign intelligence analyst to identify the kinds of issues of grave concern to the United States and the way in which this government reacts to world events, and also to gain unique insights into the method by which issues of this kind are identified, studied and resolved by the President.

Habib and Lehman later added several additional justifications for the withholding of the full contents of the two lists, including the unclassified titles. Habib stated by affidavit of July 1, 1976, that the timing and sequence of the titles would have significant intelligence value to foreign powers. Lehman stated by affidavit of June 30, 1976, that the lists would indicate to a foreign intelligence analyst that the United States had likely not formulated a position on a given issue, and that even an unclassified title on the list could lead to rumors, "whispering campaigns," and even fraudulent memoranda which, because of the classification of the memoranda themselves, would be almost impossible for the United States to refute.

More recently, on the suggestion of the Court, Dr. Zbigniew Brzezinski, Assistant to the President for National Security Affairs, has reviewed the two lists of titles to determine whether time and events had altered these earlier conclusions regarding classification of the lists in full. By affidavit of December 8, 1977, Dr. Brzezinski restated many of the points previously made by Davis, Habib, and Lehman in support of the classification decision. Dr. Brzezinski added that in his opinion:

disclosure of these lists would provide other countries either

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