Salisbury v. U.S., 81-1657

• Decision Date: 21 September 1982
• Docket Number: No. 81-1657,81-1657
• Citation: 690 F.2d 966,223 U.S.App.D.C. 243
• Parties: , 11 Fed. R. Evid. Serv. 1409 Harrison E. SALISBURY, Appellant, v. UNITED STATES of America, et al., Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 966

690 F.2d 966

223 U.S.App.D.C. 243, 11 Fed. R. Evid. Serv. 1409

Harrison E. SALISBURY, Appellant, v. UNITED STATES of America, et al., Appellee.

No. 81-1657.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 12, 1982.

Decided Sept. 21, 1982.

Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 80-00909).

Mark H. Lynch, Washington, D. C., with whom Susan W. Shaffer, Washington, D. C., was on the brief, for appellant.

Freddi Lipstein, Dept. of Justice, Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the brief was filed, and Leonard Schaitman, Dept. of Justice, Washington, D. C., were on the brief, for appellee.

Before ROBINSON, Chief Judge, McGOWAN, Senior Circuit Judge, and NORTHROP ^*, Senior District Judge for the District of Maryland.

Opinion for the Court filed by Senior Circuit Judge McGOWAN.

McGOWAN, Senior Circuit Judge:

Appellant Salisbury, a correspondent and editor with the New York Times brought suit in the District Court seeking the release of certain documents under the Freedom of Information Act. He also alleged, as a separate cause of action, that the National Security Agency (NSA) and the Secretary of Defense had violated his rights under the first and fourth amendments. As a remedy for the latter, he sought damages under the Federal Tort Claims Act and injunctive relief. In three separate orders, the District Court upheld the refusal of the NSA to release the disputed documents under FOIA, denied appellant's counsel the right to participate in in camera examination of documents, and dismissed the tort action. It is from these three orders that Salisbury appeals.

I

The National Security Agency, a separate agency within the Department of Defense, was created by presidential directive. Its purpose in part was

to obtain information from foreign electromagnetic signals and to provide reports derived from such information or data on a rapid response basis to national policymakers and the intelligence community of the United States Government.

Affidavit of Eugene F. Yeates, Chief, Office of Policy, NSA, J.A. at 17. In pursuing this mission, NSA monitors radio channels. Because of the large number of available circuits, however, the agency attempts to select for monitoring only those which can be expected to yield the highest proportion of foreign intelligence communications. Id. at 20. When the NSA selects a particular channel for monitoring, it picks up all communications carried over that link. S.Rep.No.755, 94th Cong., 2d Sess., Book III 741 (1976). As a result, the agency inevitably intercepts some personal communications.

After intercepting a series of communications, NSA processes them to reject materials not of foreign intelligence interest. One way in which the agency isolates materials of interest is by the use of

(l)ists of words and phrases, including the names of individuals and groups .... These lists are referred to as "watch lists" by NSA and the agencies requesting intelligence information from them .... The great majority of names on watch lists have always been foreign citizens and organizations.

Although NSA does not now target communications of American citizens, groups, or organizations for interception by placing their names on watch lists, other selection criteria are used which result in NSA's reviewing many communications to, from, or about an American .... The combination of this technology and the use of words to select communications of interest results in NSA analysts reviewing the international messages of American citizens, groups, and organizations for foreign intelligence.

Id. at 743, 741. Between the early 1960's and 1973, NSA did include the names of American citizens on its watch lists. Id. at 744-45. In addition, between 1945 and 1975, NSA and its predecessor agencies conducted a program called Operation Shamrock, in which commercial cable companies provided the agencies with copies of most international telegrams sent abroad from the United States. Id. at 765-76.

Appellant Salisbury has served the New York Times as a foreign correspondent and editor since 1949, and has used international communications media extensively, both as sender and as recipient of messages. Affidavit of Harrison E. Salisbury, J.A. at 54-57. He claims that learning of the NSA's intelligence activities has adversely affected his exercise of first amendment rights by rendering him unwilling to "include in (his) messages information which (he does) not want (his) own government to know or information which (his) government may pass on to its allies." Id. at 58.

Salisbury learned by means of Freedom of Information Act requests that the CIA and FBI maintained records pertaining to him, records that had been provided them by the NSA. The NSA, denying appellant access to these records, has indicated that "(e)ach of the NSA records being withheld ... is an intercepted foreign communication." Affidavit of Eugene F. Yeates, supra, J.A. at 22. Although the agency would not indicate the nature of the communications, that is, whether they were sent to Salisbury, were sent from him, or merely mentioned him, Salisbury, reasoning that he had sent many communications from locations of great intelligence interest, assumed that at least some of them were communications he had sent. As a result, he filed an administrative claim under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq. (1976), seeking damages of $10,000 to compensate him for alleged violations of his first and fourth amendment rights and of his common law right of privacy. He also sought an injunction barring the government from further interception of his communications. Upon exhausting his administrative remedies under both FOIA and FTCA, he brought suit in the District Court on April 10, 1980.

In the District Court, the government moved for summary judgment as to Salisbury's FOIA claim, contending that the disputed documents were properly classified and, hence, exempt from disclosure under FOIA exemption 1, 5 U.S.C. § 552(b)(1) (1976). J.A. at 11-15. Second, it moved for dismissal of Salisbury's claim for damages and equitable relief, asserting that without the disputed information, which it believed to be protected by the state secrets privilege, as well as exempt from disclosure under FOIA, Salisbury's suit could not proceed. Id. at 43. Third, in support of both state secrets and FOIA claims, the government sought leave to present for ex parte in camera examination several affidavits to support its contention that disclosure would threaten the national interest. Id. at 51. Appellants opposed all three motions and sought, in addition, to have his counsel participate in any in camera examination of documents the Court might resolve to conduct.

The District Court issued its decision in three separate orders. First, relying on exemption 1 of FOIA, the court upheld the decision of the agency to withhold the disputed records. Id. at 64-72. In so holding, the court relied heavily on an affidavit filed by the Chief of NSA's Office of Policy, Eugene F. Yeates.

In a second order, the court dismissed appellant's action for damages and equitable relief, id. at 77-78, finding that further litigation "would reveal highly classified information to the detriment of the nation's security interests." Id. at 78. The court refused to employ a presumption that NSA had intercepted appellant's messages, or to find as a fact such interception, as a litigating penalty upon the government for insisting upon its state secrets privilege.

In a third order, the court declined to permit Salisbury's counsel to participate in the in camera examination of classified affidavits submitted in support of the claims of privilege and FOIA exemption because of the sensitivity of the material, and the delay and ethical dilemmas that might attend such participation. Id. at 74-76.

Salisbury has appealed from all three of these rulings.

A. The Freedom of Information Act Claim

Under the Freedom of Information Act, judicial review of an agency's decision to withhold information is to be de novo, with the burden on the agency to justify its claim of exemption. 5 U.S.C. § 552(a)(4)(B) (1976). See Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). The legislative history of the Act, however, indicates that courts must "recognize that the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects (sic ) might occur as a result of public disclosure of a particular classified record." S.Rep.No. 1200, 93d Cong., 2d Sess. 12 (1974) (conference report).

Consequently, courts are to "accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." Id. See also Halperin v. CIA, 629 F.2d 144, 148 (D.C.Cir.1980) (Judges "lack the expertise necessary to second-guess such agency opinions in the typical national security FOIA case"; they must "not ... conduct a detailed inquiry to decide whether (they) agree( ) with the agency's opinions."). If the agency's affidavits describe the withheld information and the justification for withholding with reasonable specificity, demonstrating a logical connection between the information and the claimed exemption, and if the affidavits evidence neither bad faith on the part of the agency nor a conflict with the rest of the record, the agency is entitled to summary judgment. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); Allen v. Central Intelligence Agency, 636 F.2d 1287, 1291 (D.C.Cir.1980); Lesar v. United States Dept. of Justice, 636 F.2d 472, 481 (D.C.Cir.1980).

The NSA claims that the disputed records are exempt from mandatory disclosure under FOIA pursuant to exemption 1, 5 U.S.C. § 552(b)(1) (1976), which applies to matters that are

(1)(A)...