U.S. v. American Tel. & Tel. Co.
| Decision Date | 30 December 1976 |
| Docket Number | No. 76-1712,76-1712 |
| Citation | 551 F.2d 384,179 U.S.App.D.C. 198 |
| Parties | UNITED STATES of America v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY et al. Appeal of John E. MOSS, Member, United States House of Representatives. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
E. Barrett Prettyman, Jr., Washington, D. C., with whom Joseph M. Hassett, Jean S. Moore and Janet L. McDavid, Washington, D. C., were on the brief for appellant.
Rex E. Lee, Asst. Atty. Gen., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Thomas S. Martin, Special Asst. Atty. Gen., Leonard Schaitman and Neil H. Koslowe, Attys., Dept. of Justice, Washington D. C., were on the brief for appellee.
Nathaniel Hawthorne, Washington, D. C., entered an appearance for appellees American Telephone and Telegraph Co., and others.
Before LEVENTHAL, ROBINSON and WILKEY, Circuit Judges.
Opinion for the Court filed by Circuit Judge LEVENTHAL.
This unusual case involves a portentous clash between the executive and legislative branches, the executive branch asserting its authority to maintain tight control over information related to our national security, and the legislative branch asserting its authority to gather information necessary for the formulation of new legislation.
In the name of the United States, the Justice Department sued to enjoin the American Telephone and Telegraph Co. (AT&T) from complying with a subpoena of a subcommittee of the House of Representatives issued in the course of an investigation into warrantless "national security" wiretaps. Congressman Moss, chairman of the subcommittee, intervened on behalf of the House, the real defendant in interest since AT&T, while prepared to comply with the subpoena in the absence of a protective court order, has no stake in the controversy beyond knowing whether its legal obligation is to comply with the subpoena or not. The District Court issued the injunction requested by plaintiff and Chairman Moss appeals.
The case presents difficult problems, preliminary questions of jurisdiction and justiciability (application of the political question doctrine) and the ultimate issue on the merits of resolving or balancing the constitutional powers asserted by the legislative and executive branches.
In order to avoid a possibly unnecessary constitutional decision, we suggest the outlines of a possible settlement which may meet the mutual needs of the congressional and executive parties without requiring a judicial resolution of a head-on confrontation, and we remand without decision at this time in order to permit exploration of this solution by the parties, under District Court guidance if needed.
If the parties reach an impasse this will be reported to us by the District Court. We would then be confronted with the need to enter an order disposing of the appeal pending.
The controversy arose out of an investigation by the Subcommittee on Oversight and Investigations of the House Committee on Interstate and Foreign Commerce. The Subcommittee was interested in determining the nature and extent of warrantless wiretapping in the United States for asserted national security purposes. It was concerned with the possible abuse of that power and its effect on privacy and other interests of U.S. citizens, and with the possible need for limiting legislation.
The warrantless wiretaps which became the focus of this part of the investigation used facilities provided by AT&T upon its receipt from the FBI of "request" letters. Each request letter specified a target line to be tapped, identified by telephone number, address, or other numerical designation. The letter requested a "leased line" to carry the tapped communications from the target location to a designated monitoring station manned by federal agents.
On June 22, 1976, the Subcommittee authorized and the Committee Chairman issued a subpoena requiring the president of AT&T to turn over to the Subcommittee copies of all national security request letters sent to AT&T and its subsidiaries by the FBI as well as records of such taps prior to the time when the practice of sending such letters was initiated. After the subpoena was issued, AT&T stood ready to comply.
At this point the White House approached Subcommittee Chairman John Moss in search of an alternative arrangement meeting the Subcommittee's information needs. The basic thrust of the ensuing negotiations between the Subcommittee and the Justice Department was to substitute, for the request letters, expurgated copies of the backup memoranda upon which the Attorney General based his decision to authorize the warrantless taps. These memoranda, providing information on the purpose and nature of the surveillance, might have been more informative to Congress than the request letters, which merely contained numerical identification of the line to be tapped. The Justice Department agreed, at least informally and tentatively, to provide the Subcommittee staff expurgated copies of the backup memo pertaining to foreign intelligence taps, with all information which would identify the target replaced by generic description, such as "Middle Eastern diplomat." The negotiations came close to success, but broke down over the issue of verification by the Subcommittee of the accuracy of the executive's generic descriptions by inspection of a sample of the original memoranda.
The precise details of the negotiations deserve close attention, for they demonstrate the proximity of the parties to a workable compromise. The parties agreed that AT&T would provide the Subcommittee a list of dates of request letters from the FBI. The FBI would then segregate this inventory into two classes: domestic surveillances and foreign intelligence surveillances. 1 The Subcommittee agreed to an initial canvass of two years, selecting 1972 and 1975. For these years, the Subcommittee would be provided with the complete backup memos pertaining to domestic surveillances, with minor deletions only as necessary to shield ongoing investigations of particular sensitivity. The Subcommittee would select a sample of the foreign intelligence surveillances, for which it would have access at the FBI to copies of the backup memoranda, edited to delete identification of the target or sources. These would be identified only generically, including whether or not each was a United States citizen.
All documents were to be taken by the Subcommittee in executive session and kept secure. Under the rules of the House, 2 such material may only be released by vote of the Subcommittee, which may be overruled by a majority of the Committee, which similarly may be overruled by a majority of the full House. Under Rule XI § 2(e)(2) of the House any member of the House may have access to the documents, 3 but may not release any information therefrom except as provided above.
The sticking point in the negotiations came over the means of verifying the accuracy and candor of the classifications and generic descriptions. The Subcommittee proposed that three of its staff members select a subsample of the edited memoranda for verification. These would all be duly cleared for national security trustworthiness. (Two of the three persons designated for this task were formerly with the FBI or CIA.) The staff members would inspect the original memoranda at the FBI, but they would be able to take their notes back to the Subcommittee. The FBI would advise Chairman Moss of the sensitivity of the information in the notes, but the notes would be Subcommittee records subject to Rule XI § 2(e)(2).
The White House, through the Counsel to the President, Philip Buchen, rejected the Subcommittee's proposal. The White House offered to let Chairman Moss, rather than the Subcommittee staff, inspect the subsample of the unedited memos. This, in turn, was rejected by the Subcommittee. President Ford made the final executive offer in a letter to Chairman Moss on July 22, 1976. Its provisions for Subcommittee staff access to the edited backup memos at the FBI were the same as those requested by the Subcommittee. But if the staff had questions about the propriety of the classification as "foreign" or about the reasonableness of the generic descriptions of the targets and sources, the Subcommittee would have to raise these questions with the Attorney General. The Attorney General would review the edited and original memos, and either certify the accuracy of the edited version, or provide more information if he found the question well-founded. If the Subcommittee were still dissatisfied, it could appeal for similar review by the President. Thus, under the executive proposal, the Subcommittee could initiate a verification process, but in the end the Subcommittee would have to rely on certification of accuracy by the Executive. Chairman Moss rejected the President's proposal by letter of the same day.
While these negotiations were in progress, the return date of the subpoena had been extended to July 23, 1976. When the negotiations broke down over the verification question on July 22, President Ford instructed AT&T, "as an agent of the United States, to respectfully decline to comply with the Committee subpoena." 4 It appeared, however, that AT&T felt obligated to disregard these instructions and to comply with the subpoena the following day. The Justice Department therefore brought an action in the name of the United States on July 22, and obtained a temporary restraining order prohibiting AT&T from complying with the Subcommittee subpoena. Chairman Moss was allowed to intervene as a defendant. A hearing on the merits of the permanent injunction was consolidated with the hearing on a preliminary injunction set for July 28, 1976. Summary judgment in favor of the Executive was granted on July 30, 1976 and a permanent injunction against AT&T was entered.
The basis of the suit brought by the ...
To continue reading
Request your trial
-
Walker v. Cheney
...banc), in which a Senate committee sought enforcement of its subpoena to President Nixon for White House tapes, and United States v. AT & T, 551 F.2d 384 (D.C.Cir.1976), appeal after remand, 567 F.2d 121 (D.C.Cir.1977), in which the Executive Branch challenged a congressional subpoena for d......
-
U.S. House of Representatives v. Burwell
...had standing to sue in an official capacity to demand information from the Executive in furtherance of Congress's oversight role. 551 F.2d 384 (D.C.Cir.1976).12 The case presented a "portentous clash between the executive and legislative branches" over congressional subpoenas to AT & T for ......
-
Committee On Jud., U.S. House of Repres. v. Miers
...exists and there is no other impediment to invoking § 1331 subject matter jurisdiction here.9 Indeed, in United States v. AT & T, 551 F.2d 384 (D.C.Cir.1976) ("AT & T I"), a case similar to this one, the D.C. Circuit found subject matter jurisdiction pursuant to § 1331 owing to the "fun......
-
Comm. on the Judiciary of the U.S. House of Representatives v. McGahn, No. 19-5331
...to resolve a handful of interbranch information disputes beginning in the 1970s. See Committee Br. 17-20; United States v. AT&T , 551 F.2d 384, 391 (D.C. Cir. 1976) (" AT&T I "); Senate Select Comm. on Presidential Campaign Activities v. Nixon , 498 F.2d 725 (D.C. Cir. 1974) (" Senate Selec......
-
National Security and Access, a Structural Perspective
...to intrude upon the authority of the Executive in military and national security affairs.” (emphasis added)); United States v. AT&T, 551 F.2d 384, 392 (D.C. Cir. 1976) (observing that case law does “not establish judicial deference to executive determinations in the area of national securit......
-
The Political Remedies Doctrine
...does not authorize the wall construction).236. See id. at 22 (quoting Raines v. Byrd, 521 U.S. 833 (1997)).237. See United States v. AT&T, 551 F.2d 384, 390 (D.C. Cir. 1976) (explaining that the mere existence of a conflict between Congress and the President "does not preclude" a judicial d......
-
Contempt for Oversight and Investigation: Congressional Contemnors, the Grand Jury, and Constitutional Order
...See also Comm. on the Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53, 68–78 (D.D.C. 2008); United States v. AT&T, 551 F.2d 384, 391 (D.C. Cir. 1976). 42. Quinn v. United States, 349 U.S. 155, 160–61 (1955) (citations omitted). 43. See Comm. on the Judiciary v. McGahn,......
-
THE NECESSARY AND PROPER INVESTIGATORY POWER.
...interfere with a subpoena concerning a legitimate area of congressional investigation." United States v. American Tel. & Tel. Co., 551 F.2d 384, 391 (D.C. Cir. (338.) See supra note 324 (sources providing overview of some early investigations); cf. Michael Stern, Upcoming Supreme Court ......