CENTRAL INTELLIGENCE AGENCY AND WILLIAM J. CASEY, DIRECTOR OF
CENTRAL INTELLIGENCE, PETITIONERS V. JOHN CARY SIMS AND SIDNEY M.
WOLFE

   No. 83-1075

   In the Supreme Court of the United States

   October Term, 1983

   The Solicitor General, on behalf of the Central Intelligence Agency
and the Director of Central Intelligence, petitions for a writ of
certiorari to review the judgment of the United States Court of
Appeals for the District of Columbia Circuit in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the District of Columbia Circuit

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutory provisions involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D
   Appendix E
   Appendix F
   Appendix G
   Appendix H

                            OPINIONS BELOW

   The opinion of the court of appeals (App., infra, 1a-16a) is
reported at 709 F2.d 95.  The opinions and order of the district court
(App., infra, 21a-34a) are not reported.  An earlier opinion of the
court of appeals (App., infra, 35a-65a) is reported at 642 F.2d 562.
One of the earlier opinions of the district court (App., infra,
66a-72a) is reported at 479 F. Supp. 84;  the other earlier opinion of
the district court (App., infra, 73a-97a) is not reported.

                             JURISDICTION

   The judgment of the court of appeals was entered on June 10, 1983
(App., infra, 19a-20a).  A petition for rehearing was denied on August
17, 1983 (App., infra, 17a-18a).  On November 9, 1983, the Chief
Justice extended the time in which to file a petition for a writ of
certiorari to December 15, 1983, and on December 5, 1983, the Chief
Justice further extended the time in which to file a petition for a
writ of certiorari to December 29, 1983.  The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

                     STATUTORY PROVISIONS INVOLVED

   Portions of the Freedom of Information Act, 5 U.S.C. 552, the
National Security Act of 1947, 50 U.S.C. 401 et seq., and the Central
Intelligence Agency Act of 1949, 50 U.S.C. 403a et seq., are
reproduced at App., infra, 98a-99a.

                          QUESTION PRESENTED

   Whether the Central Intelligence Agency must disclose the identity
of a source of intelligence information under the Freedom of
Information Act, despite Exemption 3 of the FOIA and Section 102(d)(3)
of the National Security Act of 1947, if the Agency cannot demonstrate
that it was necessary to guarantee confidentiality in order to obtain
the kind of information that the source supplied.

                               STATEMENT

   1. Respondents, invoking the Freedom of Information Act (FOIA), 5
U.S.C. 552, filed a request with the Central Intelligence Agency
seeking certain information about a CIA project known as MKULTRA.
MKULTRA was initiated in the 1950's in response to concern about
foreign nations' "brainwashing" techniques (App., infra, 73a).
MKULTRA "involved research into 'chemical, biological and radiological
materials capable of employment in clandestine operations to control
human behavior'" (id. at 21a;  footnote and citation omitted).  This
research, funded by the CIA, was conducted by a large number of
private scientists, in the United States and abroad, affiliated with
universities, research foundations, and similar institutions (id. at
66a, 89a).  At least 80 institutions and 185 private researchers
participated (id. at 36a).  The nature of MKULTRA, including
allegations of abuses connected with it, was explored in 1963 in a
report from the Inspector General of the CIA to the Director of
Central Intelligence (C.A. App. 118-145) and subsequently by
congressional committees and a Presidential commission.  See S. Rep.
94-755, 94th Cong., 2d Sess., Bk. I, at 389-392 (1976);  Report to the
President by the Commission on CIA Activities Within the United
States, 226 (June 1975).  See also Human Drug Testing by the CIA,
1977:  Hearings on S. 1893 Before the Subcomm. on Health and
Scientific Research of the Senate Comm. on Human Resources, 95th
Cong., 1st Sess. (1977);  Project MKULTRA, the CIA's Program of
Research in Behavioral Modification:  Joint Hearing Before the Select
Comm. on Intelligence and the Subcomm. on Health and Scientific
Research of the Senate Comm. on Human Resources, 95th Cong., 1st Sess.
(1977).

   Respondents sought the grant proposals and contracts awarded under
the MKULTRA program and the names of the institutions and individuals
that performed research.  The CIA made available to respondents all of
the grant proposals and contracts.  The CIA also contacted the
institutions that had performed research, and approximately two-thirds
of them agreed to allow their identities to be disclosed.  The Agency
accordingly disclosed them to respondents.  App., infra, 39a, 73a-74a.

   The CIA cited Exemptions 3 and 6 of the FOIA, 5 U.S.C. 552(b)(3)
and (6), as the bases for not releasing the names of the other
institutions and the individual researchers.  Only the Exemption 3
claim is now at issue.  Exemption 3 of the FOIA provides that an
agency need not disclose "matters that are * * * specifically exempted
from disclosure by statute * * * provided that such statute * * *
refers to particular types of matters to be withheld" (5 U.S.C.
552(b)(3)(B)).  The statute on which the CIA relied is Section
102(d)(3) of the National Security Act of 1947, 50 U.S.C. 403(d)(3),
which provides in part:

      (T)he Director of Central Intelligence shall be responsible for
      protecting intelligence sources and methods from unauthorized
      disclosure * * *.

   2. Respondents then brought this action under the FOIA in the
United States District Court for the District of Columbia.  See 5
U.S.C. 552(a)(4)(B).  They sought to compel disclosure of the names
withheld by the CIA.  The district court ordered disclosure of these
names, apparently reasoning that the term "intelligence sources" in 50
U.S.C. 403(d)(3) did not include the MKULTRA researchers, or if it
did, that Section 403(d)(3) was not specific enough to qualify as an
Exemption 3 statute (see App., infra, 77a-79a).

   The court of appeals vacated the district court's order and
remanded for reconsideration (App., infra, 35a-65a).  The court
observed that it had consistently held that Section 403(d)(3)
"qualifies as a withholding statute under Exemption 3" (App., infra,
44a).  The court also noted that in its previous decisions it had
assumed that the phrase "intelligence sources and methods" has "a
plain meaning" (ibid.).  But upon further consideration of the
"relevant statutory enactments" (see id. at 47a) -- which the court
identified as the FOIA, the National Security Act of 1947, and the
Central Intelligence Agency Act of 1949, 50 U.S.C. 403a et seq.,
(App., infra, 47a) -- the court concluded that the phrase
"intelligence sources and methods" is in fact "ambiguous" (id. at 49a)
and must be interpreted in a way that reflects "Congress' sensitivity
to the need for discrimination in identifying particular types of
matters exempted from disclosure" (id. at 47a).

   The court of appeals acknowledged that the CIA'S proposed
definition of "intelligence sources" -- essentially, individuals, or
entities that provide intelligence information (see App., infra, 46a)
-- was a supportable interpretation of the phrase.  In fact, the court
remarked that the agency's definition was of "equal plausibility" with
the definition that the court attributed to respondents -- "that
persons are * * * protected intelligence sources only if nondisclosure
of their identities would * * * be justifi(ed) on national security
grounds" (id. at 49a).  But instead of accepting either of these
definitions the court decided that "(a)nalysis should * * * focus on
the practical necessity of secrecy * * * (and should) avoid an
overbroad discretionary standard" (id. at 50a).  The court then
concluded (ibid.):

      (A)n "intelligence source" is a person or institution that
      provides, has provided, or has been engaged to provide the CIA
      with information of a kind the Agency needs to perform its
      intelligence function effectively, yet could not reasonably
      expect to obtain without guaranteeing the confidentiality of
      those who provide it.

   3. On remand, the district court specifically rejected respondents'
contention that the MKULTRA research was not "needed to perform the
CIA'S intelligence function" (App., infra, 22a).  The court explained
(id. at 22a-23a):  "In view of the agency's concern that potential
foreign enemies could be engaged in similar research and the desire to
take effective countermeasures, * * * (the Agency) could reasonably
determine that this research was needed for its intelligence
function."

   The district court accordingly concluded that the "crucial issue"
was the application of the court of appeals' requirement that the CIA
show that it could not have reasonably expected to obtain the
information supplied by the sources in issue without guaranteeing
confidentiality to them (App., infra, 23a).  The court acknowledged
that the Agency considered the relationships between it and the
MKULTRA researchers to be confidential (ibid.).  The court further
noted that "(f)or understandable reasons, the Agency wished its
interest in this subject matter kept secret, and feared that
disclosure would jeopardize its ability to continue its research" (id.
at 24a).  But the court ruled that this was not sufficient to satisfy
the court of appeals' test because "the chief desire for
confidentiality was on the part of the CIA. * * * (C)onfidentiality
was normally guaranteed * * * solely to protect the CIA" (ibid.).

   After reviewing the Agency's submissions about particular cases,
the district court noted that some of the researchers had sought, and
received, express promises of confidentiality from the Agency.  The
court ruled that the identities of these researchers need not be
disclosed.  App., infra, 26a.  In total, the court ordered the
disclosure of the names of about half of the researchers and all of
the institutions that had not already been revealed (id. at 21a-34a).

   4. Both sides appealed, and a divided panel of the court of appeals
reversed the district court's "determination regarding which of the
individual researchers satisfy the 'need-for-confidentiality' portion
of the definition of 'intelligence source' promulgated in" the court
of appeals' earlier opinion.  The court affirmed the district court's
ruling in other respects.  App., infra, 11a.

   The court of appeals peremptorily rejected the Agency's suggestion
that it reconsider the portion of the definition requiring the Agency
to show that it had to guarantee confidentiality in order to obtain
the information supplied by a source (App., infra, 4a).  Instead, the
court of appeals criticized the district court for not following this
aspect of the definition closely enough.  The court of appeals
remarked that "the (district) court's attention to questions of this
order was deflected by its interest in whether the agency had, in
fact, promised confidentiality to individual researchers" (id. at 5a).
 The court held that the district court's decision automatically to
exempt from disclosure those researchers to whom the CIA had promised
confidentiality was erroneous:  "Proof that the CIA did or did not
make promises of secrecy (either express or tacit) to specific
informants * * * (cannot) be dispositive of the question whether a
given informant qualifies as an 'intelligence source'" (id. at 6a).

   Specifically, the court of appeals ruled that even an intelligence
source who received an express promise of confidentiality would have
to be revealed if the source requested such a promise only because he
was "unreasonably and atypically leery of providing the agency with
innocuous information" (App., infra, 6a).  The court reasoned that "if
the agency readily and openly could have obtained, from other sources,
data of the sort (such a source) provided, he would not constitute an
'intelligence source'" (ibid.; footnote omitted).  The court also
remarked that if the Agency could refuse to disclose the identities of
all sources of intelligence that requested confidentiality, it "would
(be) * * * easy for the agency to seek shelter in exemption 3 by
simply 'suggesting' to all of the persons with whom it deals that they
sign a form expressing their desire for secrecy" (id. at 6a n.7).

   Judge Bork wrote a separate opinion, concurring in part and
dissenting in part (App., infra, 12a-16a).  He dissented from the
majority's conclusion that the FOIA sometimes requires the CIA to
break a promise of confidentiality it has given to an intelligence
source.  Judge Bork stated (id. at 13a-14a):

      Many persons who expect pledges of confidentiality to be honored
      will be shocked to learn, long after they give information in
      return for such a promise, that their identities will be
      disclosed. * * * (I)n this very case, retrospective application
      of (the majority's definition) * * * may be profoundly unjust.
      It will certainly be so if it results in the disclosure of the
      identities of * * * researchers who fully, and justifiably,
      expected the government to keep its commitment and protect them
      from the wide range of dangers that may have concerned them when
      they insisted on confidentiality.  This is not an honorable way
      for the government of the United States to behave, and the
      dishonor is in no way lessened because it is mandated by a court
      of the United States.

   Judge Bork also urged that by authorizing courts to force the CIA
to break its promises of confidentiality, the majority's approach
"produces pernicious results. * * * Because of the ever-present
possibility of a future breach of trust ordered by the judiciary under
the vague standard laid down today, the CIA will probably lose many
future sources of valuable intelligence" (App., infra, 13a-14a).
Judge Bork reasoned that under the court of appeals' definition of
"intelligence sources," "individuals who give information to the CIA
on the understanding that their names will be kept secret cannot rely
on the promise of confidentiality if the information turns out to be
the sort the CIA can get elsewhere without promising secrecy,
something the sources of the information will often not be in a
position to know.  There is, moreover, no guarantee that a judge,
examining the situation years later and deciding on the basis of a
restricted record, will come to an accurate conclusion" (id. at 13a).
Judge Bork then concluded (ibid.):

      The CIA and those who cooperate with it need and are entitled to
      firm rules that can be known in advance rather than vague
      standards whose application to particular circumstances will
      always be subject to judicial second-guessing.  Our national
      interest, which is expressed in the authority to keep
      intelligence sources and methods confidential, requires no less.

   Judge Bork also criticized other aspects of the court of appeals'
definition of "intelligence sources." Judge Bork urged that there is
"no reason to think that section 403(d)(3) was meant to protect
sources of information only if secrecy was needed in order to obtain
the information." Specifically, Judge Bork explained, "(t)he mere fact
that the CIA pursues certain inquiries tells our adversaries much that
there is no reason to think Congress intended them to know." He
reasoned that "(o)ne need not be an expert in intelligence work to
know that it is often possible to deduce what a person is doing,
thinking, or planning by knowing what question he is asking or what
information he is gathering.  That is true even when the answers and
information are publicly available." App., infra, 15a.

   The court of appeals denied the CIA's petition for rehearing and
suggestion of rehearing en banc.  Judges Wilkey, Bork, and Scalia
voted in favor of rehearing en banc.  App., infra, 17a-18a.

                   REASONS FOR GRANTING THE PETITION

   The court of appeals' definition of "intelligence sources" reflects
an abstract and unrealistic approach that fails to appreciate the
extraordinary importance of protecting the identities of those who
provide intelligence information to the CIA and the CIA's many
legitimate reasons for maintaining the confidentiality of such
sources.  The court of appeals would require the CIA to reveal its
sources of intelligence in many instances in which such disclosures
would seriously impair the Agency's ability to perform its mission.
For example, the court of appeals' definition would require the
Agency, in certain circumstances, to betray explicit promises of
confidentiality;  to disclose the public sources it is exploiting,
even if doing so will reveal the nature of highly sensitive CIA
investigations and projects;  and possibly to disclose the identities
of even very sensitive sources, if those sources also provide
information that the CIA could have obtained without promising
confidentiality.

   Even apart from the intelligence sources that would actually be
compromised because of the court of appeals' definition, that
definition would create great uncertainty about the Agency's ability
to protect sources and to promise protection to potential sources.
Such uncertainty itself would have serious practical effects on the
Agency's ability to gather and analyze intelligence.  "The Government
has a compelling interest in protecting both 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." Snepp v. United States, 444 U.S. 507, 509 n.3
(1980), quoted in Haig v. Agee, 453 U.S. 280, 307 (1981) (emphasis
added).  For these reasons, the court of appeals' definition threatens
to cause significant practical harm to the nation's intelligence
operations.

   The court of appeals' definition is also wholly without foundation
in the law.  The National Security Act makes the Director of Central
Intelligence responsible for maintaining the secrecy of "intelligence
sources." That term should be given its plain meaning -- sources of
intelligence.  That is, the Director of Central Intelligence is
responsible for protecting all sources of information in which the CIA
is legitimately interested.

   There is no basis for the court of appeals' more restrictive
definition.  The court appears to have relied on what it considered to
be the pro-disclosure policies of the FOIA instead of interpreting the
National Security Act of 1947 -- a statute passed in a different era,
for different purposes, by a Congress that was concerned to assure the
secrecy of the very kinds of matters that the court of appeals would
now make public.  Especially because any party seeking CIA records can
take advantage of the court of appeals' definition by bringing suit in
the District of Columbia Circuit (see 5 U.S.C. 552(a)(4)(B)), further
review is warranted.

   1. a. The court of appeals' approach would require the government
to disclose its intelligence sources in many circumstances in which it
is entirely clear that disclosure will interfere with the Agency's
ability to carry out its mission.  Perhaps the most egregious example
is the one explicitly avowed by the court of appeals in its second
opinion.  As that opinion states, the court of appeals' definition
would require the CIA to betray an express promise of confidentiality
if a court determines, after the fact, that the Agency could have
obtained the same type of information without giving such a promise --
or, in the court of appeals' words, if a court decides that the
intelligence source to whom the promise was given sought the promise
only because he was "unreasonably and atypically leery" of cooperating
with the CIA (App., infra, 6a).

   It is readily apparent that if the CIA is forced to break promises
of confidentiality, its ability to recruit intelligence sources will
be impaired.  This will be true even if promises are broken only to
sources that a judge decides were "unreasonably and atypically leery"
about cooperating with the CIA.  A person who decides to cooperate
with the CIA by becoming a source of intelligence often incurs a
substantial risk;  if his cooperation becomes known, he may face not
only great embarrassment but far more severe consequences.  See Haig
v. Agee, 453 U.S. at 285 & n.7.  Consequently, in order to induce
persons to cooperate, the CIA frequently must provide as absolute an
assurance of confidentiality as it possibly can.  /1/ "The continued
availability of * * * (intelligence) sources depends upon the CIA's
ability to guarantee the security of information that might compromise
them and even endanger (their) personal safety" (Snepp v. United
States, 444 U.S. at 512).

   Few things are likely to have as devastating an impact on the
Agency's ability to recruit intelligence sources as the perception
that the Agency cannot keep its promises because a court may someday
order it to break them.  Many potential intelligence sources --
especially those who are not American citizens -- are likely to
perceive courts as unpredictable institutions that are influenced by
concerns that have little in common with the world in which the
potential source and his CIA contact must operate.  A potential source
is also likely to realize that a court's decision whether to reveal
his cooperation with the Agency may occur well in the future, at a
time when the source's concern for confidentiality may seem less
understandable to everyone except the source himself.

   It will certainly not reassure a potential intelligence source to
learn that a court will order his identity revealed only if it
determines that he was "atypically or unreasonably leery" and that the
Agency could have obtained the same information from a public source.
An intelligence source will "not be concerned with the underlying
rationale for disclosure of" his cooperation with the CIA if his
cooperation was secured "under assurances of confidentiality"
(Baldrige v. Shapiro, 455 U.S. 345, 361 (1982)).  Moreover, a court's
determination whether an intelligence source will be harmed if his
identity is revealed will often require complex political, historical,
and psychological judgments, sometimes about societies very different
from our own.  /2/ There is no reason for anyone -- especially a
potential intelligence source whose life may be at stake -- to have
great confidence in a court's ability to make those judgments
correctly.

   For several reasons, it is no answer to say that even under the
court of appeals' definition, few courts are likely actually to order
the government to breach an express promise or otherwise to disclose a
sensitive intelligence source.  First, the court of appeals' second
opinion shows that it is entirely serious about ordering the
disclosure of intelligence sources, even in the extreme case in which
there has been an express promise of confidentiality.  And, as we have
noted (page 11 note 2, supra), a district court applying the court of
appeals' definition has already ordered the disclosure of certain
foreign intelligence sources.

   More important, there is no question that the court of appeals'
definition greatly increases the likelihood of a court-ordered
disclosure;  and the possibility of such a disclosure alone can have
extremely damaging effects, because it gives rise to the perception
that the CIA cannot be trusted to keep a source's identity secret.  As
this Court has recognized in both the intelligence area and other
contexts, what is crucial is not only whether the government has in
fact betrayed a confidence but "the appearance that confidentiality
ha(s) been breached" or might be breached (Baldrige v. Shapiro, 455
U.S. at 361 n.17 (emphasis in original)).  "An uncertain privilege, or
one which purports to be certain but results in widely varying
applications by the courts, is little better than no privilege at all"
(Upjohn Co. v. United States, 449 U.S. 383, 393 (1981)).  This is
especially true in the area of intelligence gathering, where the risks
are enormous.  By creating the appearance that the CIA cannot protect
its sources -- and by making it clear that the Agency will sometimes
be required to breach even an explicit promise of confidentiality --
the court of appeals' opinion creates a serious potential threat to
the CIA's ability to perform the important task assigned to it by
Congress.

   b. Even if all of these concerns were unjustified -- even if the
court of appeals' definition had no effect on the Agency's ability to
recruit intelligence sources -- that definition would still threaten
serious potential harm to the Agency's interests.  That is because --
as Judge Bork pointed out -- the court of appeals' definition
explicitly requires the Agency to reveal any public sources of
intelligence, since a guarantee of confidentiality is not needed to
obtain information from a public source.

   Disclosures of the public sources that the Agency is exploiting can
damage the Agency in obvious ways.  As Judge Bork explained, another
government can learn a great deal about "what subjects (are) of
interest to the CIA" by examining the public sources of information
that the Agency is using:

      One need not be an expert in intelligence work to know that it
      is often possible to deduce what a person is doing, thinking, or
      planning by knowing what question he is asking or what
      information he is gathering.  That is true even when the answers
      and information are publicly available.  The mere fact that the
      CIA pursues certain inquiries tells our adversaries much that
      there is no reason to think Congress intended them to know.

   App., infra, 15a.

   The facts of this case themselves suggest an example.  When the CIA
decided to investigate "brainwashing" and the countermeasures that
might be taken, it might well have turned to sources, such as journals
and ongoing research projects, that are available to the public.  But
a foreign government that learned the sources that the Agency was
consulting would have been able to infer both the general nature of
the CIA's project and the directions that its research was taking.

   Similarly, the court of appeals, in its first opinion, suggested
that the excessive breadth of the CIA's proposed definition of
"intelligence sources" was revealed by the Agency's acknowledgment
that its definition would "apply even to periodicals -- including
Pravda and the New York Times -- from which (the Agency) culls
information that informs its view of foreign nations and their policy
intentions" (App., infra, 46a).  But the disclosure that the CIA
consults Pravda and the New York Times is innocuous not because those
periodicals are publicly available but because it is the disclosure of
a fact -- the fact that the Agency consults these newspapers -- that
is already commonly assumed to be true.  An obscure Eastern European
technical journal might also be available to members of the public;
but disclosure of the fact that the CIA subscribes to that journal
could easily thwart the CIA's efforts to exploit its value as an
intelligence source.  /3/

   In this respect, as well, the court of appeals' definition is
harmful not only because it will force certain disclosures but because
of the prospective effect it will have on the CIA's operations.  If
the Agency knows that it will be required to reveal its sources of
public information in response to a proper FOIA request, it can be
expected to alter its techniques so as to reduce the damage that such
a disclosure might cause.  In this way, the court of appeals'
definition will force the CIA to depart from what it considers the
best use of "intelligence sources and methods" out of concern that
some of those sources and methods might become public.  This is
precisely what Congress was seeking to avoid when it authorized the
Director of Central Intelligence to maintain the secrecy of
intelligence sources and methods.

   c. Finally, the court of appeals apparently failed to recognize
that many intelligence sources will provide the CIA with both highly
sensitive information -- of a kind that would never be supplied
without a promise of confidentiality -- and public or "innocuous"
information that the Agency could have obtained elsewhere without
guaranteeing secrecy.  For example, a source in a foreign nation might
supply, in addition to much sensitive information, a report of a crop
failure that American journalists also learned about and reported in
newspapers.  If an FOIA request were then filed for all sources of
information about the crop failure, the court of appeals' definition
might be interpreted to require the Agency to disclose its
relationship with the sensitive foreign source -- even though that
disclosure would be likely to damage both the Agency and the source.

   A district court applying the court of appeals' definition has
recently interpreted it in precisely this way (Fitzgibbon v. CIA,
Civil Action No. 79-0956 (D.D.C. Nov. 10, 1983), slip op. 23 n.35,
motion for reconsideration pending):

      Under (the court of appeals' definition), a document reporting
      on a conversation between a CIA agent and a source on a wholly
      innocuous subject would not be protected even if the source is a
      highly placed official of a government hostile to the United
      States.  Because of its innocuousness, the information
      presumably could have been obtained from any number of
      individuals without a promise of confidentiality * * *.

   While we do not acquiesce in this interpretation of the court of
appeals' opinion, the opinion is clearly susceptible of such a
reading;  obviously, even a possibility that such disclosures might
occur would seriously damage the government's ability to gather
intelligence.

   2. a. The court of appeals' definition is also wholly without
foundation in the law.  The court did not appear to deny that the
MKULTRA researchers were, literally, sources of intelligence;  the
district court specifically ruled that the Agency "could reasonably
determine that (the MKULTRA) research was needed for its intelligence
function" (App., infra, 22a-23a), and the court of appeals did not
question this ruling.  Thus, the MKULTRA researchers were
"intelligence sources" within the literal meaning of that term.

   That should have been the end of the inquiry.  50 U.S.C. 403(d)(3)
protects "intelligence sources and methods from unauthorized
disclosure." There is no reason to believe that Congress meant these
words to have something other than their plain meaning -- that all
sources of intelligence are protected from disclosure.  /4/ Congress
did not say -- as the court of appeals would suggest -- that the
Director of Central Intelligence is authorized to protect intelligence
sources only if such protection is needed to obtain information that
otherwise could not be obtained.  Nor did Congress say that only
confidential or nonpublic intelligence sources are protected.  Cf. 5
U.S.C. 552(b)(7)(D);  5 U.S.C. 552a(k)(2) and (5).  Congress simply
protected all sources of intelligence.

   In fact, the legislative history of Section 403(d)(3) shows that
Congress was specifically made aware of the kinds of intelligence
sources that the court of appeals' definition would require to be
disclosed, and Congress did not exclude such sources from the
protection of Section 403(d)(3).  General Vandenberg, who had been
Director of the Central Intelligence Group, the CIA's predecessor (see
11 Fed. Reg. 1337 (1946)), explained to a Senate committee considering
the bill that became the National Security Act that "roughly 80
percent of intelligence should normally be based" on "the great open
sources of information * * * such things as books, magazines,
technical and scientific surveys, photographs, commercial analyses,
newspapers, and radio broadcasts, and general information from people
with a knowledge of affairs abroad." National Defense Establishment:
Hearings on S. 758 Before the Senate Comm. on Armed Services, 80th
Cong., 1st Sess., Pt. 3, 492 (1947).  Indeed, General Vandenberg
asserted that this kind of intelligence had been neglected before
World War II and urged that it be a principal concern of the post-war
agency (ibid.).  Thus, when Congress gave the Director of Central
Intelligence unequivocal authority to "protect() intelligence sources
and methods from unauthorized disclosure," it had previously been
informed by the Director's predecessor that the great preponderance of
intelligence sources would be public sources.  In these circumstances,
Congress must have intended the Director's authority to extend to
public sources.

   Similarly, Admiral Inglis, then Chief of Naval Intelligence,
testified in executive session hearings that were only recently
declassified (National Security Act of 1947:  Hearings on H.R. 2319
Before the House Comm. on Expenditures in the Executive Departments,
80th Cong., 1st Sess. (1947)), that intelligence agents in foreign
countries are often used to "confirm or not what we have deduced from
* * * Russian propaganda broadcasts" (id. at 63).  Thus, Congress,
unlike the court of appeals, must have recognized that highly secret
intelligence sources will sometimes also report information that the
CIA can obtain, or has obtained, from open sources.  It is
inconceivable that Congress, after having received Admiral Inglis's
testimony, would have decided to deny the Director of Central
Intelligence the authority to protect agents who function in this way.

   b. The court of appeals' rationale for its restrictive definition
of "intelligence sources" is unclear.  The court appeared to believe
that its definition was "functional" and "focus(ed) on the practical
necessity of secrecy" (App., infra, 50a).  But as we have shown -- and
as Congress was made aware -- secrecy can be a "practical necessity"
in many circumstances in which the court of appeals would order
disclosure.  The court of appeals' implicit premises -- that the only
reason to maintain the secrecy of a source is to ensure that it will
continue to provide information, and that it is therefore unnecessary
to protect a source if the information it supplies is available
elsewhere -- are simply incorrect.  Secrecy in the intelligence area
has many other functions.

   The court of appeals also suggested that 50 U.S.C. 403g was
relevant to determining the scope of Section 403(d)(3).  Section 403g
exempts the CIA from "the provisions of any * * * law which require(s)
the publication or disclosure of the organization, functions, names,
official titles, salaries, or numbers of personnel employed by the
Agency * * *." See App., infra, 99a.  But Section 403g deals only with
employees of the CIA, and many of the most sensitive sources are not
Agency employees.  Thus, it cannot plausibly be suggested that Section
403g exhausts the categories of information about intelligence sources
that the Director is authorized to protect.

   Indeed, the legislative history of Exemption 3 of the FOIA
explicitly mentions Section 403(d)(3) -- not just Section 403g -- and
shows that Congress specifically viewed Section 403(d)(3) as a
principal example of the kind of statute to which Exemption 3 refers.
See H.R. Rep. 94-880 (Pt. II), 94th Cong., 2d Sess. 15 n.2 (1976);
H.R. Rep. 93-1380, 93d Cong., 2d Sess. 12 (1974);  S. Rep. 93-854, 93d
Cong., 2d Sess. 16 (1974).  See also S. Rep. 98-305, 98th Cong., 1st
Sess. 7 n.4 (1983).  In fact, the breadth of Section 403g shows
Congress's acute concern to keep all aspects of the CIA's operations
confidential.  Under Section 403g, for example, it is plain that
MKULTRA researchers who happened to be CIA employees need not be
disclosed.

   c. But the court of appeals' most fundamental error was to permit
what the court considered to be the pro-disclosure philosophy of the
FOIA to influence its interpretation of Section 403(d)(3) (see, e.g.,
App., infra, 41a-45a, 47a, 50a).  This approach is wholly
misconceived.  Exemption 3 "incorporat(es) by reference exemptions
contained in (the) * * * statutes" it identifies.  H.R. Conf. Rep.
94-1441, 94th Cong., 2d Sess. 14 (1976);  see id. at 25.  The court of
appeals acknowledged that 50 U.S.C. 403(d)(3) is an Exemption 3
statute (App., infra, 44a);  /5/ as we have noted, the legislative
history of Exemption 3 establishes that proposition beyond any doubt.

   Thus, the only question is what Congress intended by use of the
term "intelligence sources and methods" when it enacted 50 U.S.C.
403(d)(3).  Section 403(d)(3) was passed in 1947 -- a time when the
prevailing attitudes toward both secrecy and the intelligence services
were far different from what they were when the FOIA was enacted and
amended.  The court of appeals identified nothing in the language or
legislative history of Section 403(d)(3) suggesting that Congress
intended to depart from the plain meaning of the term and adopt the
restrictive definition that the court devised.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   RICHARD K. WILLARD

      Acting Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   DAVID A. STRAUSS

      Assistant to the Solicitor General

   ROBERT E. KOPP

   LEONARD SCHAITMAN

      Attorneys

   DECEMBER 1983

   /1/ The assurance of confidentiality given to an intelligence
source is, of course, seldom recorded in writing, and often it is not
even explicit.  It is usually so obvious to all concerned that the
source wants to remain confidential that no explicit understanding is
needed;  an assurance of confidentiality is implicit in the
relationship between the Agency and the source.  For this reason, the
practical damage caused by the court of appeals' definition would not
be greatly reduced even if it were amended so as to require courts to
honor fully explicit promises of confidentiality.  In any event, the
court's most recent opinion -- in particular, its criticism of the
district court and its rejection of Judge Bork's position --
constitutes an unequivocal refusal to consider such an amendment.

   Moreover, the CIA obtains much valuable intelligence from unwitting
sources -- sources who reveal information to a person who is,
unbeknownst to the source, a CIA contact.  It is obviously artificial
to analyze the CIA's interest in protecting the identities of such
sources in terms of assurances of confidentiality.

   /2/ In Fitzgibbon v. CIA, Civil Action No. 79-0956 (D.D.C. Nov. 10,
1983), motion for reconsideration pending, for example, a district
court applying the court of appeals' definition of "intelligence
sources" has ordered the disclosure of CIA sources in the Dominican
Republic on the basis of judgments such as these:  only the Trujillo
regime, which has been deposed, would have taken action against these
sources (slip op. 29 n.50);  the current regime is "stable" and "has
disavowed all ties with Trujillo's politics, attitudes and methods"
(ibid.);  since Trujillo and his police chief are dead, the sources
need not fear retaliation from individuals sympathetic to Trujillo
(id. at 33 n.60);  and indeed "(m)any of the sources * * *, far from
being embarrassed by revelation, might well be thought to be popular,
particularly in the Dominican Republic, for having helped, no matter
how slightly, to work against the dictator now unpopular and scorned"
(id. at 34 n.61).

   Leading experts on the politics and culture of a society are likely
to differ on the extent to which generalizations like these are
accurate.  Plainly a court should not be in a position of having to
make such judgments.

   /3/ In addition, much information that is publicly available in
principle can be difficult to obtain from public sources, and far more
easily obtained from sources whose identity both the source and the
Agency legitimately wish to protect.  An example of such information
might be details of the travel plans or financial transactions of an
individual whom the CIA is observing.  It might be far more difficult
to obtain such information from a public source than from a source who
would cease to provide it if his identity were revealed;  but the
court of appeals would apparently require the disclosure of such a
source's identity, since the information was available by means that
did not involve a guarantee of confidentiality.

   /4/ As the District of Columbia Circuit itself remarked, on one
occasion when the definition it devised in this case apparently had
not been brought to its attention:  "The Freedom of Information Act
bars the courts from prying loose from the government even the
smallest bit of information that * * * would disclose intelligence
sources or methods." Afshar v. Department of State, 702 F.2d 1125,
1130 (1983) (McGowan, J.).

   /5/ See also Gardels v. CIA, 689 F.2d 1100, 1107 (D.C. Cir. 1982);
Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978), cert. denied, 445
U.S. 927 (1980);  National Commission on Law Enforcement and Social
Justice v. CIA, 576 F.2d 1373, 1376 (9th Cir. 1978).

                               APPENDIX

   APPENDIX MATERIAL IS NOT AVAILABLE ON JURIS.