September 1, 1977

Weissman v. Central Intelligence Agency—District

of Columbia Circuit—Effect of Decision

77-48 MEMORANDUM OPINION FOR THE

GENERAL COUNSEL OF THE CENTRAL

INTELLIGENCE AGENCY

This is in response to your request for our opinion with respect to 

the consequences of the recent decision of the Court of Appeals for the 

District of Columbia Circuit in Weissman v. Central Intelligence Agency,

565 F. 2d 692 (D.C. Cir. 1977).1 We understand that the decision has 

been made by the Solicitor General not to seek Supreme Court review 

in this instance. We have discussed with his office informally our 

general views on the Weissman case, but we were not directly involved 

in the consideration of the question whether this was an appropriate 

case in which to seek certiorari. The question that remains is whether, 

and to what extent, the Weissman case proscribes the activities of the 

Central Intelligence Agency (CIA). For the reasons that follow, we are 

unable at this juncture to provide your Agency with a definitive opinion on the scope and consequences of the D.C. Circuit’s opinion. We 

are able, however, to suggest the considerations that ought to be 

applied by the CIA in developing procedures dealing with the types of 

activities potentially affected by Weissman.

The troublesome portion of the decision in Weissman is the court’s 

treatment of the Government’s claim that certain documents generated 

as part of an investigation o f Mr. Weissman need not be disclosed to 

him by reason of exemption seven of the Freedom of Information Act. 

5 U.S.C. § 552(b)(7). The district court had ruled that the CIA investigation fulfilled that exemption’s requirement that the investigation be 

lawful, and that therefore the exemption protected the documents at 

issue from disclosure. The court of appeals held, however, that exemption seven was not available to the CIA for the sort of activity involved here, and remanded the case to the district court to determine

1 T his was an action under the Freedom o f Inform ation A ct to compel the Central 

Intelligence A gency to turn over certain documents.

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whether other exemptions could protect the documents against disclosure in the absence of that exemption.

The court’s rationale is not clear. However, the ruling appears to be 

based on its belief that the investigative procedures used were not 

legally authorized where the target of those procedures was a United 

States citizen having no connection with the CIA. The court indicated 

its opinion as to the CIA’s authority in this regard in several statements:

[The proviso in 50 U.S.C. § 403(d)(3)] was intended, at the very 

least, to prohibit the CIA from conducting secret investigations of 

United States citizens, in this country, who have no connection 

with the Agency. 565 F. 2d at 695.

[The responsibility of the Director of Central Intelligence to protect intelligence sources and methods] contains no grant of power 

to conduct security investigations of unwitting American citizens. 

Id. at 696.

A full background check within the United States of a citizen who 

never had any relationship with the CIA is not authorized .... 

Id. at 696.

These three statements, apparently, form the basis of the court’s ruling 

that exemption seven is not available.

Neither the above statements nor the rest of the court’s opinion 

explain exactly what sorts of investigations the court believed were 

illegal; the court’s opinion is ambiguous, for example, as to the scope of 

permissible investigations and the “connection” that the person under 

investigation must have with the CIA. In assessing the opinion, and in 

endeavoring to determine what restrictions it imposes upon the CIA, 

we believe that there are several factors that ought to be taken into 

consideration.

First, a restrictive interpretation of the court’s language is justified in 

view of the context in which it was rendered. The opinion was rendered in a case involving the Freedom of Information Act, and not in 

an injunctive or declaratory action directly challenging the CIA’s practices. The court was not presented with a full and direct briefing and 

consideration of the complex issues that must be evaluated in ascertaining the proper limitations on the CIA’s substantive activities.

Second, this is the decision of only one court of appeals in a single 

case. The Government in other contexts has not always accorded final 

effect to the decisions of lower Federal courts. For instance, in the 

areas of tax and labor law, the Government frequently has pursued in 

one circuit a statutory interpretation at odds with pertinent rulings by 

courts in other circuits. Moreover, there is reason to believe that 

further elaboration of the court’s view of the CIA’s authority will be 

forthcoming in the not too distant future. As you know, the Government has now filed with the D.C. Circuit Court of Appeals its appellee 

brief in Marks v. Central Intelligence Agency, No. 77-1225. The Govern195
ment devotes considerable attention to a discussion of the potential 

sweep of the Weissman case, and it may well be that the court will take 

this opportunity to expand upon or clarify its views.

Additionally, we do believe that a substantial argument can be made 

that the case was decided wrongly. As you know, Exceutive Order 

11905 3 CFR 90 (1976) prohibits foreign intelligence agencies from 

collecting information concerning the domestic activities of United 

States persons, except, among other things, for information collected to 

determine the suitability or credibility of persons who are reasonably 

believed to be potential sources or contacts. § 5(b)(7)(iii). See also

§ 4(b)(8). The court did not discuss this provision at all. Additionally, 

the Senate Select Committee to Study Intelligence Activities recognized that the CIA previously had conducted such investigations, and 

apparently did not object to them as violations of the CIA’s charter 

legislation; in fact, the Committee recommended that the practice be 

allowed to continue. See S. Rep. No. 755, Book II, 94th Cong., 2d 

Sess., pp. 302-03 (1976). In a perplexing footnote, the court of appeals 

referred to that treatment o f the question by the Committee, but it is 

unfortunately quite difficult to determine whether the reference was 

intended as a favorable comment upon the practice or as a simple 

statement of historical fact. See, id. at 696, fn. 8. We believe that given 

the court’s ambiguous treatment of these important questions, we 

should be slow to adopt any interpretation of the court’s language that 

would be at odds with these conclusions drawn, respectively, by the 

executive and legislative branches. Nonetheless, this is the only judicial 

interpretation and its import cannot be ignored.

With those considerations in mind, the following are our general 

comments about the meaning of the Weissman case:

1. Knowledge of the subject. Your letter to our Civil Division 

expresses a concern that the court’s opinion might be read to 

require that the subject of any proposed investigation be “made 

aware of both the fact and the CIA sponsorship of the investigation.” The Civil Division does not believe this to be the case, and 

neither do we. While the court at times refers to investigations of 

“unwitting” Americans, 565 F. 2d at 696, other statements in the 

opinion are not predicated on the factor that the investigation is 

unknown to the subject. See, e.g., id. at 695, 696. Rather, these 

statements find investigations unauthorized by reason of the lack of 

a “relationship” or “connection” with the CIA. While in many 

cases an individual will be aware of his relationship with the CIA, 

the lack of an explicit requirement to this effect in the court’s 

opinion indicates that the court did not deem this to be an invariable prerequisite to an investigation.

2. Requisite connection with the CIA. The court made clear in 

several instances that the prohibition on CIA security investigations applied only to those “who have no connection with the

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Agency” or “who never had any relationship with the CIA.” This 

implies that the CIA might under appropriate circumstances conduct investigations of those who have some connection with the 

CIA; the opinion, however, does not specify what sorts of connections might justify a security investigation. While the end result 

makes clear that the CIA’s unilateral, undisclosed interest, by itself, 

is not sufficient, much more than this may not be required to 

establish the requisite relationship. For example, all those performing work for or on behalf of the CIA might have a sufficient 

relationship with the Agency to justify a security investigation— 

even if they are unaware of CIA sponsorship or involvement. 

Individuals who consent to an investigation, in the hope of becoming an employee or asset, also would seem to have a connection 

with the Agency that would justify a security investigation.

3. Permissible scope of the investigation. The court at one point 

states that “a full background check” is not authorized; we do not 

believe, however, that this is the only type of investigation which is 

prohibited. The court at other points states that the CIA is barred 

from “secret investigations” or “surveillance and scrutiny” of 

United States citizens, and this would indicate that some initiatives 

less than a full background check are precluded. At the same time, 

we agree with the Civil Division that all such initiatives are not 

precluded. The court’s references to a “full background check” (p. 

696), to “surveillance and scrutiny,” to a “Gestapo” and a “secret 

police,” and to a prying “into the lives and thoughts of citizens” 

(p. 695), together with the context of the thorough investigation 

that the court assumed occurred in this case, suggest that the court 

was concerned about the more intrusive security checks. The court 

also emphasized the extensiveness of the investigation, pointing out 

that it spanned a “five year period.” (p. 695). Additionally, in 

endeavoring to ascertain the limits of the court’s opinion, the 

reference in footnote 8 deserves attention. In discussing the Committee’s recommendations, the court pointed out that a line had 

there been drawn between investigations “through surveillance” 

and those, which the Committee approved, “to collect information 

through confidential interviews about ‘individuals or organizations 

being considered by the CIA as potential sources of information 

. . . . ’” 565 F. 2d 696, fn. 8.

4. The relationship between “connection and intrusiveness.” It is 

clear that the court was concerned about investigations of those 

who have no “connection” with the CIA. It is also clear that the 

court was sensitive to the extensiveness and intrusiveness of such 

investigations. On the basis of the court’s opinion, however, there 

simply is no definitive way to determine the precise relationship 

between those two factors. Plainly, an investigation that is as longlived as was the Weissman investigation, and involves “detailed

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background checks” o f a person who is unaware that he is being 

considered by the CIA and who has no “connection” with the 

Agency, would be inconsistent with the decision. However, it is 

difficult to anticipate whether the Weissman case has any further 

reach. The opinion offers little guidance in interpreting the statutory limitations upon your Agency’s activities.

Given this ambiguity, w e would suggest that the most productive 

course might be for the CIA to draft procedures governing the types of 

activities that require it to conduct investigations of United States 

citizens within the United States who have no clear connection with 

the CIA. This Office would be happy to review those procedures and 

to cooperate with you in any other way we can.

J o h n M . H a r m o n

Assistant Attorney General

Office o f Legal Counsel

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