                                                                Septem ber 1, 1977


77-48       MEMORANDUM OPINION FOR THE
            GENERAL COUNSEL OF THE CENTRAL
            INTELLIGENCE AGENCY
            Weissman v. Central Intelligence Agency—District
            of Columbia Circuit—Effect of Decision


   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 o f the
Central Intelligence Agency (CIA). F o r the reasons that follow, we are
unable at this juncture to provide your Agency with a definitive opin­
ion on the scope and consequences o f 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 investi­
gation 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 exemp­
tion seven was not available to the CIA for the sort of activity in­
volved here, and remanded the case to the district court to determine

  1 T h is w as an action under the Freedom o f Inform ation A ct to com pel the Central
Intelligence A gency to turn over c erta in docum ents.

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whether other exemptions could protect the documents against disclo­
sure 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 pro­
     tect 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 ren­
dered in a case involving the Freedom of Information Act, and not in
an injunctive or declaratory action directly challenging the C IA ’s prac­
tices. The court was not presented with a full and direct briefing and
consideration of the complex issues that must be evaluated in ascertain­
ing the proper limitations on the C IA ’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 Govern­
ment has now filed with the D.C. Circuit Court of Appeals its appellee
brief in M arks v. Central Intelligence Agency, No. 77-1225. The Govern­
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 ment devotes considerable attention to a discussion of the potential
 sweep o f 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 C FR 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 o r 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 recog­
nized 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.
   W ith 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 investiga­
      tion.” 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 invari­
      able prerequisite to an investigation.
         2. Requisite connection with the CIA. The court made clear in
      several instances that the prohibition on CIA security investiga­
      tions applied only to those “w ho 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 con­
duct investigations of those who have some connection with the
CIA; the opinion, however, does not specify what sorts of connec­
tions 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 perform­
ing 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 o f becom­
ing 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” o f
United States citizens, and this would indicate that some initiatives
less than a full background check are precluded. A t 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 o f citizens”
(p. 695), together with the context o f 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 Com­
mittee’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 long-
lived 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 C IA 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 statu­
      tory limitations upon your Agency’s activities.
   Given this ambiguity, w e would suggest that the most productive
course might be for the C IA 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.
                                           John M . H arm on
                                         Assistant Attorney General
                                                 Office o f Legal Counsel




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