MEMORANDUM OPINION OF UNITED STATES DISTRICT JUDGE CHARLES R. RICHEY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP93B01194R001000030022-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 5
• Document Creation Date: December 20, 2016
• Document Release Date: November 20, 2006
• Sequence Number: 22
• Publication Date: June 20, 2002
• Content Type: COURTFILE

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UNITED'STATES.DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RALPH W, MC GEHEE, and THE
NATION,
Plaintiffs,
WILLIAM CASEY, Director'of
Central Intelligence,
Defendant.
Civil Action No. 81-0734
F.IL.ED
SEP 2 1981
JAMES F. DAVEY. Clerk
MEMORANDUM OPINION OF UNITED STATES DISTRICT JUDGE
CHARLES R. CH Y
This case is 'before the Court on the parties' cross
motions for summary judgment.- The plaintiffs seek an Order from
this Court directing the defendant, the Director of the Central
Intelligence Agency ("CIA"), to permit plaintiffs to publish the
censored portions of plaintiff McGehee's article or, in the alter-
native, finding that such censorship is not a constitutionally
sufficient standard to justify prior restraint. For the follow-
ing reasons, the Court finds that 'the defendants have properly
censored portions of the article.
BACKGROUND
Plaintiff Ralph W.. McGehee was employed by the CIA be-
tween February, 1952, and February, 1977. (Complaint 1 3). Upon
beginning and ending employment with the CIA, and as a condition'
thereof, McGehee executed certain written agreements which pro-
vided that he is obliged to submit to the CIA,for pre-publication
review all writings that contain information concerning the CIA
which he learned during the course of-his employment with the
agency. (Complaint 1 6). On March 20, 1981, McGehee submitted
to the CIA for pre-publication review a twelve-page draft article
entitled "CIA Operations in El Salvador." (Complaint 1 10).
Upon review of the article, the CIA informed McGehee on March 24,
1981, that it would censor certain portions of his article.
(Complaint .1 15). ? On March 26, 1981, McGehee suomitted the cen-
sored version of his article to The Nation. (Complaint 1 17).
OGC Has Reviewed
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Toe Nation decided to publish the censored version in its April 3
issue. (Complaint 1 18). McGehee and The Nation now seek to
publish the censored portions of the article and have thus- ap_-' .
plied to this Court for relief. (Complaint 1 19).
ANALYSIS
It is clear that McGehee's promise not to divulge classi-
fied information without authorization and not to publish any
information relating to the CIA without pre-publication clearanC e
was an integral part of his employment. The effect of that agree--
vent was enunciated in the recent Supreme Court case of Snepp V.
United States, 444 U.S. 507, 509 n.3. (1980). wherein the Court
stated:
(a) military plans, weapons, or operations;
(b) foreign government information;
(c) intelligence activities, sources-or methods;
(d )_ for~:..ir+slaCfoi~ ?~-;t7 -.- -.~ ?~?- ?,~.a., .:~.,~_._ ~_~.___ - -
__._~ or .p.ei.ne
United Se_igctates.... _. _..._.............-~ ---..r,.?y=-_ r. t _ .
--even in the absence of an express agreement--the
CIA could have acted to protect substantial govern-
ment interests by imposing reasonable restrictions
on employee activities that in other contexts might
be protected by, the' First Amendment. CSC v. Letter
Carriers, 413 U.S. 548, 565 (1973).; see Brown v.
97 T Wineante, p. 348; Buckle v. Va1co424
, l
2 -M-Z19767; Green. v. S pock, 424 U. . 828 (1976);'
id. , at 844. 84 (Po-well, J. , concurring) ; Cole v.
Richardson, 405 U.S. 676 (1972). The' Government
teas 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. See infra, at 511-512. The
agreement that Snepp signed is a reasonable means
for protecting this vital interest.
See Knopf v. -Colby, 509 F. 2d' 1362, 1370-71 (4th Ci r.) cert.
denied, 421 U.S. 992 (1975).
Where it is found that the CIA may censor.any informa-.
-tion about itself the critical question is whether that informa-
tion has-been properly classified and thus subject to censorship.
The authority upon which the CIA censors information- is found in-
Executive Order 12065, 3 C.F.R. 190 (1979) Pursuant. to that
executive order 51-301, information may not be considered for
classification unlesi it concerns:
(e) scientific technological or economic matters
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 (g) other categories of information which are re-
..?lated to national 'security and which require pro-.
tection against unauthorized disclosure as deter-
mined by the President, by a person designated by
the President pursuant to Section 1-201,. or by an
agency head.
(f) United States .Government programs for safe-
guarding nuclear materials or facilities; or
The plaintiffs argue that the information has been im-
properly classified and, thus, release must be mandated. The
Court does not agree. A de novo review of the documents sub'
mitted for in camera inspection shows that the defendants had in
fact properly classified the documents and were warranted in
their
e
nsors"Ip. The censored informationfallsw:th:
purview of one or more of the following:
(1) foreign government information [?1-301(b)];
(2) CIA foreign intelligence capabilitiesactivi-
ties, sources or methods [?1-301(c)]; and"
(3)'foreign relations or foreign activities of the
United States [?1-301(d)).-
In determining whether the documents were properly
classified, the Court notes that:
(t)here is a presumption of regularity in the per-
formance by a public official of his publi c duty.
The presumption of regularity supports the official
acts of public officers, and, in the absence of
clear evidence to the contrary
they have . courts presume that
y properly discharged their official duties.
..Knopf Inc. v. Colby, 509 F.2d 1362, 1368 (4th Cir.), cert.
denied, 421 U.S. 992 (1975).
A review of the in camera affidavits-submitted by
both parties fails to persuade the Court that'any other
result would be appropriate. Moreover, .the rationale of
the CIA preclearance was articulated by the Supreme Court
in Snepp v. United States, 444 U.S. 507, 512 (1980) wherein
the Court stated:
[w]hen a former agent relies on his own judgment about
what information is detrimental, he may reveal informa-
tion that the CIA - with its broader understanding of
what may expose classified information and confidential
_ _ .
sources - could have identifi
ed
Accordingly, this Court must exercise judicial deference to the
administrative expertise:
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Plaintiffs also assert that the defendants have failed
ply with the requirement of E.O. 12065 that agencies
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balance the public interest in disclosure against the need to
protect information relating to the national security. Section
3-303 of the. Executive Ord-r..- states
3-303 It is presumed that information which con-
tinues to meet the classification requirements in
Section 1-3 requires continued protection. In some
cases, however, the need to protect such informa-
tion may be outweighed by the public interest. in
disclosure of the information, and in these cases
the information should be declassified. When such
questions arise, they shall be referred to the
agency.head, a senior agency official with respon-
sibility for processing Freedom of Information Act
requests or Mandatory Review requests under this
Order, an ' of f icial with Top Secret classification
authority, or the Archivist of the United States in
the case of material covered in Section 3-503.
That official will determine whether the public
interest in disclosure outweighs the damage to
national security that might reasonably be expected
from disclosure.
However, by its terms,, this provision places discretion with the
appropriate agency head to determine when balancing is required
.and then to do the' balancing. Andres v. CIA, No. 80-0865,
(D.D;C. April 28, 1981). Further, the record is clear that this
balancing has been performed by the appropriate officials.
Based on the foregoing., the plaintiffs' motion must be
-denied. An Order in accordance with the foregoing shall be
issued of even date herewith.
Dated: September
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RALPH W. MC GEHEE, and THE
NATION,
Plaintiffs,
Civil Action No. 81-0734
WILLIAM CASEY, Director of ~. L E D
Central Intelligence,
Defendant. SEP 2 51981
JAMES E. DAVEY? Clerk
0 R D E.R
In accordance with the Memorandum-Opinion issued of even
date herewith, It' is, by the Court, this I `/1 day of September
1981,
ORDERED that plaintiffs' motion for summary judgment is
hereby denied; and it is
FURTHER ORDERED that defendant's motion for summary
judgment is hereby granted;"and it is.
FURTHER ORDERED that the complaint herein be, and the
same hereby is, dismissed.
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