Handbook of intelligence studies / edited by

FRED F. MANGET
37 Ibid., at 852.
38 5 U.S.C. Section 552 (Westlaw 2006).
39 5 U.S.C. Section 552a (Westlaw 2006).
40 CIA v. Sims, 471 U.S. 159 (1985).
41 Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).
42 See, for example, Knight v. CIA, 872 F.2d 660 (5th Cir. 1989), cert. denied, 494 U.S. 1004 (1990); Phillippi
v. CIA, 546 F.2d 1009 (D.C. Cir. 1976); Miller v. Casey, 730 F.2d 773, (D.C. Cir. 1984). The executive
branch has taken the position that de novo review of the classification decision of the executive branch
raises serious constitutional separation of powers issues. This position was strengthened by the case of
Dept. of the Navy v. Egan, 484 U.S. 518, 527 (1988), in which the Supreme Court said that “[The
President’s] authority to classify and control access to information bearing on the national security . . .
flows primarily from this constitutional investment of power in the President and exists quite apart
from any explicit congressional grant.” Nevertheless, executive branch affidavits asserting classification
are still required and reviewed by judges.
43 Knight v. CIA, at note 36.
44 Fitzgibbon v. CIA, 911 F.2d 755, 757 (D.C. Cir. 1990). The CIA and FBI prevailed in withholding the
information under FOIA exemptions after extensive District Court review of the records at issue,
which related to intelligence sources and methods.
45 See, for example, Patterson v. FBI, 893 F.2d 595, 599–600 (3d Cir. 1990); Hayden v. NSA/Cent. Sec. Serv.,
608 F.2d 1381, 1385 (D.C. Cir. 1979); Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976).
46 345 U.S. 1 (1953).
47 For example, the National Security Act of 1947, as amended, 50 U.S.C.A. Section 403–1(i) (Westlaw
2006), states that the Director of National Intelligence shall “protect intelligence sources and methods
from unauthorized disclosure” (previously a duty imposed on the Director of Central Intelligence
prior to the creation of the position of the Director of National Intelligence). See also Section 6 of the
Central Intelligence Agency Act of 1949, as amended, 50 U.S.C. Section. 403g (Westlaw 2006).
48 Kerr v. United States District Court, 426 U.S. 394, 405–06 (1976); United States v. Nixon, 418 U.S. 683,
714–15 (1974); Farnsworth-Cannon, Inc. v. Grimes, 635 F.2d 268, 269 (4th Cir. 1980).
49 Halkin v. Helms, 598 F.2d 1, 5 (D.C. Cir. 1978).
50 Ibid., pp. 5–7.
51 Birnbaum v. United States, 588 U.S. 319 (2d Cir. 1978).
52 981 F.2d 1316 (D.C. Cir. 1993). The petitions of the plaintiff for a rehearing by the full Court of
Appeals and for a writ of certiorari from the Supreme Court were denied.
53 Webster v. Doe, 486 U.S. 592, 603 (1988).
54 Tenet v. Doe, 544 U.S. 1 (2005).
55 Totten v. United States, 92 U.S. 105 (1876).
56 99 F. Supp. 2d 1284, 1289–1294 (W.D. Wash. 2000), and 329 F. 3d 1135 (9th Cir. 2003), respectively.
57 Christopher v. Harbury, 536 U.S. 403 (2002).
58 Constitutional torts are called “Bivens” actions, after the Supreme Court case of Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U.S. 388 (1971). Such actions are based upon the theory that under the
Constitution itself, without further statutory waiver of sovereign immunity, courts may impose tortlike
liability upon individual US government employees when they egregiously violate protections
guaranteed to individuals by the Constitution. Such actions are rarely successful.
59 Supra, note 4, at 418.
60 Schneider v. Kissinger, 310 F. Supp. 2d 251 (D.D.C. 2004), aff’d, 412 F.3d 190 (D.C.Cir. 2005).
61 U.S. v. Snepp, 444 U.S. 507 (1980); U.S. v. Marchetti, 466 F.2d 1309 (4th Cir. 1972), cert. denied,
93 S.Ct. 553 (1972).
62 McGehee v. Casey, 718 F.2d 1137, 1139 (D.C. Cir. 1983).
63 Ibid., at 1148.
64 403 U.S. 713 (1971).
65 See William R. Corson and Robert T. Crowley, The New KGB: Engine of Soviet Power (New York:
William Morrow, 1985) pp. 21–6, 129–30, 174–5; Harry Rositzke, The KGB: The Eyes of Russia (New
York: Doubleday, 1981) pp. 79–81, 94–5.
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