PROFS case

	UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________________
)
SCOTT ARMSTRONG, et al., )
)
Plaintiffs, )
)
v. ) C.A. No. 89-0142 CRR
)
EXECUTIVE OFFICE OF THE PRESIDENT, et al., )
)
Defendants. )
___________________________________________)
PLAINTIFFS' MEMORANDUM IN SUPPORT OF
CROSS-MOTION FOR SUMMARY JUDGMENT ON THE
APPLICABILITY OF THE FEDERAL RECORDS ACT TO
THE NATIONAL SECURITY COUNCIL AND IN
OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
OR, IN THE ALTERNATIVE, FOR SUMMARY
JUDGMENT ON NSC RECORDKEEPING CLAIMS.
Michael E. Tankersley
(D.C. Bar No. 411978)
Alan B. Morrison
(D.C. Bar No. 073114)
Public Citizen
Litigation Group
Suite 700
2000 P Street, N.W.
Washington, D.C. 20036
(202) 833-3000
August 8, 1994 Attorneys for Plaintiffs
TABLE OF CONTENTS
Introduction 1
BACKGROUND 3
A. Prior Proceedings In This Action. 3
B. The Dual Functions Performed By The NSC. 6
C. NSC Records and Recordkeeping Guidelines. 12
D. The NSC's Actions Under The FOIA And Federal
Records Act. 14
SUMMARY OF ARGUMENT 16
ARGUMENT 19
I. DEFENDANTS' SHIFT IN POSITION FOLLOWING TWO
APPEALS IN WHICH THE NSC CONCEDED IT WAS AN AGENCY
IS BARRED BY THE LAW OF THE CASE DOCTRINE. 19
II. THE NSC IS AN AGENCY 22
A. The NSC Is An Establishment In The Executive
Branch. 23
B. The NSC Performs Agency Functions. 29
1. The NSC Exercises Governmental Authority
Through Rulemaking And Adjudication. 30
a. Rulemaking. 31
b. Adjudication. 35
2. The NSC Exercises Governmental Authority
In Directing, Evaluating, Coordinating and Guiding
The Implementation of National Security Policies. 42
a. Prior Court of Appeals Decisions On
EOP Agencies. 43
b. Areas In Which The NSC Exercises
Agency Authority. 46
(1) Intelligence. 46
(2) Protection of Sensitive National
Security Information. 50
(3) Telecommunications. 53
(4) Emergency Preparedness. 56
(5) Nonproliferation. 58
(6) Arms Control Verification. 59
(7) "Public Diplomacy." 61
III. DEFENDANTS' CONSTITUTIONAL ARGUMENTS ARE WITHOUT
MERIT. 63
CONCLUSION 71
Introduction
For the past forty years, the National Security
Council ("NSC") has repeatedly acknowledged that it
is an "agency" within the Executive Branch. The NSC
has transferred and scheduled its records with the
Archivist as an agency under the Federal Records
Act, 44 USC ' 3101, et seq.; it has issued
regulations and processed requests as an "agency"
under the Freedom of Information Act ("FOIA"), 5 USC
' 552; and it has acknowledged in litigation that
it is an agency. Indeed, during the first five
years of this litigation, the NSC never contested
that it is an "agency," and it has repeatedly
admitted that it performs agency functions.
The NSC's longstanding acknowledgment that it is
an "agency" is not surprising since the NSC
exercises all the classic powers of an "agency"
under the Administrative Procedure Act, 5 USC
' 551(1). It issues rules, it adjudicates disputes,
and it acts on requests for exemptions from legal
requirements. While the NSC advises and assists the
President, this has never been its sole function.
Like other agencies, the NSC has, by statute,
regulation, and executive order, the authority to
implement the President's policies.
Nonetheless, defendants now contend that the NSC
is not, and has never been, an agency. The reason
for this abrupt shift is apparent: defendants seek
to evade the prior decisions of this Court
concerning the obligations of agencies to preserve
records under the Federal Records Act. The orders
entered by this Court in 1989, 1992, and 1993,
prevented defendants from carrying out plans to
destroy valuable historical electronic records of
the NSC. But if defendants' new theory that the NSC
is not an agency is accepted, the destruction of NSC
records would be entirely immune from judicial
review, and current Administration will be able to
erase the electronic NSC records chronicling its
conduct with impunity.
Moreover, the defendants have asked this Court
to rule that none of the NSC's records are subject
to the FOIA -- though for the past twenty years the
NSC itself has never contested that it is an
"agency" subject to the FOIA. Indeed, defendants
now maintain that the application of the FOIA to the
NSC is unconstitutional, although, at least since
the Carter Administration, the NSC has consistently
provided access to its records under the FOIA. In
seeking this ruling, however, defendants are urging
the Court to rule on hypothetical issues that are
not presented in this case. Defendants themselves
acknowledge that, whether or not the NSC is an
agency, defendants must process the NSC records that
plaintiffs have requested under the FOIA Count in
accordance with the FOIA. The critical issue
presented by defendants' new claim is whether the
courts have the authority to prevent defendants from
unlawfully destroying NSC records.
This Court should reject defendants' effort to
evade the prior decisions in this action concerning
preservation of NSC records. The record
demonstrates that the NSC is, as it has consistently
acknowledged in the past, an agency of the Federal
government. The defendants' contrary argument is
nothing short of a cynical attempt to rewrite
history in order to allow the current administration
to have unfettered control over what records are
preserved for future historical use. Accordingly,
the Court should affirm that its rulings under the
Federal Records Act apply to the records of the NSC
and enter final judgment on the merits for
plaintiffs on Counts II and III of plaintiffs'
amended complaint. The only remaining issues on the
merits concern Count I, which seeks release of
records now held by the Archivist, and resolution of
those issues does not depend on the status of the
NSC as an "agency," but on defendants completing the
FOIA processing that the Court has already ordered.1
BACKGROUND
A. Prior Proceedings In This Action.
During the first five years of this action,
defendants acknowledged that the NSC is an "agency"
subject to the Federal Records Act, the FOIA, and
the jurisdiction of this Court. See, e.g., Joint
Statement of Facts 6 158 (Dec. 8, 1992)
(acknowledging that the NSC is an agency for
purposes of the FOIA). As a result, both this Court
and the Court of Appeals have entered judgments
against the NSC based on the obligations of agencies
to preserve electronic records under the Federal
Records Act and the FOIA. Defendants' current claim
that the NSC is not an agency is an attempt to
nullify those prior rulings with respect to the NSC
on the theory that the NSC is entirely exempt from
the obligations set forth in those statutes.
In the first appeal in this action, the Court of
Appeals addressed judicial review of compliance with
the Federal Records Act and the Presidential Records
Act. The Court found that it did not have
jurisdiction over Presidential records because the
President is not an "agency" and preservation of
Presidential Records is not subject to judicial
review. Armstrong v. Bush, 924 F.2d 282, 289-291
(D.C. Cir. 1991). On the other hand, the Court
rejected the NSC's argument that compliance with the
Federal Records Act is not subject to judicial
review under the Administrative Procedure Act, 5 USC
'' 701-706 ("APA"), and remanded for this Court to
review the adequacy of the NSC's recordkeeping
guidelines under the Federal Records Act, and to
determine whether the Archivist had breached his
statutory duty to preserve NSC records. Id. at 297.
In the second appeal, the Court of Appeals
upheld this Court's findings that the NSC's
recordkeeping practices for electronic records were
arbitrary and capricious under the APA, and upheld
the injunction entered by this Court to prevent the
destruction of records in violation of the Federal
Records Act. Armstrong v. Executive Office of the
President, 810 F. Supp. 335, 345-347 (D.D.C.), aff'd
in relevant part, 1 F.3d 1274 (D.C. Cir. 1993). In
doing so, the Court of Appeals affirmed this Court's
analysis of the obligations that the Federal Records
Act and the Archivist's regulations impose on
federal agencies. See id. at 341-343.
Under the FOIA Count in this action, this Court
has also held that records created electronically by
the NSC staff are "agency records." In September,
1993, this Court ordered that materials printed from
the NSC backup tapes and transferred to the
Archivist be processed under the FOIA because these
materials were "created by a Government agency [the
NSC] and are under the control of a Government
agency at the time of the FOIA request [the National
Archives and Records Administration]." Armstrong v.
Executive Office of the President, 830 F. Supp. 19,
22 (D.D.C. 1993).
Throughout these proceedings, defendants
consistently acknowledged that the NSC and the
Office of Science and Technology Policy ("OSTP")
create "agency" records subject to the Federal
Records Act. Defendants maintained, however, that
some NSC and OSTP records are "Presidential" records
and that the guidelines for distinguishing Federal
and Presidential records are immune from judicial
scrutiny. See 1 F. 3d at 1290-91. In the second
appeal, the Court of Appeals rejected defendants'
argument that such guidelines were unreviewable and
remanded the case to this Court "to determine
whether the challenged NSC and OSTP guidelines
inaccurately classify some documents as presidential
records." 1 F. 3d at 1296-97. The Court's opinion
makes clear that the purpose of this review is to
ensure that defendants do not evade the Federal
Records Act by improperly labelling agency records
as "Presidential." Id. at 1292-94.
On remand, defendants have abandoned the NSC and
OSTP guidelines that plaintiffs have challenged for
the past five years. The OSTP now acknowledges that
all of its records are Federal Records. The NSC, on
the other hand, now asserts that none of its records
are Federal Records because it is not an "agency."
Under defendants' new theory, all of the prior
rulings in this action on preservation of agency
records are inapplicable to the NSC and, indeed, the
NSC should have been dismissed at the outset because
its records are governed exclusively by the
Presidential Records Act. According to defendants,
the Court of Appeals' ruling on the availability of
judicial review in the first appeal does not apply
to the NSC, and no remand should have been ordered
to review the NSC's recordkeeping practices because
the NSC is not an "agency" under the APA or the
Federal Records Act. For the same reason,
defendants contend that the injunction affirmed in
the second appeal, which directs the Archivist and
the defendant agencies to preserve the backup tapes
and other materials containing electronic records,
810 F. Supp. at 350, must be modified or vacated to
exempt NSC records because the Archivist's
responsibilities under Federal Records Act do not
apply to NSC records.
The parties agree that this novel claim that the
NSC is not an "agency" is governed by the standard
set forth in Soucie v. David, 448 F.2d 1067 (D.C.
Cir. 1971), which was codified by Congress in 1974,
see Meyer v. Bush, 981 F. 2d 1288, 1291 (D.C. Cir.
1993), and reaffirmed by the Court of Appeals in the
second appeal in this action, 1 F. 3d at 1295.
Under Soucie, defendants must show that the NSC's
sole function is to "advise and assist the
President." 448 F. 2d at 1075. If the NSC performs
additional functions, it is an "agency," under the
federal records laws.
B. The Dual Functions Performed By The NSC.
[T]he NSC both advises and assists the
President and is an agency . . . .
- National Security Council
Executive Secretary and Legal Advisor,
May 8, 1993 (Exhibit A39)
The members of the National Security Council
staff act both as members of an agency (the NSC) and
as advisors to the President.
- National Security Council,
Deputy Legal Advisor,
Dec. 17, 1992 (Exhibit A18)
[The NSC's] responsibilities include
advising and assisting the President, and performing
independent functions set forth in the governing
statute, as well as in regulations and Executive
Orders.
- Joint Statement of Facts, 6 171,
Dec. 8, 1992 (Defs' Ex. 43)
In the aftermath of World War II, Congress
concluded that the United States' responsibilities
in the post-war era required a new structure for
organizing the United States' military, foreign
policy, intelligence, and civil defense agencies.
To respond to this need, Congress enacted the
National Security Act of 1947, 47 USC '' 401-432,
which established an entirely new entity, the NSC,
to "coordinate the many strands of national policy
set by various departments."2
Defendants devote virtually all of their
Memorandum to discussing the history of the NSC's
role in advising and assisting the President. See
Defendants' Memorandum of Points and Authorities
("Defs' Mem.") at 9-24, 40-56. Plaintiffs do not
dispute that the NSC serves this role, but it is
beside the point under the Soucie test because it is
not the NSC's sole function. In addition to
advising and assisting the President in the
formulation of national policies, the NSC is also
responsible for translating the policies adopted
into specific, concrete action. As early as 1953,
President Eisenhower underscored the dual roles of
the NSC by creating a "Planning Board" responsible
for the formulation of policy, and a separate NSC
"Operations Coordinating Board." After the NSC had
"recommended a national security policy and the
President [had] approved it," the NSC Operations
Coordinating Board was responsible for advising the
agencies concerned as to:
(a) their detailed operational planning
responsibilities respecting such policy, (b) the
coordination of the interdepartmental aspects of the
detailed operational plans developed by the agencies
to carry out such policy, (c) the timely and
coordinated execution of such policy and plans, and
(d) the execution of each security action or project
so that it shall make its full contribution to the
attainment of national security objectives.Exhibit
B10, Executive Order 10483 (Sept. 5, 1953). Today,
the NSC has not merely one Board, but a complex
system of committees and working groups that, in
addition to advising the President, give policy
guidance to agencies, coordinate execution of
policy, and perform other operational functions to
implement policy. See Exhibits A1-5. As NARA
officials reviewing the NSC's records have stated,
the NSC "is a major player in the formulation and
implementation of U.S. policies." See Exhibit A28,
Summary (emphasis added).
Indeed, NSC officials have repeatedly testified
that the NSC performs dual functions, advising the
President and implementing his decisions. In
describing the work of the NSC in 1986, Morton
Halperin, both a former and current NSC official,
stated that, apart from the NSC's "formal files"
containing records of NSC meetings and memoranda
sent to the President or the Assistant to the
President for National Security Affairs, the staff
also generated files which pertained to the
official's activities in carrying out the NSC's
agency functions, such as implementing
Administration policies, producing integrated
national security policies apart from presidential
or formal NSC decisionmaking, coordinating
implementation of national security policies, and
monitoring interagency cables. These files
generally did not involve advising the President. In
fact, many if not most, of these documents were
never seen by the President.. . [T]hese documents,
which are generated by agency officials in their
performance of the NSC's business as an agency that
coordinates the implementation of national security
policies and produces an integrated national
security policy, certainly meet the definition of "agency records"
covered by the Freedom of Information Act
("FOIA"), 5 USC ' 552.Exhibit A11, Affidavit of
Morton H. Halperin in Bevis v. National Security Council, 6 5, 6 (April
17, 1986).
During the Reagan Administration, at about the
time that the NSC electronic communications systems
at issue were fully implemented, the NSC itself
testified through interrogatories that:
The Staff which serves the National Security
Council (the Staff) has two distinct missions. In
one mission, the Staff serves as presidential
advisers, and in the other, the Staff supports the
National Security Council (NSC).Exhibit A12, NSC
Answers to Interrogatories in Bevis
v. National Security Council, at 2. The NSC
formally acknowledged in litigation that it operates
as an "agency, complete with procedural
formalities," and that it is "an executive agency
subject to the FOIA." Exhibit A13, NSC Reply In
Support of Motion To Dismiss in Bevis v. National
Security Council, at 3, 4-5.
The NSC's descriptions of its functions during
the Bush Administration recognize this same dual
role: "The Assistant to the President for National
Security Affairs and members of the National
Security Council staff act as both members of an
agency (the NSC) and as Advisors to the President."
Exhibit A18, note 1; see also Exhibit A17, note 1.
In this litigation, the NSC described its staff has
having "a dual role" because its statutory
responsibilities
fall into two areas: (1) management of the
interagency process for national security affairs,
50 USC ' 402(a) (including oversight of the Central
Intelligence Agency, 50 USC ' 403(a)) and (2)
provision of advice to the president on national
security matters.
Exhibit A15, at 5-6. In interrogatory answers in
this action, the NSC has attested that "[r]ecords
received or created pursuant to" the first of these
roles, the management of the inter-agency process
established by the National Security Act of 1947,
"are NSC agency records for purposes of the FOIA."
Exhibit A20, at 3, NSC Response to Interrogatory No.
1. In response to Requests for Admission, the NSC
has acknowledged that NSC staff may coordinate the
study or analysis of national security issues as
part of "the exercise of the NSC's agency
functions." Exhibit A25, NSC Response to Request
for Admission Nos. 75, 76.
The Clinton Administration's directive on the
organization of the NSC reflects this dual role by
providing that, in addition to assisting and
advising the President, the NSC is the "principal
means for coordinating Executive departments and
agencies in the development and implementation of
national security policy." Presidential Decision
Directive ("PDD") 2, Defs' Ex. 17 at 1. Moreover,
until it filed this Motion, the Clinton
Administration (like its predecessors) acknowledged
that "the staff of the NSC is utilized in two quite
different ways," acting as advisors to the
President, and "performing the work of the
statutorily created NSC." Exhibit A19, at 41. The
NSC staff, defendants acknowledged, perform a "dual
role" in which "staffers both advise the President
and perform additional duties." Id.; accord Exhibit
A39 (Memorandum from NSC Executive Secretary and
Legal Advisor, May 8, 1993, acknowledging that NSC
is an agency and creates Federal Records).
As defendants themselves agreed in the Joint
Statement of Facts, the "additional duties" of the
NSC arise from authority given to the NSC by
statute, executive orders, and regulations. Defs'
Ex. 43, Joint Statement of Facts 6 171. Under the
National Security Act of 1947, the NSC is
responsible for directing the Central Intelligence
Agency. 50 USC '' 403-3(a)(1), (d)(5) (1993 Supp.).
By Executive Order and regulation, the NSC has been
given specific authority over intelligence
activities (Executive Order 12,333), emergency
preparedness and crisis management (Executive Order
12,656), emergency telecommunications functions
(Executive Order 12,472; 47 CFR '' 211.6(c),(g),
213.7(g)), and protection of classified national
security information (Executive Order 12,356, 32 CFR
' 2101.41). In addition, unpublished presidential
directives have augmented the NSC's authority in
each of these areas, and have assigned additional
responsibilities to the NSC in arms control
verification, nonproliferation policy, and other
areas. See, e.g., Exhibits B39, B41, B55.
In exercising its authority, the NSC performs
the functions traditionally associated with agencies
under the Administrative Procedure Act. The NSC
issues regulations. See, e.g., 32 CFR Parts 2101-
2103; 47 CFR Parts 201-216. It approves regulations
issued in the name of other agencies. See, e.g. 32
CFR Part 2001. It also performs adjudications,
making decisions on requests for access to
documents, waiver requests, license applications,
and appeals from decisions made by other agencies.
See infra at -. Moreover, the NSC evaluates and
provides guidance, policy direction, and
coordination on a host of national security issues
through a hierarchical structure of working groups
and committees designed to translate Presidential
policy into agency action. See infra at -.
C. NSC Records and Recordkeeping Guidelines.
At issue in this action are electronic records
created and received on electronic communications
systems used by the NSC since the Reagan
Administration. These electronic communications
systems have never been used to communicate
information directly to the President. Nor have
these systems been used to communicate advice,
recommendations, or information directly to a member
of the President's immediate personal staff outside
the NSC. Exhibit A26, Request for Admission RFA2.
Instead, the NSC computer system stores
communications created and received by the NSC staff
and the National Security Adviser in the course of
carrying out the dual functions of the NSC described
above.
Prior to its current Motion, the NSC's
recordkeeping guidance recognized that the NSC
serves dual functions, and categorized records
relating to "agency" functions as Federal records.
For example, the Reagan Administration instructed
staff that
The records of the National Security Council
staff are Federal records if they were received or
created in connection with the work of the
statutorily-created National Security Council
(including any interagency groups convened under
National Security Council auspices).
Exhibit A34, White House Office Staff Manual (1988).
Records related to the conduct of business in the
NSC system were maintained by the NSC as "its own
agency records." Exhibit A14, 66 2, 3.
At the beginning of the Bush Administration in
1989, the NSC reconfigured its Records Management
System to create separate categories for
presidential, agency, intelligence, and
administrative records. Exhibit A31. The
guidelines used for this System explicitly
identified the NSC's agency functions. The
guidelines provide that records concerning NSC
oversight of two other agencies, the Central
Intelligence Agency, and the Information Security
Oversight Office ("ISOO"), which is responsible for
protection of classified information, "are
considered NSC agency records." Exhibits A32 at 2-3
and A37 at 1. In addition, these guidelines provide
that "any information provided to or written by the
NSC staff as part of the NSC interagency process,"
including the work of NSC committees, or interagency
groups convened under NSC auspices, should be filed
as part of the "NSC Agency Records System." Exhibit
A32 at 3. In 1992, the NSC instructed staff that
electronic mail notes related to these oversight
activities or the interagency process are Federal
Records. Exhibit A38, "Determining Record Status of
Electronic Mail Notes."
Although the NSC now contends that it is not an
agency, the descriptions of its files demonstrate
that the NSC continues to create and receive records
relating to the functions that the NSC formerly
acknowledged were "agency" functions. For example,
a description of the NSC's records prepared in
August, 1993, identifies the following categories of
records:
NSC Central Files. A computer-indexed
central file consisting of all federal, or agency,
records created or received by the NSC staff in connection with the interagency process or NSC oversight of intelligence matters. Meeting Files. Files documenting meetings of the National Security Council and other interagency committees established under the authority of the NSC. Intelligence Files. Files dealing with intelligence activities, particularly covert actions and other highly sensitive matters. General Files. Files documenting all other aspects of the NSC's statutory agency functions. Exhibit A29, at 2. D. The NSC's Actions Under The FOIA And Federal Records Act. In addition to issuing the recordkeeping guidelines described above, the NSC has taken actions under the FOIA and Federal Records Act that are incompatible with its current claim that it is not an "agency" under those statutes. First, the NSC has issued regulations, processed records, and participated in litigation as an "agency" under the FOIA. After the FOIA was amended in 1974, the NSC has, like other agencies, issued regulations pursuant to 5 USC ' 552(a)(4) to establish procedures for submitting requests and to set fees. Exhibit B1, 40 Fed. Reg. 7316 (1975). Under the statutory provision requiring that "each agency" shall submit an annual report on its activities under FOIA, 5 USC ' 552(e), the NSC has submitted reports each year that describe hundreds of determinations made by the NSC staff on the release of tens of thousands of documents requested under the FOIA. See, e.g., Exhibits B19-20. Since 1975, the NSC has been named as a defendant in scores of cases under the provision authorizing suits against agencies. 5 USC ' 552(a)(4)(B). But, until its current motion five years into this action, the NSC has never argued that it is not subject to suit as an "agency" under the FOIA. Exhibit A26, Request for Admission RFA7. Moreover, in at least one case in this Court, the NSC affirmatively declared that it is an agency subject to the FOIA. Exhibit A13, at 4-5. Second, the Federal Records Act provides for the submission of record schedules by "agencies." 44 USC ' 3303. The NSC has, as recently as 1990, submitted record schedules to the Archivist as an "agency," and the Archivist has appraised the records as valuable agency records that warrant permanent preservation. Exhibit A26, Request for Admission RFA8; Exhibit A28. Moreover, the NSC has transferred some of its records to the Archivist as "agency" records under the Federal Records Act. See Exhibit A27. Finally, the NSC retains and uses NSC records from prior administrations as if they were Federal agency records rather than Presidential records. The Presidential Records Act provides that, at the end of a President's term of office, the Archivist shall assume responsibility for the custody, control, and access to Presidential records, and it requires that notice be given to former Presidents before certain categories of information are made available to others, including officials of the current administration. 44 USC '' 2203(f)(1), 2206(2). But NSC records concerning NSC meetings, intelligence oversight, and other functions have not been sent to the Archivist. Instead, they have been retained by the NSC under a records schedule that provides that the records will not be transferred to the Archivist until 20 years after the President's term of office. Exhibit A26, Request for Admission RFA8; Exhibit A28. Moreover, these records are made available to officials and staff of the current NSC without providing notice of the disclosure of the records to former Presidents Reagan or Bush, as is required by the statute if they are Presidential records. Exhibit A26, Requests for Admission RFA9- 11. This handling of these NSC records is in accordance with the Federal Records Act, but inconsistent with the statutory provision that the Archivist shall take custody of, and control access to, Presidential records. SUMMARY OF ARGUMENT Defendants' effort to evade the obligation to preserve NSC records by asserting that the NSC is not an agency must be rejected because the
overwhelming evidence is to the contrary. For
decades the NSC has recognized that it is an agency.
It has repeatedly described the "dual" role its
staff performs in advising the President and in
performing agency functions. Moreover, statutes,
regulations, Executive Orders, and presidential
directives show that its role is not limited to
advising and assisting the President. The NSC
exercises the authority of the United States in
numerous areas and plays a pivotal role in
coordinating and directing the implementation of
United States policy.
In Part I, we show that defendants' assertion
that the NSC is not an agency is nothing less than
an effort to escape the results of two prior
unsuccessful appeals in this action. If defendants'
claim had any validity, the argument that the NSC is
not an agency should have been raised more than five
years ago, at the outset of this litigation. The
law of the case doctrine forecloses belatedly
raising the issue now, and this Court may reject
defendants' claims on this ground alone.
In Part II, we show that under the language of
the APA and the test set forth in Soucie v. David,
448 F.2d 1067 (D.C. Cir. 1971), the NSC is plainly
an agency. The NSC is an "agency" if (1) it is an
"establishment" in the Executive Branch, and (2) it
exercises the authority of the United States by
issuing rules, adjudicating disputes, coordinating
government activities, or otherwise acting as the
agent of the President. As is shown in plaintiffs'
Statement of Facts As To Which There Is No Genuine
Dispute ("SoF"), there are four principal reasons
why the NSC is an "agency" under this test:
1. Congress created the NSC as a distinct
"establishment" in the Executive Branch with a
separate staff and budget, and a distinct structure.
Indeed, the NSC operates through an elaborate and
well defined organization of committees and staff
directorates designed to resolve many national
security issues without requiring the intervention
of the President. See SoF 66 20-30.
2. The NSC issues and approves general rules
designed to implement and prescribe law and policy
of the federal government. Like other agency rules
having legal effect, regulations issued and approved
by the NSC are published in the Code of Federal
Regulations. See SoF 66 35-38.
3. The NSC staff and NSC committees also decide
or "adjudicate" how federal law and policy shall be
applied in particular situations. Each year NSC
staff makes nearly 1,000 determinations on access to
classified national security information in response
to requests from private parties, other government
agencies, and Congress. The NSC staff also decides
appeals challenging declassification decisions of
other agencies, and adjudicates agency requests for
waivers from requirements imposed by federal
regulations. In addition, NSC committees are
responsible for resolving agency disagreements over
whether the United States should prohibit the export
of technologies that could be used for nuclear
devices or other military purposes. See SoF 66 47-
50, 53, 60-61.
4. In prior decisions the Court of Appeals has
made clear that an EOP component that does not issue
regulations or adjudicate disputes, but directs,
coordinates, evaluates, or otherwise implements
government policy is also an "agency." The NSC, in
addition to its rulemaking and adjudicatory
activities, exercises agency authority by performing
these functions as well. By statute and executive
order, the NSC has the authority to direct
activities of the intelligence community. In
addition, regulations, Executive Orders, and
presidential directives concerning the protection of
national security information, telecommunications,
emergency preparedness, nonproliferation, arms
control verification, and "Public Diplomacy,"
provide that the NSC, its committees and staff are
responsible for implementing policies of the United
States in these areas by coordinating and directing
the activities of the federal government. See SoF
66 33-34, 39-46, 54-63. This authority to evaluate,
coordinate, implement, and direct government
activities is precisely the type of authority that
Soucie and subsequent cases have found make a
component of the EOP an "agency."
In Part III, we show that defendants' argument
that the Court should distort the interpretation of
the definition of "agency" to avoid supposed
constitutional questions is without merit. No
substantial constitutional issues are presented by
holding that, as this Court and the Court of Appeals
have previously ruled, the NSC must preserve its
records in accordance with the Federal Records Act.
In applying the Federal Records Act, preservation of
records, not their disclosure, is the only issue.
Preservation of NSC records presents no
constitutional conflict because the Supreme Court
has already rejected the argument that preventing
the President from destroying records concerning
official business infringes any constitutional
prerogative. Nixon v. Administrator of General
Services, 433 U.S. 425 (1977). Moreover, the fact
that the NSC operated as an agency under the Federal
Records Act from 1947 to 1994 without any
constitutional conflict demonstrates that
defendants' assertion that a constitutional issue is
presented is specious.
ARGUMENT
I. DEFENDANTS' SHIFT IN POSITION FOLLOWING TWO
APPEALS IN WHICH THE NSC CONCEDED IT WAS AN AGENCY
IS BARRED BY THE LAW OF THE CASE DOCTRINE
Defendants' effort to evade the prior rulings in
this case with respect to the NSC by changing
positions on remand is barred by the law of the case
doctrine. Under that doctrine, an issue that is
explicitly or implicitly decided at one stage of the
litigation and then is "unchallenged in a subsequent
appeal when the opportunity to do so existed,
becomes the law of the case for future stages of the
same litigation, and the parties are deemed to have
waived the right to challenge that decision at a
later time." Williamsburg Wax Museum, Inc. v.
Historic Figures, Inc., 810 F. 2d 243, 250 (D.C.
Cir. 1987). This rule is necessary to prevent the
"'bizarre result,' as stated admirably by Judge
Friendly, 'that a party who has chosen not to argue
a point on a first appeal should stand better as
regards the law of the case than one who has argued
and lost.'" Laffey v. Northwest Airlines, Inc., 740
F.2d 1071, 1089-90 (D.C. Cir. 1987) (per curiam)
(quoting Fogel v. Chestnut, 668 F.2d 100, 109 (2d
Cir. 1981), cert. denied, 459 U.S. 828 (1982));
accord Northwestern Indiana Tel. Co. v. Federal
Communications Comm'n, 872 F. 2d 465, 470 (D.C. Cir.
1989), cert. denied, 493 U.S. 1035 (1990). The
corollary to this rule is that a district court
cannot, on remand, reconsider issues explicitly or
implicitly decided "at an earlier stage of the
litigation and not raised on appeal." Palmer v.
Barry, 794 F. Supp. 5, 7 (D.D.C. 1992), aff'd, 17 F.
3d 1490 (D.C. Cir. 1994).
In this case, defendants seek to evade the prior
rulings in this case by raising an issue that they
had every opportunity to raise, but failed to raise
in two prior appeals. In the first appeal, two
central issues were the scope of the APA and the
Federal Records Act. Conceding that it was an
agency, the NSC argued that its recordkeeping
practices were exempt from judicial review because
these practices were "agency action [that] is
committed to agency discretion by law." 5 U.S.C.
' 701(a)(2) (emphasis added); Exhibit A16, Brief for
Appellants in Armstrong v. Bush, at 15-16. The
Court of Appeals rejected the NSC's arguments, held
that the NSC's recordkeeping guidelines were subject
to judicial review under the APA, and remanded the
case for this Court to determine whether the NSC's
guidelines complied with the Federal Records Act.
An essential premise of this ruling was the
conclusion that the NSC is an "agency" under the APA
and the Federal Records Act -- a conclusion that
defendants never disputed.
Moreover, on remand and during the second
appeal, the NSC never contested that it is an
"agency" and that it is obligated to preserve
records in accordance with the Federal Records Act.
Instead, the NSC maintained that its guidelines were
not "arbitrary and capricious" under the APA. Both
this Court and the Court of Appeals found that NSC's
guidelines failed to satisfy the requirements of the
Federal Records Act. Armstrong v. Executive Office
of the President, 1 F. 3d at 1283-88. Now, however,
defendants maintain that both courts' rulings
concerning the NSC's guidelines were unnecessary and
improper because the NSC is not an "agency," and the
NSC's destruction of records is immune from review
by the courts or the Archivist because the NSC's
records are governed exclusively by the Presidential
Records Act -- even though defendants never raised
such a claim before.
Nothing in the remand to this Court justifies
defendants' current effort to nullify the Court of
Appeals' prior rulings in these two appeals. The
remand directs this Court "to determine whether the
challenged NSC and OSTP guidelines inaccurately
classify some documents as presidential records." 1
F. 3d at 1296-97. Rather than defending the
"challenged" guidelines, defendants now attack all
of the prior rulings over the last five years with
respect to the NSC by asserting that none of the
NSC's records are subject to the Federal Records Act
and, therefore, they may be destroyed with impunity.
Parties should not be permitted to
"opportunistically, after so much litigation . . .
switch their position" and contest issues that they
previously conceded, as defendants attempt to do
here. United States v. Western Elec. Co., 969 F. 2d
1231, 1241 (D.C. Cir. 1992). Moreover, as noted
above, over the past five years, defendants have
done more than concede the legal issue of whether
the NSC is an "agency." The defendants have also
affirmed as a fact in testimony, documents, the
Joint Statement of Facts, and responses to requests
for admission, that the NSC acts as an agency. See
supra -. Thus, defendants' current argument that
the NSC is not an "agency" compels defendants to
impeach their prior statements to this Court and the
Court of Appeals, which repeatedly attest that the
NSC performs both advisory and "agency" functions.
Accordingly, under the law of the case doctrine,
defendants' argument is waived and should be
rejected for that reason alone. The Court, however,
may also exercise its discretion to reject
defendants' argument for lack of merit. See, e.g.
Palmer v. King, 17 F. 3d at 1496; Pickus v. United
States Board of Parole, 507 F. 2d 1107, 1110 (D.C.
Cir. 1974). As we show below, the evidence that the
defendants are wrong on the merits is overwhelming.
II. THE NSC IS AN AGENCY.
Although the Federal Records Act of 1950 does
not provide its own definition of "agency," the 1946
APA defines "agency" to encompass "each authority of
the Government of the United States." 5 USC
' 551(1). The FOIA incorporates the APA definition,
and adds that "agency" "includes any executive
department . . . or other establishment in the
executive branch of the Government (including the
Executive Office of the President)." 5 USC
' 552(f). The legislative history, however,
provides that "[t]he term 'Executive Office of the
President' is not to be interpreted as including the
President's immediate personal staff or units in the
Executive Office whose sole function is to advise
and assist the President." H.Rep. No. 1380, 93d
Cong., 2d Sess. 15 (1974), 1974 U.S.C.C.& A.N. 6285,
6293; see Armstrong v. Executive Office of the
President, 1 F. 3d at 1295 (summarizing test for
identifying "agencies").
As we show below, the NSC is an agency under
this definition because (A) it is an "unit" or
"establishment in the executive branch," 5 USC
' 552(f), distinct from the President and his
immediate personal advisors; and (B) it does not
function solely to advise the President but, rather,
(1) issues regulations and adjudicates disputes; and
(2) performs additional functions in which it
exercises the "authority of the Government of the
United States." 5 USC ' 551(1).
A. The NSC Is An Establishment In The Executive
Branch.
In the context of the federal records statutes,
"agency" applies to "units" or "establishments"
rather than individuals. The President is not an
"agency,"3 and the FOIA's definition of "agency"
applies to "establishments in the executive branch"
including "units" of the EOP, but excludes the
President's immediate personal advisors.4 In Meyer
v. Bush, 981 F.2d 1288, 1296 (D.C. Cir. 1993), the
Court of Appeals held that the statutory language
providing that an agency is an "'establishment in
the executive branch'. . . requires a definite
structure for agency status." Thus, the Court held,
a "Task Force" of cabinet officers, created by the
President to serve as "the functional equivalents of
assistants to the President," was not an "agency"
under the FOIA because it lacked the staff or
structure necessary to "be regarded as an
'establishment' with independent authority." Id.
In asserting that the NSC is not an agency,
defendants rely heavily on Meyer v. Bush and seek to
personify the NSC by contending that the NSC, its
committees, and its staff should be regarded as an
alter ego of the President or his immediate
advisors, rather than a distinct "unit" or
"establishment" in the Executive Branch.5 These
arguments, however, are fatally flawed because, as
we show below, the NSC is not a personal extension
of the President, but an organization created by
Congress. Moreover, the NSC has a separate staff,
definite structure, and all the other attributes
that the Meyer Court stated characterize an
"agency."
First, the NSC is established by a congressional
statute, not unilateral executive action. In Meyer
v. Bush, the task force of cabinet officers which
the Court of Appeals held was not an "agency" was
created by the President through executive order
and, thus, could be (and, in fact, was) deactivated,
modified, or abolished by the President acting
alone. See 981 F. 2d at 1290. In contrast, the NSC
cannot be altered or abolished by the President, and
has existed in every presidential administration
since World War II because Congress has mandated
that "[t]here is established a council to be known
as the National Security Council." 50 USC ' 402(a).
This statutory language leaves no doubt that the NSC
is the type of "establishment" that is subject to
the federal records laws if it exercises the
authority of the federal government.6
Moreover, the statute not only "establishes" the
NSC, but also controls, in substantial part, its
composition and structure. The statute directs that
particular officials shall be members of the NSC, 50
USC ' 402(a), (e), (g), and Congress has, from time
to time, amended the provisions on membership.7 In
addition, the statute lists functions of the
Council, and even mandates the creation of
subordinate entities within the NSC. See 50 USC
' 402(a), (b), (f).
Thus, in creating the NSC, Congress established
a distinct legal entity which is not solely a
creation of the President or his advisors.
Defendants are correct in observing that,
independent of the National Security Act, the
President has the authority to select a group of
officials, advisors, and staff to coordinate
national security policy. Defs' Mem. at 41. If the
President were to do so, however, the group he
convened would not be the NSC. When the President
assigns tasks to the NSC, its committees, and its
staff, he assigns tasks to a particular set of
officials, advisors, and staff whose legal identity
is defined by statute.
Second, in Meyer v. Bush, the Court of Appeals
identified the existence of a separate staff and
resources as one of the attributes of an "agency,"
and the NSC has its own staff and budget. Unlike
the group of advisors at issue in Meyer v. Bush, the
NSC is not "simply a partial cabinet group." 981 F.
2d at 1296. In the National Security Act of 1947
Congress provided that the NSC "shall have a staff
to be headed by a civilian executive secretary." 50
USC ' 402(c). Since 1947, the size and functions of
the staff have become quite extensive. During the
Reagan, Bush, and Clinton Administrations, there
have been approximately 150 individuals on the NSC
staff, including approximately 70 professionals.
Exhibits A20-21, Response to Inter. No. 2. The
professional staff are experienced policy experts,
detailed or recruited from among the most senior
agency, military, and foreign service officers in
the government. Deposition of William Itoh, at 8:2-
9:19. Moreover, the NSC has a separate budget,
which now totals nearly $6 million. Exhibit A8.
Thus, the NSC plainly has the separate staff and
resources to function as "an independent actor in
the executive branch." Meyer v. Bush, 981 F. 2d at
1296.8
Third, the NSC also has the "definite structure"
the Court of Appeals found is necessary for "agency
status" in Meyer v. Bush, 981 F. 2d at 1296. The
organizational charts for the NSC over the past
three administrations show that the staff is
organized into separate offices responsible for
particular regions (such as, European Affairs or
Asian Affairs), or functional issues (such as
Intelligence or Arms Control). Exhibits A2-6.
These staff directorates not only advise and assist
the President, but also coordinate the activities of
other agencies to ensure "timely implementation of
U.S. policy decisions in these areas." Exhibits A9-
10, 6 4.
Moreover, the NSC operates through a three-
tiered hierarchical structure of committees.
Multiple "interagency working groups" or
"coordinating committees" responsible for particular
issues report to a "Deputies Committee," which, in
turn, reports to a "Principals Committee," which
reports to the Council itself. See Exhibits A1 and
A4 (organizational charts); Defs' Exs. 15, 17 (1989
and 1993 Presidential Directives on National
Security Council Organization). In the current NSC
structure, the NSC Deputies' Committee authorizes
and directs the subordinate working groups, which
"convene on a regular basis -- to be determined by
the Deputies Committee -- to review and coordinate
the implementation of Presidential decisions in
their policy areas." Defs' Ex. 17, at 4. The NSC
currently has twenty-five separate interagency
working groups operating within this structure, and
the committee structure in prior years was equally
(if not more) intricate. See Exhibit A22, NSC
Response to Inter. I4. The organizational charts
and directives describing this bureaucracy vividly
show that defendants' assertion that the NSC lacks
the type of structure associated with an agency,
Defs' Mem. at 44, is frivolous.
Fourth, the legal authorities that assign duties
to the NSC recognize that it is an "establishment"
independent of the President or his advisors. The
language of the National Security Act of 1947
certainly does not treat the President and the NSC
as synonymous, but provides that the NSC is a
separate entity that, like other agencies, is
subject to the direction of the President. 50 USC
' 402(b). The National Security Act, Executive
Orders and regulations, which are discussed in more
detail below, also address the powers of President,
the NSC, and the National Security Advisor
separately. See, e.g. 50 USC ' 403-3(c)(6), (d)(5)
("the President or [NSC]" may direct); 47 CFR
'' 211.1(b), 213.0(b) (President's authority is
"delegated to" NSC). Moreover, when the NSC issues
regulations and decisions, it acts in its own name,
and not in the name of the President or an advisor.
See Exhibits B1-B3; Exhibit B23, B25-27.
Finally, defendants' claim that the NSC and the
President are alter egos because the President
chairs the meetings of the NSC is without merit. By
defendants' own account, the NSC's staff's role in
assisting the President is distinct from its work in
assisting the NSC because consideration of an issue
by the NSC is governed by special procedures. See
Exhibit A12 at 5; Exhibit A13 at 3. Moreover, the
NSC's intricate hierarchical system of staff and
committees is designed to resolve issues, if
possible, without "requiring the President's
participation." Defs' Ex. 17, PDD 2 at 2. Thus,
many directives and regulations do not assign
responsibility to the committee of Cabinet officers
chaired by the President, but to particular
subordinate committees within the NSC, or
specifically to the NSC staff. See, e.g. Exhibit
B50, 15 CFR Part 778, Supplement No. 1, Part F, ' 1;
Exhibit B1, 32 CFR ' 2101.41. These procedures
result in "[r]eferral to the President" only if the
issues cannot be settled within the NSC's committees
and procedures. Exhibit 52, 49 Fed. Reg. 20780
' 5.a(iv); see also Exhibit B56, NSDD 188, at 2. As
the Justice Department acknowledged over fifteen
years ago, "the NSC is a body having functions,
power, and authority of its own and is not simply an
alter ego of the President." Defs' Ex. 24, at 204
(italics in original).
B. The NSC Performs Agency Functions.
The APA "confers agency status on any
administrative unit with substantial independent
authority in the exercise of specific functions."
Soucie v. David, 448 F. 2d at 1073. In Soucie, the
Court of Appeals recognized that agency functions
can be manifested in two ways. The APA definition
of "agency" includes both (1) entities that exercise
authority through the rulemaking and adjudication
functions described in the APA; and (2)
"administrative entities that perform neither
function" but investigate, evaluate, recommend, or
otherwise exercise governmental authority. Id. at
1073 & n. 15.
The NSC exercises "agency" authority in both
ways. In the discussion below, we first show how
the NSC exercises governmental authority through
rulemaking and adjudication. Second, we review
seven areas in which the NSC exercises authority to
show that the NSC not only performs traditional
rulemaking and adjudication, but also exercises
independent authority by performing other agency
functions.
Consideration of all of these areas and
functions, of course, is not necessary to resolve
this case. Because an EOP component is an agency
unless its sole function is to advise and assist the
President, if the Court concludes that the NSC
exercises authority as agency in any one of the
areas discussed below, it is an "agency" under the
federal records laws. Ryan v. Department of
Justice, 617 F.2d at 788 ("Once a unit is found to
be an agency," it is considered an agency even when
engaged in presidential advisory functions). The
evidence that the NSC is an agency, however, is
overwhelming because the NSC has been given
authority in multiple areas, and exercises that
authority through a wide variety of specific
functions.
1. The NSC Exercises Governmental Authority
Through Rulemaking And Adjudication.
Defendants acknowledge, as they must, that
entities that have the authority to take action
affecting the legal rights and obligations of
individuals, "'particularly by the characteristic of
rule-making and adjudication,'" are "agencies" under
the APA. Defs' Mem. at 60-61 (quoting Lombardo v.
Handler, 397 F. Supp. 792, 795 (D.D.C. 1975)).
Thus, we begin by showing that the NSC is an agency
because it performs rulemaking and adjudicatory
functions.
a. Rulemaking.
Under the APA, agencies may issue rules in many
forms, but the most important rules are the agency
regulations published in the Code of Federal
Regulations because, by statute, the Code is limited
to agency documents "having general applicability
and legal effect." 44 USC ' 1510 (a) (emphasis
added). Thus, the regulations published in the Code
are presumed to be rules in which the agency has
exercised its legislative power to adopt binding
norms that have the force and effect of law. Brock
v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 539
(D.C. Cir. 1986) (Scalia, J.); accord American
Mining Congress v. Mine Safety and Health Admin.,
995 F.2d 1106, 1109, 1112 (D.C. Cir. 1993).
The NSC has repeatedly issued such regulations.
Both the FOIA and the Privacy Act require that
"agencies" promulgate regulations to implement their
provisions. See 5 USC '' 552(a)(4), 552a(f). Under
these statutes, the NSC has issued regulations on
the procedures and fees for FOIA requests, Exhibit
B1, 32 CFR Part 2101, and the NSC has promulgated,
after notice and comment rulemaking, regulations
defining the rights of individuals to obtain NSC
records under the Privacy Act. Exhibit B2, 32 CFR
Part 2102. In addition, the NSC has promulgated
special regulations on "public access to documents
that may be declassified," which govern the release
of national security information that "is owned by,
produced for or by, or is under the control of the
NSC." Exhibit B3, 32 CFR Part 2103. As we discuss
further below, these regulations and the NSC FOIA
regulations not only govern requests addressed to
the NSC, but also establish legal rules for the
public access to records held by other agencies.
See infra at .
In addition, the NSC, in conjunction with the
Office of Science and Technology Policy ("OSTP") has
issued regulations on telecommunications and
emergency preparedness. Exhibit B6, 47 CFR Parts
201-216. Under Executive Orders Nos. 12,046 and
12,472, the President has assigned responsibilities
for ensuring that telecommunications services are
available and properly allocated during a national
emergency to the NSC, the OSTP, and various other
agencies. See Exhibits B35, B36. Both of these
Executive Orders specify that the agencies "may
issue such rules and regulations as may be necessary
to carry out the functions assigned" by the Orders.
Exhibit B36, Exec. Ord. 12,472, ' 4(a); Exhibit B37,
Exec. Ord. 12,046, ' 6-301.
Executive Order No. 12,046 delegated to the NSC
the President's authority to establish priorities
for users of telecommunications services in the
event of a national emergency. Exhibit B4, 47 CFR
'' 211.1(b), 213.0(b). Under this authority, the
NSC issued a circular defining precedence
designators and procedures for giving priority to
emergency communications on public correspondence
telecommunications systems, and this NSC circular
was codified as regulations in 1978. Id., 47 CFR
' 213.1(b). Moreover, these regulations, invoking
authority delegated to the NSC, also prescribe
priorities for the use of private line
telecommunications. Id., 47 CFR Part 211. These
regulations affect private parties because they
govern the conduct of private common carriers
operating telecommunications systems, and non-
Government users. Id. '' 211.3(a), 211.5, 213.2(b),
213.5. Moreover, the regulations confer ongoing
authority on the NSC by requiring NSC approval of
requests by industrial and commercial users for
restoration of telecommunications services, and
giving the NSC authority to modify assignments. Id.
' 211.6(c), (f).
Executive Order 12,046 also assigned to the NSC
the responsibility for "[c]oordinanting the
development of policy, plans, programs and standards
for the mobilization and use of the Nations
telecommunications resources in any emergency."
Exhibit B35, ' 4-301; Exhibit B5, 47 CFR ' 201.4.
Accordingly, in 1979, the NSC and OSTP jointly
issued regulations codifying the Federal
government's telecommunications preparedness policy.
See Exhibit B5. These regulations set forth the
objectives and policies of emergency preparedness
planning, id. '' 202.0-202.1, and also specified the
criteria and standards to be used by government and
industry to plan for restoration of
telecommunications in the event of an emergency. Id.
'' 202.2-202.3. In 1990, the NSC and OSTP again
promulgated regulations under Title 47 to update
Parts 201 and 202 to reflect changes made by
Executive Order 12,472. See Exhibit B6. In
addition, the 1990 regulations revised the other
rules on telecommunications priorities to reflect
"current [national security and emergency
preparedness] telecommunications procedures." Id.,
55 Fed. Reg. 51056.
The NSC is also responsible for approving
regulations issued in the name of other agencies.
Under Executive Order 12,356, the Information
Security Oversight Office ("ISOO") promulgates
directives governing agency procedures for
classifying, declassifying and safeguarding national
security information which are "binding on the
agencies," but these directives are "subject to the
approval of the National Security Council." Exhibit
B15, ' 5.2(b). Thus, although the NSC did not draft
the ISOO regulations codified at 32 CFR Part 2001,
the NSC's approval was required for the regulations
to take effect. See Exhibit B7, 47 Fed. Reg. 27836.
Moreover, each amendment to these regulations has
required approval of the NSC before publication in
the Federal Register and, ultimately, the Code of
Federal Regulations. See Exhibits B8-9. The record
concerning these ISOO regulations also makes clear
that this authority is not exercised by the
President, but by the NSC. NSC approvals of the
ISOO regulations and amendments are signed by the
Executive Secretary of the NSC, the official who, by
statute, is the head of the NSC staff. See Exhibit
B9.
* * *
The regulations cited here simply represent the
most visible and pronounced exercise of the NSC's
rulemaking authority because these regulations go
beyond mere statements of policy or interpretations,
and constitute rules that have the force and effect
of law. Brock v. Cathedral Bluffs Shale Oil Co.,
796 F.2d at 539. As we discuss further below, the
NSC is also responsible for issuing policy guidance
on implementing national security policy which, even
if it does not rise to the level of a regulation, is
nevertheless a "rule" under the APA because it is
"designed to implement, interpret, or prescribe law
or policy." 5 USC ' 551(4); American Mining Congress
v. Mine Safety and Health Admin., 995 F.2d at 1109-
11 (discussing rules in the form of policy and
interpretive statements).
b. Adjudication.
In addition to making general rules, agencies also
exercise legal authority by adjudicating individual
matters or disputes. The NSC's performance of
adjudicatory functions is most visible in its
decisions granting or denying requests for
declassification. These decisions clearly affect
the legal rights of the individuals in specific
matters. By refusing to declassify information, the
NSC forecloses public access to the information, and
makes those individuals who have access to the
information subject to civil and criminal penalties
if they reveal it. See 18 USC ' 798; 32 CFR
' 2003.20(h)(3).
The NSC exercises unusually broad authority over
requests for declassification. Like other agencies,
the NSC staff have authority to review the
classification of "[m]aterial originally classified
by a properly authorized" member of the agency and
maintained under its control. See Exhibit B1, 32
CFR ' 2101.41(a)(1); see also B15, Exec. Ord. 12,356
' 3.4(a), (f)(2) (originating agency is responsible
for mandatory declassification review). But the NSC
Staff is also responsible for declassification of
records of other agencies in which there is an "NSC
interest." See Deposition of David Van Tassel Dep.
at 14:11-20. Thus, the NSC's regulations provide
that the "NSC Staff will have primary and
authoritative review responsibility for" FOIA
requests for material originally classified by
another agency if the material was "produced for and
processed by the NSC Staff," or if the material
contains "[v]erbatim or extensively paraphrased NSC
material." Id. ' 2101.41(a)(2), (a)(4). In
addition, the NSC Staff performs classification
reviews for materials that discuss activities of the
President or the National Security Advisor, even if
the materials are held by, and requested from, other
agencies. See Deposition of David Van Tassel at
14:11-20; 35:15-36:10. Accordingly, the regulations
of other agencies mandate that FOIA requests for any
NSC or White House documents in the agencies'
custody be referred to the NSC Staff for a
determination of whether the records will be
released or withheld. See, e.g., Exhibit B18, 32
CFR ' 286.7 (Sec. of Defense's records), ' 518.26
(Army records), ' 701.8(i) (Navy records).
Under this authority, the NSC Staff adjudicates
nearly 500 FOIA requests and 1,000 mandatory
declassification review requests each year.
Deposition of David Van Tassel at 23:19-24:18. Only
the Department of Defense adjudicates a higher
number of mandatory review cases. Indeed,
approximately one out of every four of the mandatory
review decisions made by all government agencies in
fiscal year 1993 was made by the NSC. Exhibit B17
(NSC responsible for 924 of 3,911 actions). The
NSC's determinations are "final" to the extent that
no other agency has authority to review its
decision, and a disappointed requestor's only appeal
is to the courts.
The NSC also has authority to review and
overturn declassification decisions made by other
agencies. Any decision by the Archivist concerning
classification of information originated by the
President or White House Staff may be appealed to
ISOO, and ISOO's decision may be appealed to the
NSC. Exhibit B15, Exec. Ord. 12,356 ' 3.4(b);
Exhibit B18, 22 CFR ' 9.16. As a result of such
appeals, the NSC staff has repeatedly reviewed and,
on several occasions, has reversed the
determinations made by ISOO or the Archivist.
Exhibit B23. In addition, if ISOO challenges an
agency's decision to classify information, the NSC
is responsible for deciding any appeal by the
agency. Exhibit B15, Exec. Ord. 12,356, ' 3.1(c).
This appellate authority has been incorporated into
numerous agency regulations governing
declassification review. See, e.g., Exhibit B18, 14
CFR ' 1203.603, 22 CFR ' 9.14; 28 CFR ' 17.33.
Declassification reviews and appeals are not
decided by the President or Presidential advisors,
but by a division of the NSC Staff which has
"primary and authoritative review responsibility"
concerning these declassification determinations.
32 CFR ' 2101.41; see also Exhibit 21, Reger Aff. 66
8-12 and Exhibit 22, Tilley Dec. 6 3 (describing NSC
offices responsible for classification review).
Moreover, in adjudicating these requests, the NSC
staff clearly is not acting solely to advise and
assist the President, but to fulfill statutory
obligations and to assist other agencies. The
hundreds of declassification determinations made by
the NSC Staff each year are made in response to (i)
requests by private parties under the FOIA or the
Privacy Act, or arising from research at the
National Archives; (ii) requests for prepublication
review of manuscripts prepared by current and former
government employees, or by government historical
offices; (iii) efforts by other agencies to collect
and/or publish records for government prepared
histories, such as the official documentary history
published by the State Department, the Foreign
Relations of the United States; (iv) government-wide
projects to declassify records on particular topics,
such as Prisoners of War or the assassination of
President Kennedy;9 (v) government litigation that
involves classified materials, such as the Iran-
Contra and Manuel Noreiga cases, Exhibit B20, NSC
1991 FOIA Report at 4; and (vi) special requests by
Congress or other agencies for the release of
classified material. See generally Exhibit B22, 6
3; Deposition of David Van Tassel 9:14-14:10, 17:16-
20:12, 20:18-22:9.
The NSC also performs adjudicatory functions in
exercising its authority to grant individualized
waivers from otherwise mandatory regulatory
requirements. Since 1983, federal regulations have
required that "[a]ll employees of executive branch
departments, and independent agencies or offices,
and the employees of their contractors, grantees and
licensees" afforded access to classified information
must sign a standard form security agreement
prescribed by ISOO. See Exhibit B24, 32 CFR Part
2003.20(b). The standard form agreement sets forth
the terms of the contractual agreement between the
individual and the United States concerning access
to classified information. Id. ' 2003.20(a). If an
agency does not wish to use this standard form,
"[o]nly the National Security Council may grant an
agency's application for a waiver." Id. ' 2003.20(d)
(now codified at 32 CFR ' 2003.20(k) (1993)). Under
this regulation, agencies submit their proposed
alternative form and their justification for
requesting a waiver, and the NSC, after receiving
recommendations from ISOO and the Department of
Justice, determines whether the regulation will be
waived. Id.
The importance of the NSC's authority in this
area is illustrated by the NSC's handling of the
Central Intelligence Agency's ("CIA's") response to
this regulation. In 1985, a dispute arose between
the CIA and ISOO because the CIA took the position
that, under the National Security Act of 1947, it
was not subject to ISOO's regulations concerning the
standardized security agreement and, thus, was not
required to use ISOO's form. Exhibit B25. The
dispute was resolved by the Executive Secretary of
the NSC, who rejected the CIA's interpretation of
the National Security Act of 1947, affirmed ISOO's
authority over the CIA, and approved a waiver
allowing the CIA to use a special form. Id.
The authority to grant waivers under this
regulation is plainly exercised by the NSC, not the
President. Responses to waiver requests are signed
by the Executive Secretary of the NSC, and
defendants acknowledge that "[o]fficials of the NSC
approve or disapprove requests for waiver" by
agencies "without the personal involvement of the
President." Exhibit A26, Request for Admission
RFA3. Moreover, in ruling on waiver requests, the
NSC is plainly exercising the "authority of the
government of the United States" because its actions
determine the permissible terms for contracts
between the United States and individuals afforded
access to classified information, and allow agencies
with special security concerns, such as the CIA and
National Security Agency, to impose more stringent
conditions on access to classified information than
would otherwise be permitted. See Exhibit B25-27
(approval of requests for waivers submitted by the
NSA, CIA, and Federal Reserve Board).
NSC procedures also govern determinations on
export license applications that raise
nonproliferation and other national security issues.
The Secretary of Commerce is responsible for issuing
export licenses, subject to recommendations from
other departments or agencies. 50 USC App.
' 2409(a), (d). Under the Nuclear Non-Proliferation
Act of 1978, interagency review procedures have been
established for applications that propose to export
items that could be "of significance for nuclear
explosive purposes." 42 USC ' 2139a(c); Exhibits
50-53. Under these procedures, when the Department
of Commerce or the Department of Energy believes
that an export application "should be reviewed by
other agencies, or denied" because of such concerns,
the application is referred to the NSC-created
"Subgroup on Nuclear Export Coordination" for the
Subgroup's advice and recommendations. Exhibit 50,
15 CFR Part 778, Suppl. 1, Section 1.b.10
If there are interagency disagreements over the
license that cannot be resolved by the Subgroup, the
disagreement is to be resolved "in accordance with
applicable procedures of the" NSC. Exhibit B53, 56
Fed. Reg. 6701 ' 5.a(ii) (1991). Those NSC
procedures provide for appeals through a hierarchy
of interagency groups charged with recommending that
the Department of Commerce approve, deny, or return
the application. See Exhibit B54, at 34.11 If these
procedures fail to resolve the disagreement, the
license may be referred to the President as the
appeal of last resort, but most applications are
resolved by the NSC procedures without any
Presidential involvement. According to a recent
report, between 1988 and 1992, the Subgroup decided
1,140 licenses, and disagreements over more than 100
licenses were resolved through the NSC procedures
for higher-level review. Exhibit B54 at 36. On
June 30, 1994, President Clinton issued an Executive
Order to extend the effectiveness of these export
control regulations and procedures. See Exec. Ord.
12,923, 59 Fed. Reg. 3551 (July 5, 1994).
A 1990 National Security Directive, NSD-53, also
establishes procedures for NSC review of export
licenses for nonproliferation and other national
security or foreign policy concerns. Exhibit B55.
Under this Directive, an appropriate official from
an "interested department or agency may obtain
review by the National Security Council (NSC) of
foreign or national security policy issues
(including nonproliferation policy) . . . by
submitting a written request to the appropriate
chair of a [NSC] Policy Coordinating Committee."
Id. 6 3. Upon submission of such a request, the
Department of Commerce is required to suspend
further action on the application "for a period of
30 days while the policy issue is addressed in the
NSC process," and a written response is provided to
the Department. Id. Less than a year ago, the NSC
working group responsible for conducting these
reviews issued a "final action" on two export
licenses after conducting reviews under this
Directive. Exhibit B56.
These export license procedures make plain that
the NSC does not function solely to advise the
President. The NSC's recommendations and decisions
on export licenses are directed to the Secretary of
Commerce, not to the President, to enable the
Secretary to perform his statutory responsibility to
consider recommendations of other agencies before
acting on the license application. 50 USC App.
' 2409(f).12 Moreover, the fact that the Secretary
acts on the license after reviewing the NSC's
decision does not alter the "agency" character of
the NSC's role. The APA makes clear that an entity
whose decisions "are subject to review by another
agency," is still an agency, 5 USC ' 551(1).
Accordingly, the courts have consistently held that
governmental bodies that have authority to make
recommendations to an agency on a decision are
"agencies." See Grumman Aircraft Eng. Corp. v.
Renegotiation Board, 482 F. 2d 710, 714-15 (D.C.
Cir. 1973); Energy Research v. Defense Nuclear
Facilities, 917 F.2d 581, 582, 585 (D.C. Cir. 1990).
2. The NSC Exercises Governmental Authority In
Directing, Evaluating, Coordinating and Guiding The
Implementation of National Security Policies.
As noted above, Soucie emphasized that
"administrative entities that perform neither
[rulemaking nor adjudication] are nevertheless
agencies" under the APA if they exercise
"substantial independent authority" through other
means. In this section, we first review the Court
of Appeals' prior decisions concerning units within
the EOP such as the NSC, and then show that the NSC
exercises the very functions that the Court has
found makes EOP components "agencies."
a. Prior Court of Appeals Decisions On EOP
Agencies.
The Court of Appeals has applied the test for
"agency" status to establishments within the EOP
four times, finding that three of the four EOP
components at issue were agencies. In all four
cases, the EOP components at issue, like the NSC,
operated in close proximity to the President and
functioned, at least in part, to advise and assist
the President. Nonetheless, the Court of Appeals
held that an EOP component that advises and assists
the President is an "agency" if it also coordinates
federal programs, evaluates government activities,
issues guidelines or recommendations to other
agencies, or exercises similar authority.13
In the first case addressing this issue, Soucie
v. David, the Court found that the Office of Science
and Technology ("OST") was an agency because an
executive reorganization plan provided that, in
addition to advising the President, OST was
authorized "to evaluate the scientific research
programs of various federal agencies." 448 F. 2d at
1073. This "independent function of evaluating
federal programs" alone was enough to make OST "an
agency subject to the APA and the Freedom of
Information Act." Id. at 1075.
Seven years later, in Sierra Club v. Andrus, 581
F. 2d 895 (D.C. Cir. 1978), the Court of Appeals
applied the Soucie test to the Office of Management
and Budget ("OMB") and concluded that it too was an
"agency." Although OMB's primary statutory duty was
to prepare the President's budget, the Court held
that OMB was an agency because the preparation of
the budget was "an aid to Congress as well as an
instrument of presidential and policymaking control
over the executive bureaucracy," and OMB also had
"multitudinous other management, coordination and
administrative functions." Id. at 902.
In Pacific Legal Foundation v. Council of
Environmental Quality, 636 F. 2d 1259 (D.C. Cir.
1980), the Court of Appeals held that, although the
Council on Environmental Quality's ("CEQ's") sole
statutory function was to advise and assist the
President on environmental policy, it was
nevertheless an agency because "[s]everal executive
orders have expanded the Council's functions by
assigning it responsibilities for overseeing
activities of federal agencies." Id. at 1262. More
specifically, the Court found that CEQ was an
"agency" because the President had directed it to
"coordinate federal programs related to
environmental quality and to issue guidelines for
the preparation of environmental impact statements."
Id. (citing Executive Order 11,991). In addition,
the President had also given CEQ authority to "issue
regulations to federal agencies" and promulgate the
national contingency plan for removal of hazardous
substances. Id.
The only establishment within the EOP that the
Court of Appeals has concluded is not an "agency" is
the Council of Economic Advisors ("CEA"). Rushforth
v. Council of Economic Advisors, 762 F. 2d 1038
(D.C. Cir. 1985). The CEA, the Court found, was not
an agency because its functions had not been
expanded beyond its statutory duty of advising and
assisting the President on economic policies. Id.
at 1042. Unlike CEQ, no statute, executive order,
or presidential directive provided for the CEA to
perform additional functions, such as coordinating
federal policy or issuing guidelines. Id. at 1041,
1043. The Court emphasized, however, an EOP
component whose original or primary function is to
advise and assist the President is an agency if the
President has given the entity additional functions
because the law "requires entities having the
authority and ability to act" to be subject to the
FOIA. Id. at 1042 n.5.
These decisions were summarized in Energy
Research v. Defense Nuclear Facilities, 917 F.2d 581
(D.C. Cir. 1990), in which the Court of Appeals held
that a non-EOP unit, the Defense Nuclear Facilities
Safety Board, is an "agency" because it conducts
investigations, evaluates the standards of another
agency (the Department of Energy), and possesses the
authority to impose reporting requirements on the
Secretary of Energy:
Evaluation plus advice was enough to make the
Office of Science and Technology an "agency" in
Soucie. It also was enough in Pacific Legal
Foundation to render the Council on Environmental
Quality subject to FOIA. Soucie itself recognized
that an entity in the federal government which
"investigates, evaluates and recommends" is an
"agency."
Id. at 585 (citations omitted).
b. Areas In Which The NSC Exercises Agency
Authority.
Like the EOP components previously held to be
agencies, the NSC has been given authority to
coordinate, evaluate, direct, and exercise other
agency functions. This authority is typically
governed by executive orders and presidential
directives that set forth federal objectives and
policies in broad terms, and then give the NSC, or
particular NSC committees, the responsibility for
translating these broad goals into specific actions
by issuing policy guidance to agencies, or
coordinating the actions of agencies.
In this section, we discuss some of the most
important areas in which the NSC has been given such
authority. In their Motion, defendants ignore all
but the first two of these areas, intelligence and
declassification. As noted above, the NSC's
authority in any one of these areas is sufficient to
establish that it is an "agency."
(1) Intelligence.
As part of the comprehensive reorganization of
national security structure in the National Security
Act of 1947, Congress established the CIA "under the
direction of the National Security Council." Defs'
Ex. 2, ' 102(d). The statute gives the NSC
authority to determine which "additional services of
common concern" should be performed by the CIA, and
directs the CIA "to perform such other functions and
duties related to intelligence affecting the
national security as the National Security Council
may from time to time direct." Defs' Ex. 2,
' 102(d)(4), (5). The legislative history makes
clear that the statute confers authority on the NSC
to supervise and direct the CIA. Defs' Ex. 3 at
1494 (S. Rept. 239).
When Congress recently revised these provisions
of the National Security Act in the "Intelligence
Organization Act of 1992," P.L. 102-496, 106 Stat.
3188, '' 701-706 (1992), it made the NSC's statutory
authority over the intelligence community even
clearer. The new statutory language provides that,
when the Director of Central Intelligence provides
national intelligence to the President, heads of
departments and agencies, senior military commanders
and Congress, he acts "[u]nder the direction of the
National Security Council." 50 USC ' 403-3(a).
Moreover, the statute provides that, in his capacity
as head of the CIA, and in his capacity as head of
the intelligence community generally, the Director
shall perform intelligence functions "as the
President or the National Security Council may
direct." Id. '' 403(c)(6), 403(d)(5).
In addition to this statutory authority, the NSC
has been given authority over intelligence
activities by executive order and presidential
directive. Under Executive Order 12,333, the NSC is
"the highest Executive Branch entity that provides
review of, and guidance for and direction to the
conduct of all national foreign intelligence,
counterintelligence, and special activities, and
attendant policies and programs." Exhibit B11,
' 1.2(a). The Executive Order confirms the NSC's
authority under the National Security Act to direct
the CIA to "[c]onduct services of common concern for
the Intelligence Community," Id. ' 1.8(f). The
Executive Order also provides that the NSC "shall
issue such appropriate directives and procedures as
are necessary to implement this Order," which
governs not only the CIA, but military and other
federal agencies conducting intelligence activities.
Id. '' 3.2, 3.4(e). Moreover, when agencies of the
intelligence community and the Attorney General are
unable to agree on implementing procedures, the NSC
has the authority to establish procedures to resolve
the dispute. Id. ' 3.2.
Defendants argue that the NSC's authority over
intelligence is no more than "advising and
assisting" the President because "the President
certainly has the authority to supervise the
intelligence activities himself," and since the NSC
"has no independent power to do other than what the
President wishes," oversight by the NSC is oversight
by the President. Defs' Mem. at 47-48. Apart from
the fact that the NSC was created and originally
given authority over the CIA by statute, this
argument fails for two reasons.
First, defendants' argument rests on
interpreting the "assisting" language of the Soucie
test to include any action where an entity exercises
authority on the President's behalf. But the courts
have recognized that this broad construction of
"assisting" cannot be accepted because "[e]very
action taken by an executive branch official can be
described as 'assisting' the President." Meyer v.
Bush, 981 F. 2d at 1293. When an entity "assists"
the President by exercising his authority, that
entity is, by definition, an "agency" acting with
the "authority of the Government of the United
States." 5 USC ' 551(1).14
Defendants' claim that the NSC lacks
"independent authority" is accurate only in the
sense that, in exercising executive authority, the
NSC is responsible to the President, just as any
agent is accountable to its principal. The APA,
however, certainly does not require that an entity
must have the authority to violate the President's
wishes to be an agency. To the contrary, in their
prior brief in this action, defendants recognized
that the APA definition of "agency" is based on the
common law concept of agent. Exhibit A16, at 19
(citing Restatement (Second) of Agency ' 12 (1958)).
Because the President "is the principal in the
executive branch to whom agencies are responsible,"
id., all EOP agencies, including the OMB, the OSTP
and the CEQ, are answerable to the President when
exercising executive authority. As the defendants
observed in their prior brief, "[t]he Constitution
vests the executive Power in the President so that
any officer or institution that exercises such power
is his agent." Id. (citation omitted). Thus, when
the NSC directs intelligence and counterintelligence
activities, in defendants' words, as the "arm of the
President," it acts as the President's "agent," and
as an "agency" of the United States.
Second, defendants' contention that oversight by
the NSC is the same as oversight by the President is
an untenable fiction. Executive Order 12,333
directs the NSC to "establish such committees as may
be necessary to carry out its functions and
responsibilities under this Order." Exhibit B11,
' 1.2(a). Accordingly, the NSC has established
senior level committees, deputies committees, and
policy committees or working groups to review,
evaluate and provide direction for intelligence and
counterintelligence activities. See Exhibits B12-
14. For example, the NSC Senior Interagency Group
on Intelligence was given the authority to
"[e]stablish requirements and priorities for
national foreign intelligence" and otherwise direct
intelligence activities. Exhibit B12, at 5.
Moreover, a separate directorate of the NSC staff is
responsible for intelligence activities. Directors
of the NSC Intelligence Directorate have the
authority to request that the intelligence community
provide analyses for NSC work, and they deliver
instructions to the intelligence community on the
implementation of United States policy. Deposition
of George Tenet at 13:16-15:2, 9:2-13:13.
Moreover, defendants' reliance on Meyer v. Bush
in arguing that the NSC's authority over
intelligence operations does not make it an agency,
Defs' Mem. at 48, is misplaced. In Meyer the Court
of Appeals concluded that the Task Force was not an
"establishment" with independent authority because
it had no staff or structure, but depended on
"borrowing OMB personnel." 981 F. 2d at 1296. In
contrast, the NSC has a definite and, indeed,
elaborate structure of committees and staff to
oversee intelligence. See, e.g. Exhibit B14,
Directive on Organization of Senior Interagency
Group on Intelligence. Moreover, in Meyer the Court
of Appeals concluded that the Task Force was not an
agency because it could not give directions to
executive agencies directly, but could only act
through the Director of OMB. Id. at 1294. No such
intermediary is involved here; the NSC has, by
statute and executive order, direct authority over
intelligence activities.
(2) Protection of Sensitive National Security
Information. The NSC is charged
with providing "overall policy direction for the
information security program" under Executive Order
No. 12,356, which governs the responsibilities of
all federal agencies for classifying, declassifying,
and safeguarding sensitive national security
information. Exhibit B15, ' 5.1. In addition, the
NSC is responsible for providing overall policy
direction for the National Industrial Security
Program under Executive Order No. 12,829, which
establishes the United States' program for
controlling classified information that may be
released to current, prospective, or former
contractors. Exhibit B15, ' 102(a). A 1988
presidential directive also charges the NSC Senior
Interagency Group for Intelligence with
responsibility for formulating policy for the
government's National Security Operations Program,
providing guidance to agencies, and resolving
differences among agencies. Exhibit B31.
As discussed above, the NSC exercises its
authority in this area by approving regulations
governing the security practices of all federal
agencies, adjudicating agency requests for waivers
from these requirements, conducting nearly 1,000
mandatory declassification reviews each year, and
ruling on appeals from declassification decisions by
other agencies. See supra at , -. In addition,
under these Executive Orders the NSC is responsible
for deciding appeals from disputes between ISOO and
federal agencies over proper security practices or
inspections. See Exhibit B15, Exec. Ord. 12,356,
' 5.2(b)(3), (4); Exhibit B16, Exec. Ord. 12,829,
' 103(b)(3),(4). The NSC also approves the language
for ISOO security agreements, see Exhibits 28, 29,
and gives ISOO instructions on the issues to be
addressed when ISOO reviews agency security
practices. See Exhibit 30. In short, the Executive
Orders make the NSC the highest policymaking
authority in this area, and the administrative court
of last resort for both agencies and private
parties.
The NSC also exercises authority over national
security information in less formal ways. For
example, when Congress requested information on the
United States' assistance to Iraq prior to the
invasion of Kuwait, "the Legal Advisor of the NSC
convened meetings of the general counsels of the
affected departments and agencies," to coordinate
the agencies' response to Congress. Exhibit B33 at
2. Through these meetings, the agencies agreed to
restrictions on access to documents provided to
Congress, and agreed that, when an individual agency
recommended that a document should be released, the
recommendation would be reviewed by the NSC-convened
group for clearance. Exhibit B32. When asked to
describe how the NSC assumed this role, the NSC
acknowledged that the President had not asked that
the NSC perform this function in this instance.
Exhibit B33, at 3. Rather, the NSC replied that
participation in such meetings is consistent "with
the NSC's statutory mandate under 50 USC 402(b) to
coordinate the policies and functions of Executive
departments and agencies relating to national
security" and that NSC coordination of the responses
of federal agencies to congressional requests "is a
common and routine occurrence." Id. at 1.
Defendants acknowledge that the NSC performs
substantial functions in directing the government's
information security programs, and that these
function are performed by the NSC staff and
committees without the personal involvement of the
President. Nonetheless, they argue that these
functions do not make the NSC an agency because the
"NSC does no more than assist the President in
carrying out his constitutionally based powers" as
Commander-in-Chief. Defs' Mem. at 49-50. But the
Court of Appeals has already considered and rejected
the claim that entities that assist the President in
carrying-out his national security responsibilities
are not "agencies":
Documents of the Central Intelligence Agency and
the National Security Agency are compiled precisely
for the function of advising the President in the
solely Presidential role of Commander-in-Chief. Yet
in many FOIA encounters with NSC and CIA, we have
never held or seriously considered that they might
not be "agencies" when acting in this capacity.
Ryan v. Department of Justice, 617 F.2d 781, 788
(D.C. Cir. 1980). Indeed, if, as defendants
suggest, entities that exercise authority in
national security and military affairs were not
"agencies," the entire Department of Defense would
not be an "agency."
(3) Telecommunications. Exercising his authority
under the Communications Act of 1934 and various
other statutes, see 47 CFR ' 201.1, the President
has issued a number of directives and executive
orders concerning national security interests in
telecommunications. As in other areas, these
Executive Orders and presidential directives set
forth national objectives and policies in broad
terms, and then give the NSC or its committees the
authority to issue guidance and instructions
detailing how these goals will be achieved. The
NSC's authority in this area relates to both (A)
ensuring that telecommunications services are
available in national emergencies; and (B) ensuring
the security of sensitive information on
telecommunications and information systems.
(A) Emergency Telecommunications Planning.
In 1963, the President established a National
Communications System ("NCS") to link the
communications facilities of federal agencies and to
conduct the planning necessary to provide
communications in national emergencies. Exhibit
B34. In 1978, Executive Order 12,046, transferred
responsibility for directing the NCS to the NSC,
which was given responsibility for "policy direction
and development" and "coordinating the development
of policy, plans, programs, and standards for the
mobilization and use of the Nation's
telecommunications resources." Exhibit B35, 4-201,
202, 4-601; Exhibit B4, 47 CFR ' 201.4(a).
A more recent order, Executive Order 12,472,
divides telecommunications responsibilities among
the NSC, the OMB, and OSTP. Exhibit B36. Under
this Order, "the NSC is responsible for policy
concerning wartime and non-wartime functions," and
The NSC staff has routinely handled a number of
issues which would not normally be referred to the
Director, OSTP, unless a telecommunications
emergency were to arise. Examples include
Continuity of Government, interoperability within
the Executive Branch, and telecommunications
planning with foreign governments.
Exhibit B38, Memorandum from the Director of OSTP on
National Security Emergency Preparedness
Communications (March 10, 1989).
The language used in Executive Order 12,472
underscores that the NSC performs a dual role in the
emergency telecommunications. Some sections of this
Order describe the NSC's responsibility to "advise
and assist" the President on telecommunications
policy. See, e.g., Exhibit B36, ' 2(b)(1)a,
2(c)(1). Other sections of the same Order provide
that the NSC, with the Director of OSTP and the
Director of OMB, "shall determine what constitutes
national security and emergency preparedness
telecommunications requirements" for the NCS. Id.
' 2(c)(4). Accordingly, the directives governing
the NCS provide that the NSC, OSTP and OMB "will
provide overall policy planning and program
direction for [national security emergency
preparedness] telecommunications planning,"
including (i) reviewing and validating "Capability
Objectives"; (ii) reviewing and providing "program
planning guidance to the NCS regarding Deficiencies
and Priorities and Candidate Initiatives"; and (iii)
providing "direction for the implementation of the
National Level Program." Exhibit B37 at 3-4
(codified at 32 CFR ' 216, NCS Directive 2-1, '
8.a.(1)). Moreover, under Executive Order 12,472,
the NSC and the Director of OSTP are responsible for
establishing the arrangements for consultation among
the federal agencies to ensure that national
security and emergency preparedness issues are
identified and that such needs are met. Exhibit
B36, ' 2(d)(2). As discussed in detail above, the
NSC has exercised its authority over emergency
telecommunications by issuing regulations that,
among other things, establish telecommunications
priorities and retain for the NSC the authority to
resolve disputes and approve or deny requests for
assignment priorities. See supra -.
(B) Telecommunications Security. The NSC has
also been given authority under directives
concerning federal policy for protecting
telecommunications and information systems
transmitting classified or other sensitive
information. A 1977 presidential directive
outlining national policy for protecting
telecommunications services assigned responsibility
"for providing full implementation of this
directive" to the NSC Special Coordination Committee
and its Subcommittee on Telecommunications
Protection. Exhibit B39 at 3. This directive
remained in effect until 1984. Exhibit B41 at 11.
In the Bush Administration, responsibilities for
implementing telecommunications information system
security previously assigned to an interagency
Steering Group, see Exhibit B40, were assumed by the
NSC "Policy Coordinating Committee for National
Security Telecommunications." Exhibit B42A at 2. In
1990, this Committee was renamed the "Policy
Coordinating Committee for National Security
Telecommunications and Information Systems," with
responsibility to oversee the implementation of
federal policies for the security of both
telecommunications and information systems. Id. at 3
(emphasis added). This NSC Committee was also given
authority to oversee and resolve issues presented by
a subordinate working committee established "to
develop operating policies, procedures, guidelines,
instructions and standards as necessary to
implement" the President's directive on protecting
telecommunications and information systems. Id. at
3; see also Exhibit B42B (Committee's Charter).
This responsibility to implement and define the
operating policies in complex and technical areas,
such as telecommunications and information systems,
plainly reflects "agency" functions that go beyond
advising and assisting the President.
(4) Emergency Preparedness. As with
telecommunications, the President's authority for
emergency preparedness does not arise solely from
the Constitution, but is also governed by statute.
See, e.g., 50 USC App. '' 2061-2176 (Defense
Production Act of 1950); 50 USC App. '' 2251-2303
(Federal Civil Defense Act). Presidential
directives show that the NSC not only advises the
President on emergency preparedness, but that NSC
components have also been given authority to
establish policy and to implement the President's
directives:
Executive Order 12,656, which sets forth the
emergency responsibilities for executive agencies,
provides that the NSC "shall be responsible for
developing and administering" policy for national
security emergency preparedness. Exhibit B43,
' 101(a) (emphasis added).
Even before this Executive Order was issued,
responsibility for implementing programs for
emergency preparedness had been placed within the
NSC structure. The "Emergency Mobilization
Preparedness Board" had been charged with the
responsibility to "formulate policy and planning
guidance, coordinate planning, resolve issues and
monitor progress," on emergency mobilization
preparedness. Exhibit B45 at 12. In 1985, this
Board's authority was assumed by the "Senior
Interagency Group for National Security Emergency
Preparedness," within the NSC. Exhibit B46 at 2;
Exhibit B47. The directive establishing this Group
provides that, in addition to providing advice, it
shall "establish" policy objectives, "maintain" the
National Plan on National Security Emergency
Preparedness ("NSEP") that had been prepared by the
Board, and "oversee agency compliance with the
Plan." Exhibit B45, at 2-3. Only those issues that
cannot be resolved by this NSC Group "will be
referred to the [NSC] for Presidential decision."
Id. at 2.
A separate presidential directive
established a "Crisis Management Working Group"
within the NSC's structure to provide "[l]eadership
and oversight" for the "National Security
Information and Situation Management System."
Exhibit B49 at 3. The directive charges this
Working Group with the task of coordinating agencies
involved in this System, including ensuring that
"technical and operational capabilities" of the
System are maintained, and providing "for regular
exercising and testing of" this System. Id. at 4-5.
Another Executive Order extending the NSC's
authority in this area was issued just two months
ago. On June 3, 1994, President Clinton issued
Executive Order 12,919, which "delegates authorities
and addresses national defense industrial resources
policies and programs" under the Defense Production
Act of 1950, 50 USC App. '' 2062-2176, in which
Congress has given the President authority to take
various steps to ensure the availability of
strategic and critical materials. Exhibit B44,
' 101. Under the Executive Order, the NSC "is the
principal forum for consideration and resolution of
national security resource preparedness policy."
Id. ' 104(a). Moreover, the Order mandates that
"every Federal department and agency assigned
functions under" the Order (which includes the
Federal Reserve Board, the Department of Defense,
and the Department of Energy) must comply with NSC
policy and guidelines in performing the functions
set forth in the Order. Id. ' 104(c).
Thus, the NSC's role in emergency preparedness
is not limited to giving advice and assistance to
the President. Rather, the NSC is also charged with
providing "policy guidance" on how to implement the
policy, formulating plans, resolving issues, and
overseeing compliance. Such authority to translate
broad policies into specific government action is
precisely the type of authority that makes an entity
an "agency."
(5) Nonproliferation. As discussed above, the
procedures for processing export license
applications provide that the NSC is responsible for
evaluating nonproliferation and other national
security issues raised by such applications. See
supra at -. Private export licenses, however, are
only part of the government's nonproliferation
activities, which also include discouraging
commercial nuclear power technologies that create
materials that can be used in weapons, and
encouraging adherence to nonproliferation treaties.
See Exhibit 57. While the current presidential
directives concerning nonproliferation are
classified, an unclassified directive from 1977
shows that the NSC's Ad Hoc Group on
Nonproliferation was given authority to "implement
these policies to perform the necessary studies and
to coordinate department activities in the non-
proliferation field." Id. Just as OST's authority
to evaluate federal programs, and CEQ's authority to
coordinate federal programs, demonstrated that these
EOP components were agencies, the NSC's authority to
"implement" policies, perform "studies," and
"coordinate" government activities on
nonproliferation demonstrates that it is also an
agency.
(6) Arms Control Verification. In a 1982 National
Security Decision Directive, NSDD-65, President
Reagan emphasized the importance of establishing
effective mechanism to verify compliance with arms
control agreements, and created an NSC Committee on
Arms Control Verification and Compliance within the
NSC Senior Arms Control Policy Group. Exhibit B58.
Among other responsibilities, NSDD-65 charged the
NSC Verification Committee with:
"Monitoring on a continuous basis the
compliance situation in all arms control areas."
"Overseeing United States Government
preparation of periodic reports to Congress on
verifiability" that the Director of the Arms Control
and Disarmament Agency is required to provide to
Congress under Section 37 of the Arms Control and
Disarmament Act, 22 USC ' 2577(a).
Ensuring "the integration and prioritization
of ongoing START and INF verification and monitoring
work programs into a single coherent program of
work."
Id. at 2-3; see also Exhibit B59 (describing
Verification Committee's subcommittee structure).
Subsequent directives on arms control verification
confirm that the NSC Verification Committee did not
simply advise NSC, but also reported to Congress on
verification issues, and was responsible for
overseeing the implementation of measures to detect
arms control treaty violations.15
During the Bush Administration, the functions of
the Verification Committee were assumed by the NSC's
"Arms Control Policy Coordinating Committee"
("ACPCC"). Exhibit B66. Under presidential
directives implementing arms control treaties, the
NSC's ACPCC was given authority to "provide overall
policy guidance on" implementation of verification
protocols and inspections, and to provide "guidance"
or "instructions" to U.S. inspection teams. See
Exhibit B64 at 4; Exhibit B65 at 2. In addition,
the ACPCC established a "Subcommittee on
Verification and Compliance." Exhibit B66. This
Subcommittee was not only responsible for
considering verification policy issues, but was also
given authority to "provide guidance on
implementation of the policy." Id. Another
subgroup, the "Verification Technology Working
Group" was given authority "to coordinate
verification research and development efforts in
various agencies." Exhibit B67.
These responsibilities plainly make the NSC an
agency under the Soucie test. In Pacific Legal
Foundation, 636 F. 2d at 1262, the Court indicated
that the authority to coordinate and issue guidance
on environmental programs made CEQ an "agency," and
the Soucie Court found that the authority to
evaluate scientific research programs made OST an
"agency." 448 F. 2d at 1073. In the same way, the
authority of NSC committees to coordinate
verification research programs and to give ongoing
guidance to arms control verification inspectors
demonstrate that the NSC is an agency. Moreover,
just as the OMB is an agency because its work serves
as "an aid to Congress as well as" the President,
Sierra Club v. Andrus, 581 F. 2d at 902, the NSC is
an agency because it is responsible for responding
to issues raised by Congress and preparing reports
to Congress mandated by the Arms Control and
Disarmament Act. Advising and assisting the
President is not the NSC's sole function, because it
has also been given the responsibility to coordinate
the work of other agencies and report to Congress.
(7) "Public Diplomacy." The NSC is also responsible for
coordinating and directing the international
broadcasting and international public affairs
activities "designed to generate support for our
national security objectives." Exhibit B68. These
activities, known as "Public Diplomacy," include
"aid, training and organizational support for
foreign governments and private groups," id. at 2,
and overseas broadcast operations, such as the Voice
of America service operated by the United States
Information Agency. Id. at 3.
The NSC's role in these operations is reflected
in a 1983 directive which established a "Special
Planning Group" ("SPG") under the NSC with
responsibility for "overall planning, direction,
coordination and monitoring of implementation" of
these public diplomacy activities, and four
subcommittees charged with planning and coordinating
the activities of the government in particular
areas. Id. The directive makes clear that the
SPG's authority is principally directed toward the
activities of other federal agencies, not simply
assisting the President, because it explicitly
provides that "[p]ublic diplomacy activities
involving the President or the White House will
continue to be coordinated with the Office of the
White House Chief of Staff." Id. at 1. Moreover,
the NSC's role is not confined to giving advice to
the President on Public Diplomacy. Rather, the
SPG's standing committees are authorized to
coordinate and "to direct the concerned agencies,"
and the SPG itself is responsible for ensuring "that
a wide-ranging program of effective initiatives is
developed and implemented to support national
security policy, objectives and decisions." Id. at
1.
* * * *
This summary cannot provide a complete account
of the functions and authority exercised by the NSC
because many of the directives describing the NSC's
role and responsibilities, including virtually all
the current Administration's directives on the NSC's
role, have been classified. See Exhibit A22,
Response to Inter. I5. But the evidence discussed
above is more that enough to demonstrate that the
NSC is an agency because it does not function solely
to advise the President, but performs a wide variety
of functions in a wide variety of areas in which it
exercises the "authority of the Government of the
United States." 5 USC ' 551(1).
III. DEFENDANTS' CONSTITUTIONAL ARGUMENTS ARE
WITHOUT MERIT.
In their final argument, defendants contend
that, even if the NSC is an "agency" under the
governing law, this Court should hold that it is not
an agency in order to avoid constitutional issues.
Defs' Mem. at 60. But the canon that courts should
interpret statutes to avoid constitutional questions
does not apply unless the constitutional questions
presented are "grave and doubted." Rust v.
Sullivan, 111 S. Ct. 1759, 1771 (1991). No such
question is presented here because four
considerations show that defendants' constitutional
arguments are without merit.
First, the Court of Appeals has already rejected
defendants' arguments in Pacific Legal Foundation v.
Council on Environmental Quality, 636 F. 2d 1259.
In that case, the government maintained that the
Sunshine Act should be construed to provide that the
CEQ is not an "agency" when it meets to advise the
President in order to avoid constitutional
questions. The Court of Appeals rejected the
argument because the constitutional issues would
only arise if a particular CEQ meeting were closed
when the Sunshine Act mandated that it be open. Id.
at 1265. The same result applies here. Under the
Federal Records Act, even if the application of a
particular records preservation requirement to the
NSC raised constitutional issues, that would only
affect the constitutionality of that particular
requirement, and would not justify distorting the
definition of "agency" to exempt all of the NSC's
records from the federal records laws. Cf. Nixon v.
Administrator of General Services, 433 U.S. 425,
438-39 (1977) (constitutional challenges to proposed
regulations will not be considered in facial
challenge to the Presidential Materials Act). Thus,
no constitutional concerns warrant departing from
the general rule that the definition of "agency" is
to be given a "broad, inclusive reading." Pickus v.
United States Board of Parole, 507 F. 2d 1107, 1111
(D.C. Cir. 1974).16
Defendants' argument that application of the
FOIA to NSC records raises constitutional concerns
is plainly hypothetical because both sides agree
that the all of the records at issue in the FOIA
Count in this action must be released in accordance
with the FOIA. Defendants acknowledge that, even if
the NSC is not an "agency," the Presidential Records
Act requires that the records plaintiffs have
requested under the FOIA must be released "in
accordance with 5 USC ' 552 [the FOIA]," and all
special rights to withhold Presidential records have
been waived. Defs' Suppl. Statement at 6. Thus,
there is no genuine "case or controversy" with
respect to the application of the FOIA to records at
issue in this action because both sides agree that
these records must be released in accordance with
the FOIA.
Second, the exemptions to the FOIA and
limitations on judicial review foreclose defendants'
argument that the definition of "agency" must be
distorted to avoid constitutional issues.
Defendants claim that constitutional issues arise
because NSC records may include information on
national security deliberations that is too
sensitive to disclose. Defs' Mem. at 58. But the
FOIA protects such information from disclosure by
providing exemptions for national security
information and privileged deliberations. 5 USC
' 552(b)(1), (5). Indeed, in Soucie itself,
executive privilege considerations were present
because the report at issue had been created by the
OST to provide advice to the President. The Court
of Appeals concluded that such considerations did
not effect whether OST was an "agency," but were
relevant only to whether some statutory or
constitutional provision made the document exempt
from disclosure. 448 F. 2d at 1076, 1078.
Similarly, under the Federal Records Act, judicial
review is limited to assessing whether agency
guidelines are arbitrary and capricious, and does
not include direct review of the handling of
individual records. Armstrong v. Bush, 924 F. 2d.
at 294. Contrary to defendants' claims, such
limited review does not impose any "unconstitutional
intrusion" on the NSC's recordkeeping.
Third, affirming that the NSC is an "agency"
and, thus, is required to preserve its records under
the Federal Records Act only raises constitutional
issues if the President has a constitutional right
to direct that records concerning public business be
destroyed. No such right exists, however, because
the Supreme Court has made it clear that requiring
the preservation of records concerning government
business does not infringe upon any Presidential
prerogatives. In Nixon v. Administrator of General
Services, 433 U.S. 425 (1977), the Court held that
it was not unconstitutional for Congress to require
that the Archivist take custody of President Nixon's
records because "claims of Presidential privilege
clearly must yield to the important congressional
purposes of preserving the materials and maintaining
access to them for lawful governmental and
historical purposes." 433 U.S. at 454. Indeed, the
Supreme Court held that requiring the preservation
of these records was constitutional even if they
were the President's personal property, and even if
they contained personal information. Id. In
contrast, there is no question that the NSC records
at issue here concern government business and are
public property. Thus, there can be no question
that there is no Presidential privilege to direct
the destruction of records created and received on
the NSC's computers in the course of conducting
government business.
Moreover, it is important to note that the
connection between the President and the NSC records
at issue here is substantially attenuated. As
defendants acknowledge, the computer systems at
issue have never been used to communicate advice,
recommendations, or information directly to the
President. Exhibit A26, Request for Admission RFA2.
Nor have they been used to communicate advice,
recommendations, or information directly to a member
of the President's immediate personal staff outside
the NSC. Id. Instead, the computer records at
issue involve communications among 150 government
employees in an entity that was not created by the
President, but by statute. The Court of Appeals has
found no constitutional problem in holding that
records that are far more closely connected to the
President are "agency" records. For example, in
Soucie, 448 F.2d 1067, the Court held that the OST
was an "agency" even though OST was not created by
statute and the records at issue were created in
response to a specific request from the President.
Accordingly, the NSC records at issue here present
no constitutional question that requires distorting
the definition of "agency" adopted by the Court of
Appeals in Soucie and codified by Congress.17
Finally, the NSC's long history of recognizing
that it is an agency demonstrates that defendants'
argument that it would be unconstitutional to
conclude that it is an agency is wholly without
merit. For decades the NSC has treated its records
as being subject to the Federal Records Act,
including scheduling records for disposition with
the Archivist, without any constitutional conflict
arising. In addition, over the last twenty years
the NSC has processed hundreds of FOIA requests each
year, but has never been involved in any litigation
where it argued it was not an "agency" under the
FOIA. Exhibit A26, Admission RFP7. The NSC's
admissions during the Carter, Reagan, Bush, and
early Clinton administrations that it is an
"agency,"18 show that the current claim that it would
be unconstitutional for this Court to regard the NSC
as an "agency" is without merit.
Moreover, defendants' admission that other
components of the EOP are agencies shows that
defendants' constitutional arguments are
insubstantial. Defendants' claim that it is
unconstitutional to make an EOP entity headed by
senior White House advisor subject the Federal
Records Act and FOIA is equally applicable to the
OMB, the OSTP and the Office of the United States
Trade Representative. Yet defendants acknowledge
that each of these EOP components is an "agency" and
is subject to the FOIA and the Federal Records Act.
See 55 Fed. Reg. 46037 (Nov. 1, 1990); Exhibit A39.
Moreover, defendants' claim that the Constitution
prohibits making records "directly related to the
discharge of the [President's] Article II powers,"
subject to the federal records laws, Defs' Mem. at
58, is belied by the fact that it is well
established that records of the Departments of
Defense, State, and Justice concerning the discharge
of President's powers over military affairs, foreign
affairs, and appointment of judicial officers are
subject to the FOIA. See Ryan v. Department of
Justice, 617 F.2d at 788.
Ironically, defendants maintain that their claim
that the NSC is not an agency is supported by "the
historical tradition of the NSC maintaining
Presidential records." Defs' Mem. at 58. In order
to make this argument, however, the defendants
distort the facts concerning the NSC's "tradition"
in several critical respects.
First, defendants claim that the reason that NSC
records were treated as Federal was not that the NSC
acknowledged it is an agency but, rather, to promote
"continuity in the national security policy." Defs'
Mem. at 26, 56. This revisionist history is belied
by the fact that the NSC's recordkeeping guidelines
make no mention of "promoting continuity." Rather,
at the end of the administration, departing staff
were told that records concerning the activities of
the NSC could not be removed because such records
are "official government records not subject to the
Presidential Records Act." Exhibit A33 at 2 note *.
The NSC defined its "institutional files" were as
"those files that contain records created by the NSC
in the exercise of its agency functions," and, it
insisted that these files are best described as
"agency" records. Exhibit A25, Request for
Admission 87.
Second, far from being a venerable "tradition,"
the NSC's division of its files into Federal and
Presidential records was part of the EOP's larger
practice of deliberately disregarding judicial
precedents holding that it is improper for agencies
to treat their "advisory" records as "Presidential."
Despite the Court of Appeals' 1971 ruling in Soucie,
rejecting the claim that records prepared by an EOP
agency to advise the President are "Presidential"
rather than "agency" records, 448 F. 2d at 1075-76,
it continued to be "a common practice at EOP
agencies for the files reflecting the director's
role as the immediate advisor to the President" to
be treated as Presidential records. Exhibit A41 at
1. For example, from 1981 through 1993, the OSTP,
like the NSC, classified its records concerning
advice to the President as "Presidential" records,
despite recent rulings by the Court of Appeals
reaffirming Soucie's holding that this subdivision
of records was unlawful. See Ryan v. Department of
Justice, 617 F.2d at 788-89.19 Now that the Court of
Appeals has ruled that the EOP agencies'
classification of records is subject to judicial
review, none of the EOP agencies defend this
"tradition" of dividing the advisory and nonadvisory
records into Presidential and Federal Records in
defiance of the courts' rulings that this is
improper.20
Third, the NSC's practice of treating some
records as "Presidential" has never been governed by
a consistent standard but, rather, was subject to ad
hoc decisions and manipulation. In 1989, when the
National Archives staff reviewed the NSC's records,
they noted that the "NSC has not been consistent in
distinguishing institutional records from
presidential papers and personal/non-record files,"
and it "has, on occasion even, changed the status of
the same body of material." Exhibit A40, at 3.
Indeed, during the course of the review by NARA
staff, the NSC reversed position on some records,
declaring files that the NSC originally treated as
Federal records to be Presidential. Id. at 22. This
resulted in files containing "invaluable information
relating to NSC administrative history and
functions" being treated as Presidential rather than
Federal records. Id.
The NSC's persistent refusal to manage its
records in accordance with the Federal Records Act
should now come to an end. This Court should reject
defendants' claim that the NSC is not an "agency,"
and hold that, like all other agencies, the NSC is
obligated to preserve records stored on its
electronic communications systems in accordance with
the Federal Records Act. Under Count II of the
complaint, which challenges the NSC recordkeeping
guidelines as contrary to the Federal Records Act,
the Court should enter judgment declaring that the
NSC's guidelines classifying its records as
"Presidential" records are contrary to law, and the
NSC is subject to the prior injunctions and rulings
of this Court under the Federal Records Act.
Moreover, under Count III, which challenges the
Archivist's failure to perform her statutory
obligation to prevent the destruction of NSC
records, the Court should affirm that the
Archivist's obligations under the Federal Records
Act and under this Court's injunction apply to the
records of the NSC because the NSC is an "agency"
under that statute.
CONCLUSION
The Court should deny defendants' motion for
summary judgment on NSC Recordkeeping Claims,
declare that the NSC is an "agency" under the
Federal Records Act, and enter summary judgment for
plaintiffs on Counts Two and Three of Plaintiffs'
Third Amended Complaint.
Respectfully submitted,
_
Michael E. Tankersley
(D.C. Bar No. 411978)
Alan B. Morrison
(D.C. Bar No. 945063)
Public Citizen Litigation Group
2000 P Street, N.W., Suite 700
Washington, D.C. 20036
(202) 833-3000
August 8, 1994 Attorneys for Plaintiffs
1 See Armstrong v. Executive Office of the President, 930
F. Supp. 19 (D.D.C. 1993) (ordering preparation of Vaughn
index for previously printed materials); Stipulation and Order
66 1-4 (Jan. 27, 1994) (limiting scope of Count I and
requiring defendants to complete all decisions on withholding
or release of materials by December 15, 1994).
2 Statement of Hon. Warren Christopher, The National Security
Adviser: Role and Accountability, Hearings before the Senate
Committee on Foreign Relations, 96th Cong. 2d Sess. at 5 (1980).
3 Franklin v. Massachusetts, 112 S. Ct. 2767, 2775 (1992).
4 Kissinger v. Reporters Committee for Freedom of the Press, 445
U.S. 136, 156 (1980); National Security Archive v. Archivist, 909 F.2d
541, 545 (D.C. Cir. 1990).
5 See Defendants' Memorandum at 47 (asserting that, since the
President presides over the NSC, NSC oversight of intelligence activities
is oversight by the President); id. at 45 (because President has directed
one of his immediate advisors, the Assistant to the President for
National Security Affairs, to direct NSC process, NSC should not be
regarded as an agency).
6 Cf. Energy Research v. Defense Nuclear Facilities, 917 F. 2d 581,
583 (D.C. Cir. 1990) ("establishment in the executive branch" language
of the FOIA is plainly intended to encompass entities created by
statutes proclaiming that they are "establishments in the executive
branch.")
7 See 22 USC ' 2562 (Director of Arms Control and Disarmament
Agency shall attend all NSC meetings concerning arms control and
disarmament matters); Oct. 10, 1951, c. 479, Title V, ' 501(e)(1), 65
Stat. 378 (adding Director for Mutual Security to NSC); August. 10,
1949, c. 412 ' 3, 63 Stat. 579 (adding Vice President to NSC, removing
the Secretaries of military departments, and authorizing the President to
add, with the consent of the Senate, Secretaries and Undersecretaries of
other departments).
8 Indeed, in 1978, the Justice Department's Office of Legal Counsel
recognized that:

[T]he NSC must be considered an establishment because of its
99-member staff. . . The NSC and its staff are easily identifiable as a
body separate from other entities within the Executive Office of the
President. Money is appropriated for it and it "owns" its furniture,
fixtures, and supplies. It pays its employees, keeps their administrative
records, and handles its personnel matters. In short, it has a clear,
independent administrative status.

Defs' Ex. 24 at 198.
9 Exhibit B19, NSC 1994 FOIA Report, at 4 (NSC staff required to
conduct disclosure review under Executive Order 12,812 requiring
disclosure of POW/MIA materials, and under the President John F.
Kennedy Assassination Records Collection Act, P.L. 102-526, 106 Stat.
3443 ' 5).
10 The Subgroup on Nuclear Export Coordination referred to in
these procedures originated as a subgroup of the NSC Ad Hoc Group
on Nonproliferation. See Exhibit 51, 43 Fed. Reg. 25326, ' 4.
11 The names of the entities conducting review of Subgroup actions
have changed over time. Initially, disagreements in the Subgroup were
considered by the NSC Ad Hoc Group on Non-Proliferation. Exhibit
B51, 43 Fed. Reg. 25326, ' 5.a(ii) (1978). In 1984, the Ad Hoc Group
was replaced with the Interagency Group on Non-Proliferation and
Peaceful Nuclear Cooperation. Exhibit B52, ' 5.a(ii), 49 Fed. Reg.
20780 (1984). Subgroup determinations are now reviewed by the
Advisory Committee on Export Policy. Exhibit B53, 56 Fed. Reg.
6701; Exhibit B54, at 34, 36.
12 The President's statutory authority for prohibiting or curtailing
exports that may adversely effect national security, 50 U.S.C. App. '
2404(a), has also been delegated to the Secretary of Commerce. See
Executive Order No. 12,214, ' 1-101, 45 Fed. Reg. 29783 (May 2,
1980).
13 The decision in Meyer v. Bush, discussed above, did not address
the status of a component of the EOP because the Task Force at issue
did not have a separate staff or structure and was never organized as a
distinct entity within the EOP. See 981 F. 2d at 1296. In contrast, the
NSC and the four entities discussed in these Court of Appeals decisions
are distinct units of the EOP. See Defs' Ex. 4, Reorganization Plan of
1949.
14 See also Defs' Tab 24, Opinion of the Justice Department Office
of Legal Counsel at 201 n.9 ("'assist' must be read narrowly," because
"the function of all the units within the Executive Office, and those of
the Office itself is, in a broad sense, to assist the President." Thus,
units within the EOP cannot be viewed as "assisting" the President in
this context "when they perform substantive governmental functions,
even if the purpose of their authority is to perform such functions is to
enable them to fulfill a primary role of assisting (or advising) the
President.")
15 See, e.g., Exhibit B61 at 10 (Committee will submit
recommendations on issues of concern to the Administration and/or
raised by Congress); Exhibit B63 at 10 (Committee will oversee
analytical studies intended to resolve the outstanding issues relating to
estimating the yields of Soviet underground nuclear explosions).
16 In Pickus the Court of Appeals also rejected an argument that is
analogous to defendants' suggestion that "agency" can be construed as
not including the NSC because neither the statute nor the legislative
history "specifically delineate the entities which are encompassed."
Defs' Mem. at 61. The Court observed that "a great number of agencies
that unquestionably are covered" are not mentioned in the statute or
legislative history because "the bill was not drafted as one which dealt
with particular agencies by name, but rather as a regulation of particular
types of functions in which agencies of the Executive Branch generally
engage." Id. at 1111. Moreover, as the Justice Department itself has
observed, the House Report on the 1974 Amendments to the FOIA
explicitly mentions the NSC and "shows an unequivocal intention to
include the NSC in the FOIA definition of Agency." Defs' Tab 24 at
200; see also H. Rept. No. 93-876, 93d Cong., 2d Sess. 8 (1974) (listing
the NSC as one of the EOP entities the House contemplated would be
subject to the FOIA).
17 Of course, the conclusion that the NSC is an "agency" under
Soucie does not foreclose the possibility that certain records in the
physical possession of the NSC might be Presidential records. If
records are prepared at the direction of the President, the National
Security Advisor, or other presidential advisors for the specific purpose
of advising the President, those documents may be Presidential records
if they are not available on the NSC computer system or otherwise
retrievable by NSC staff, even if the staff played a role in drafting them,
and even if the documents are housed at the NSC. See Kissinger v.
Reporters Committee for Freedom of the Press, 445 U.S.C. at 156.
Conversely, even if a document is, in fact, prepared by the NSC for the
purpose of advising the President, that document becomes a Federal
record if it is available for the use of the NSC staff. Exhibit A42, Bevis
v. National Security Council, C.A. 85-2933, Order Remanding for
findings of fact on whether the NSC had control over the documents in
question (D.C. Cir. July 14, 1986).
18 See Defs' Tab 24 (Justice Department legal opinion concluding
that the NSC is an "agency"); Exhibit A13 (1986 NSC Memorandum in
Bevis v. NSC acknowledging that the NSC is an executive agency);
Exhibit A17 (letter by Deputy Legal Advisor acknowledging NSC is an
agency); Exhibit A39 (Memorandum by NSC Executive Secretary and
Legal Advisors acknowledging that NSC is an agency).
19 See Exhibit A41, 1981 OSTP Request for Records Disposition
Authority at 4-5, 6 9.
20 The OSTP has specifically changed its recordkeeping instructions
to recognize that, under Soucie, all of its records, including those created
to advise the President, are Federal records. See Defendants'
Supplemental Statement at 9 and Exhibit F.

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