The opinion of the court was delivered by: BRIEANT
Familiarity with prior proceedings in this FOIA action is assumed. See Weberman v. NSA, 490 F. Supp. 9 (S.D.N.Y.1980), remanded on appeal by an unpublished order of the Court of Appeals dated December 18, 1980. Pursuant to that latter order the case is now before this Court on remand for further proceedings pursuant to the mandate of the Court of Appeals.
Plaintiff describes himself as a serious historian, and author of a published work entitled "Coup D'Etat in America," interested in acquiring additional knowledge concerning an historical event of legitimate public interest; the assassination on November 22, 1963 at Dallas, Texas, of President John F. Kennedy. He seeks a copy of a document described by him as a telegram or message sent by Jack Ruby's brother, Earl Ruby, from Cobo Cleaners, 18135 Livernois, Detroit, Michigan to Havana, Cuba on April 1, 1962.
By the memorandum decision cited above, dated April 3, 1980, adhered to on reargument on June 4, 1980, the Court directed disclosure of whether or not the message referred to in the complaint exists, and if it does, that a copy be furnished to plaintiff.
In the course of those proceedings, this Court declined the Government's offer to submit an identified classified "Top Secret" affidavit of Michie F. Tilley, NSA's Director of Policy and Liaison ("the Top Secret affidavit") for review in camera. This "Top Secret" affidavit is represented as explaining in greater detail, the potential harm to national security that would arise if NSA were forced to disclose the 1962 telegram, or confirm or deny its existence in this case.
This Court declined as a matter of discretion to review the Top Secret affidavit on an ex parte basis, for reasons set forth at page 17 of 490 F. Supp. which the Court continues to regard as valid, and with which the reader's familiarity is assumed. These arguments, however, found little favor with the Court of Appeals, which held:
"(t)his court is convinced that an in camera review of the Top Secret Tilley affidavit is required. Although, in general, a decision to review documents in camera in FOIA cases is a discretionary one, 5 U.S.C. § 552(a)(4)(b), it appears that on the facts of this case, Judge Brieant abused his discretion. In FOIA suits where a party seeks information relating to NSA signals intelligence missions, "(h)arm could follow from the disclosure of any material that might help to identify the communications intercepted by NSA.' Hayden v. National Security Agency, 197 U.S. App. D.C. 224, 608 F.2d 1381, 1385 (D.C.Cir.1979). Thus, we find that the NSA supplied the district court with "as complete a public record as is possible,' Phillippi v. Central Intelligence Agency, 178 U.S. App. D.C. 243, 546 F.2d 1009, 1013 (D.C.Cir.1976). In these situations, therefore, it is "necessary and appropriate' to review the submitted affidavit in camera. Hayden v. National Security Agency, supra at 1385."
The Court of Appeals then "ordered adjudged and decreed that the matter is remanded .... for in camera consideration of the Top Secret affidavit submitted by NSA." This mandate was not received in the district court until January 23, 1981.
In the meantime, plaintiff moved by motion docketed January 9, 1981, originally returnable January 26, 1981 but submitted on February 5, 1981, for "an order permitting one of plaintiff's counsel (Mark H. Lynch, Esq.) to participate in the in camera examination." In support of that motion, attorney Lynch shows by his affidavit that, fortuitously he has been cleared in the past by "the government" for access to secret data under protective orders issued in prior unrelated First Amendment litigation, including United States v. Snepp, 444 U.S. 507, 100 S. Ct. 763, 62 L. Ed. 2d 704 (1980) and is currently cleared by the CIA for purposes, inter alia, of "negotiating alternative language" for manuscripts of certain unnamed former CIA operatives who seek clearances for publication from their former employer in the aftermath of the Snepp litigation.
In his memorandum of law submitted in support of the motion, plaintiff argues that this Court's concern with the "inherent unfairness of ex parte proceedings * * * * can be ameliorated in this case by permitting (Mr. Lynch) to participate in the examination of the affidavit, thereby preserving the adversarial process." The memorandum asserts that "There is no doubt that the Court has the authority to permit such participation, and it is clearly appropriate in this case."
I do not agree that the Court now has the power or authority to do other than as directed by the remand of the Court of Appeals. When that Court wrote "in camera" it meant "in camera," or privately, that is to say, ex parte. That they were wrong might well be argued, but that they are in charge may not be gainsaid by a trial judge, who has the duty to comply with the clearly stated directions of a higher court. Crane Co. v. American Standard, Inc., 490 F.2d 332, 341 (2d Cir. 1973) and cases cited therein. See Eutectric Corp. v. Metco, Inc., 597 F.2d 32, 34 (2d Cir. 1979); United States v. Cirami, 563 F.2d 26, 32-33 (2d Cir. 1977); United States v. Fernandez, 506 F.2d 1200, 1202-03 (2d Cir. 1974); Munro v. Post, 102 F.2d 686, 688 (2d Cir. 1939).
The Government also denies that Mr. Lynch is now possessed of an adequate security clearance. This presents a factual issue which cannot be resolved by affidavit. For purposes of this motion the Court will infer that Mr. Lynch's statement that he is cleared is accurate, or if it is not, his office can find some other lawyer to act in the matter who is or will be properly cleared.
Of course on a descending scale of evils upon which matters formerly regarded as constitutional absolutes or natural rights are now being made the subject of judicial "balancing tests," it is probably less evil to allow the lawyer for a party who holds a security clearance to participate in an in camera proceeding under a protective order, than it is to restrict access to the adverse party and the judge. Because of a preference for the lesser evil, we would probably allow such participation by Mr. Lynch, given that secret judicial proceedings have to be employed.
This is not to endorse the "lesser evil" as an appropriate practice. First, it assumes that by a protective order the security-cleared attorney may be prevented by the Court, from discharging the duty of undivided loyalty which he owes his uncleared client, because of the conflicting duty he owes the Court. No man may serve two masters.
No attorney should place himself in a position in which full and fair communication with the client is inhibited by confidences owed to others. Secondly, security clearance, which may be general or limited, is not a right, but a boon granted by the executive branch. It is withheld, often on an unarticulated basis, not only from those who are disaffected or disloyal, but also from those whose personal habits make them vulnerable to blackmail, duress or alcoholism, and from ordinary blabbermouths. By the suggested practice, a Court is being asked to discriminate among those ...