1
500
2
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https://clinton.presidentiallibraries.us/files/original/4e6d173c15dec1786f4e07f8bbf75a7c.pdf
0f86908ff1afb4db5d712d0b7d2c348f
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Text
Clinton Presidential Library
1200 President Clinton Avenue
Little Rock, AR 72201
Inventory for FOIA Request 2008-0978-F
Memorandum from President Clinton to Anthony Lake and William Itoh Regarding Public
Access to National Security Council Documents, March 24, 1994
Extent
1 folder, 110 pages.
Access
Collection is open to all researchers. Access to Clinton Presidential Records is governed by the
Presidential Records Act (PRA) (44 USC 2201) and the Freedom of Information Act (FOIA) (5 USC
552, as amended) and therefore records may be restricted in whole or in part in accordance with legal
exemptions.
Copyright
Documents in this collection that were prepared by officials for the United States government as part of
their official duties are in the public domain. Researchers are advised to consult the copyright law of the
United States (17 USC, 101) which governs the making of photocopies or other reproductions of
copyrighted material.
Provenance
Official records of William Jefferson Clinton’s presidency are housed at the Clinton Presidential Library
and administered by the National Archives and Records Administration (NARA) under the provisions of
the Presidential Records Act (PRA).
Processed by
Staff Archivist, December 2009. Previously restricted materials are added as they are released.
Scope and Content
The materials in FOIA 2008-0978-F are a selective, not necessarily all inclusive, body of documents
responsive to the FOIA . Researchers should consult the archivist about related materials.
FOIA 2008-0978-F contains records regarding public access to National Security Council (NSC)
documents. The NSC was created by Congress to advise the President on issues dealing with national
security. The case of Armstrong v. the Executive Office of the President dealt with to what extent the
records of the NSC are subject to FOIA requests. On March 24, 1994, President Clinton issued a
memorandum to National Security Advisor Anthony Lake and NSC Executive Secretary William Itoh.
In this memo, the President states that regardless of the decision in the Armstrong case the NSC will
continue to provide public access to current NSC records and to those records left at the NSC by prior
Administrations, and they will also continue to transfer copies of appropriate NSC records to the next
Administration.
2008-0978-F
Clinton Presidential Library’s web site
http://www.clintonlibrary.gov
1
�The NSC Cable, Email, and Records Management Systems contains one folder of responsive material
from the NSC Records Management System. The records consist of memoranda regarding access to
National Security Council records. Also included, is the declaration of Anthony Lake in the case of
Armstrong v. the Executive Office of the President describing the structure and function of the NSC.
System of Arrangement
Records responsive to this FOIA request were found in one collection area: Clinton Presidential
Records: NSC Cable, Email and Record Management Systems.
The following is a list of documents and folders processed in response to FOIA 2008-0978-F:
Clinton Presidential Records: NSC Cable, Email, and Records Management Systems (RMS)
NSC Records Management System
[Access and NSC Records]
9420372 [OA/ID 3913]
Last Modified: 5/21/2014
2008-0978-F
Clinton Presidential Library’s web site
http://www.clintonlibrary.gov
2
�
Dublin Core
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Title
A name given to the resource
Finding Aids - Collection Descriptions & Inventories
Description
An account of the resource
Finding aids at the Clinton Presidential Library contain a detailed description of the collection including the total number of pages or photos and length of video and audio recordings. Finding aids also include background information of the collection’s topic and details on the record type (ex: email, memorandum, briefing book, Betacam video, audio cassette etc). <br /><br />Finding aids describe collections at the box and folder level, and include a folder title list and information about the arrangement of the collection. <br /><br /><strong>Please note the majority of collections have not yet been scanned nor made available online.</strong>
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
National Security Council - Collection Finding Aid
Identifier
An unambiguous reference to the resource within a given context
2008-0978-F
Description
An account of the resource
This collection consists of records regarding public access to National Security Council (NSC) documents. The case of Armstrong v. the Executive Office of the President raised the question of to what extent the records of the NSC are subject to FOIA requests. In response, President Clinton issued a memorandum on March 24, 1994 to National Security Advisor Anthony Lake and NSC Executive Secretary William Itoh stating that regardless of the decision in the Armstrong case the NSC will continue to provide public access to NSC records. The records in this collection contain memoranda and Anthony Lake's declaration in the Armstrong case.
Publisher
An entity responsible for making the resource available
William J. Clinton Presidential Library & Museum
Finding Aid
-
https://clinton.presidentiallibraries.us/files/original/2c7e1d69dbb2ecfb9e341e05fb095106.pdf
f70f9f16dc6aa41a6368aba2a8e4647d
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Withdrawal/Redaction Sheet:
Clinton Library
DOCUMENT NO.
AND TYPE
DATE
SUBJECTffiTLE
RESTRICTION
Zu'-13
Zu --1~-
001. note
Alan Kreczko to John re: Follow-up Memo (1 page)
ca. 03/1~94
P5
002. memo
Anthony Lake to President William J. Clinton re: Armstrong
Litigation ( 1 page)
03/24/1994
P5
003. memo
Anthony Lake to President William J. Clinton re: Armstrong
Litigation; duplicate of002 (1 page)
03/24/1994
P5
004. memo
Alan Kreczko to Anthony Lake re: Armstrong Litigation (2 pages)
03/2111994
P5
005. draft
Memorandum of Points and Authorities in Support of Defendants'
Motion for Summary Judment on NSC Recordkeeping Claims .(81
pages)
03/18/19~4
P5, P6/b(6)
·zj;Lflj D~,
UC>ctS--
Za46
COLLECTION:
Clinton Presidential Records
NSC Records Management
([Access and NSC Records])
ONBox Number: 3913
FOLDER TITLE:
9420372
Kelly Hendren
2008-0978-F
kh48S
RESTRICTION CODES
Presidential Records Act- (44 U.S.C. 2204(a)J
Freedom of Information Act- [5 U.S.C. 5S2(b)l
Pl
P2
PJ
P4
National Security Classified Information ((a)(l) of the PRA)
Relating to the appointment to Federal office [(a)(2) of the PRA(
Release would violate a Federal statute ((a)(J) of the PRA(
Release would disclose trade secrets or confidential commercial or
financial information ((a)(4) of the PRA]
PS Release would disclose confidential advice between the President
and his advisors, or between such advisors (a)(5) of the PRAJ
P6 Release would constitute a clearly unwarranted invasion of
personal privacy ((a)(6) of the PRAJ
b(l) National security classified information,((b)(l) of the FOlAJ
b(2) Release would disclose internal person riel rules and practices of
an agency ((b)(2) of the FOIA]
b(J) Release would violate a Federal statute ((b)(J) of the FOIA)
b(4) Release would disclose trade secrets or ~onfidential or financial
information l(b)(4) of the FOIAJ
·
b(6) Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIAI :
b(7) Release would disclose information compiled for law enforcement
:
purposes [(b)(7) ofthe FOIAJ
b(8) Release would disclose information con~erning the regulation of
C. Closed in accordance with restrictions contained in donor's deed
of gift.
financial institutions [(b)(8) of the FOl<\j
b(9) Release would disclose geological or geophysical information
PRM. Personal record misfile defined in accordance with 44 U.S.C.
2201(3).
_ .. . . _ .
..
..
. ..c!):nce.!_'!l!!g.wetts.[(b)(9) of the FOIAJ r
RR. Document will be reviewed upo11' request. , :#!~--- o;?;.~X-~~-,~-~--:· · '"'~ 1 • • ·
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THE- '• Ht),i. Nr HAS SEEr.
! s- ;;:l"-t· ~"'\
THE WHITE HOUSE
WASHINGTON
94 .MAR 2) Pl2 :
March 24, 1994
ACTION
MEMORANDUM FOR
FROM:
·SUBJECT:
THE~ENT
ANTHONY LAKE
f2
f1-
Armstrong Litigation
Purpose
To direct the NSC to maintain a disclosure policy with· respect to
certain of its documents.
Background
We are moving ahead to implement your decision that we·will
litigate the status of the NSC in the Armstrong case, on the
basis that the NSC is a solely Presidential entity.
O~r brief
will be filed Friday at 4:00 p.m~
As you know, our litigating stance is driven by legal
considerations.
However, it could be misportrayed as an effort
to cloak the NSC in more secrecy than past Adrriinistratfons.
(Past administrations have processed public requests fo r access
to certain categories of NSC (locu:m,ents.
If we establish that the
NSC ·is solely Presidential, we could, as a legal matte~ stop that
practice.)
Therefore, because it is good policy and to; dispel
any misperceptions, John Podesta, Bernie Nussbaum and I' all
recommend that notwithstanding our litigating posture, you direct
the NSC to continue to make accessible to the public certain·
categories of NSC documents, and to leave certain categ9ries of
NSC documents to the next Administration as part of the!NSC's
institutional records (as past Administrations have do9e.)
1
We intend to draw attention to the directive when btieflng
Congress on Thursday and the press on Friday on the fact that we
will be asserting in litigation that the NSC is solely •
Presidential and, as such, not subject to the Freedom of
Information Act.
•
I
RECOMMENDATION
That you sign the directive at Tab A.
Attachment
Tab A
Memorandum for the NSC
cc:
Vice President
Chief:of Staff
�20372
NATIONAL SECURITY COUNCIL
WASHINGTON. D.C. 20506
March 21, 1994
ACTION
"MEMORANDUM FOR ANTHONY LAKE
~¥:--
FROM:
ALAN KRECZ KO
SUBJECT:
Armstrong Litigation
While we do not yet have a Presidential decision, we ·are
preparing to litigate on the basis that we are Presidential.
I
We must file our brief on Friday, by 4: 00 p.m.
The b'rief (draft·
at Tab III) argues that the sole function of the Natibnal
·
Securiti Council is to advise and assist the Presiden~. While
you do not need to review the brief, you might find interesting
the discussion of the evolution of the NSC and how it has been
used by different Presidents.
We need to take several actions contemporaneous with 0r in
advance of the filing of the brief.
First, we need a Presidential decision directing the NSC to
continue to review public requests under FOIA-like standards for
certain categories of NSC documen.ts, notwithstanding our legal
assertion that we are totally Presidential and, thereflore, exempt
from FOIA.
This decision is needed to demonstrate that we are
asserting we are Presidential solely for legal reason~, and not
to cloak the NSC in more secrecy than past administrat:ions. A
memo to the President is attached at Tab I. We recommend you
sign it now, with the understanding that John Podesta will
forward it immediately if the President chooses the li~igate
option.
Second, we need a supporting affidavit from you fo~ the
litigation. The purpose of the affidavit is to de~onstrate that
the NSC staff operates at your direction, ~o advise and assist
the President. We will need to file the affidavit with our brief
on·Friday. A first draft of the affidavit is at Tab II.
I would
appreciate any comments/inputs at an early stage since\we will
need to coordinate this with Justice.
(If you provide'the
affidavit it is likely that plaintiffs will seek your deposition
concerning the operation of the NSC.
This may require 1a several
hour commitment of your time. While we could redo the :affidavit
for Will's signature instead, you are in a much stronger position
to attest to the facts in it. )
·
·
I
Third, we are planning to brief interested congressiona1 staff on
Thursday, and the five major newspapers on Friday.
In ~ach, our
I.
·. :.~i:-·:._:~~::~~·:~~~~~-r~~~=~~~~0t·~~..l i ....
LINT(),NLIBRARY PHOTOCOPY'.':\..
�2
emphasis will be that the "solely Presidential" argument is
driven by legal considerations, and that as a matter: of policy,
the President has directed that the NSC continue to make some of
its records accessible under FOIA-like standards. We also intend
to issue a brief· press statement on Friday at 4:00 p.m.
Concurrences· by:
Don
Stei~~~'
Bill
D~~£.,
Lear~ ffy.._
Bill
-RECOMMENDATION
1. That you sign the memorandum for the President at Tab I,
recommending that he direct the NSC to continue a policy of
disclosure of certain NSC documents.
I
f.)9'-r)JJ
2.
That you review and provide me preliminary comments on the d~~1:/:~draft affidavit at Tab I I.
':
..fo. ,.J ()
'
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3. That you authorize congressional consultations, doordinated
with Bill Danvers, on Thursday afternoon.
·
Approve
Disapprove
4. That you authorize a briefing of major newspapers· on Friday
morning (coordinated with Don Steinberg).
Approve
~
Disapprove
Attachments
Tab I
Memo to President
Tab A
Disclosure Direction to NSC
Tab II
Draft Affidavit
Tab III
Draft Brief
·'
�o~ JJ ,-~;-s-:.?Yr:P
(?do2) ~/~-
DRAFT
'77Jl:L ·.
IN THE .UNITED STATES DISTRICT COURT,
FOR THE DISTRICT OF COLUMBIA
)
SCOTT ARMSTRONG, et
~'
)
)
Plaintiffs,
)
DRAFT 3/18/94 4 PM
PRIVILEGED \ATTORNEY WORK
PRODUCT; AT,TORNEY-CLIENT
PRIVILEGED
)
v.
)
Civil Action No.
89-0142 (CRR)
)
EXECUTIVE OFFICE OF
n AL.,
~HE
PRESIDENT, )
>
)
______________________________ ))
Defendants.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT:ON
NSC RECORDKEEPING CLAIMS
..
PRELIMINARY STATEMENT
~
CFrom its creation in 1947)lhe National Security Council
tt.,
d~
~0\.:::....
'
(NSC} haslhad as it~ function to advise and assist t~e President
in the exercise of his national security and foreign \relations
powers under Article II of the constitution.
independent authority.
The NSC. has.no
I
Under its organic statute,
as a
an~
matter of historical practice, the Council acts as an:arm of the
I
I
President, providing him with recommendations and as his alter
ego in seeing that his policies are carried out.
For ··these
_.~
-1
reasons, records created or received by the NSC, including those
,I
on electronic communications systems, are properly tre'ated as
I
"Presidential records" under the Presidential Records Act of 1978
I
( 11
PRA"), 44 u.s.c. 2201, and not as Fede:t;al records subject to
the Federal Records Act ("FRA"), 44 u.s.c.
§§
2101, 2901, 3101,
i
3301., or records of an·"agency" subject to che Freedom:of
I
Information .Act' ( "FOIA") , 5 u.s. c.
§
552 •
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It is true that the NSC has treated itself as subject to the
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FOIA with respect to some of its records, and has also scheduled
\
such records under the FRA.
I
In its August 1993 decision in this
!
case, however, the Court of Appeals for the
Distric~
of Columbia
Circuit effectively held that NSC could not maintai~ such a
i
bifurcated system of records -- treating some as "f•deral"
records (and "agency" records subject to FOIA), and ',some as
I
"pre~idential."
Armstrong v. Executive Office of ·the President,
1 F.3d 1274, 1290-96 (D.C. Cir. 1993).
Notwithstanding the fact
I
that NSC had subjected itself to the procedures of and
wl\\.. lit.'"'{'<-~
·h:;.
so.v-0-
cf ih:
·.re-<.
c.·-~
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jurisdiction under FOIAJ{ the D.C. Ci~cuit noted tha~ the question
of NSC's status had never been definitively decided,i and remanded
to this court for a determination of whether
~t
is an agency
subject to FOIA.
Under settled case law, an EOP, entity is not an,agency under
the FOIA if it solely advises and assist.s the President.
The
structure and functions of the NSC as set forth in the 1947
I
I
:
National Security Act, the functions that have been a:ssigned to
!
the Council through Presidential directives, and the historical
...
-.
'
record, demonstrate that NSC exists solely to
,
'
advise·~.f!nd
assist
I
the President in the discharge of his core constituti9nal
national security responsibilities.
Accordingly, plaintiffs'
challenge under the Federal Records Act to the NSC's electronic
communications record-keeping practices must be rejected because
the Court lacks jurisdiction to review the
recordkeep~ng
practices of a presidential entity subject solely to the
- 2 -
�--------···----····-·-··
Presidential Records Act.
Armstrong v. Executive Office of the
i
President, 924 F.2d 282 (D.C. Cir. 1991) ("Armstrong I"). 1
I
A reaffirmation by this Court of the NSC's tra4itional role
as advisor and assistant to the President creates no significant
discontinuity with the past.
On the one hand, holding the NSC to
'I
be solely an advise and assist entity recognizes its: key role as
part of the essentially confidential process of deve'loping and
implementing national security policy.
On the other: hand,
because the President.has directed th
implementation of a
voluntary disclosure policy that wil , in many respects, resemble
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FOIA,
~part
__ , infra, informat· n that can be made available
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~~.$ 'ic.6..--~, n.,_,JPursuant to! 20(b) of the January 27, 1994 S~ipulation
and Order, defendants file this br;ef principally to;apprise the
Court that all electronic communications created or received
within the National Security Council (NSC}, for purposes of NSC'
recordkeeping practices, should be treated as "presidential" in
nature. See Parts I-III. While the court of appeal~ remand al o
concerned the recordkeeping practices of the Office of Science
and Technology Policy ("OSTP"), see Armstrong, 1 F.3d at 1290, 1
OST~ has issued. guidance. unde r which .records created :or. rej:r.cei ed
..
·
on 1.ts electron1.c commun1.cat1.on systems shall be trea:t~d as
Federal records. No other individual cir component of theE·P
creates both federal and presidential records on exi'sting
electronic communications systems within the EOP. The EQP's
general guidance on categorizing "presidential" and ~·!.eral"
e
records throughout the EOP (including records created;
received
on electronic communications systems) is set forth i ·.two
memoranda titled "Presidential Records" and "Federal/Records,"
respectively, each dated May 5,.1993, as amended on1 March
,
and
} • In part
, infra, · fendants1994 (see Exh.
separately address whether any of the-materials ithin the scope
of plaintiffs' present FOIA request, as set f th in , 1 of the
January 27, 1994 Stipulation and Order, "are roperly treated as
'presidential, ' including being "President!
records : for whicq~,
disc~osure is currently restricted under 4 u.s.c. § ~.204(a} ~~~~SID~
~ jJL_, at ! 6.
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�to the public will be.
1
This litigation, at least as it
to NSC, should come to an end. 2
STATUTORY AND HISTORICAL BACKGROUND
A.
National Security Act of 1947
The National Security Act of 1947, 50 u.s.c.
§
402,
established the National Security Councfi[;;, serve as "an
advisory body to the President with respect to the integration of
domestic,. foreign and military policies."- s. Rep. No. 239, BOth
Cong., 1st Sess. 10 (1947), reprinted in 1947 u.s. Cqde Cong.
Serv. 1487, 1494 (Exh. No._ submitted herewith). 3
JJ'S c.Under the Act, the Council is comprised of the
,---
P~esident,
the Vice President, the Secretary of State and the Se!;:retary of
Defense. 50 u.s.c.
§
402(a) (1)-(4). 4
The President
m~y
also
2
During the pendency of this litigation, no reco.rds or any
of the materials subject to the ·cou,rt's injunction that may
contain record information (i.e., backup tapes and hard disks)
will be disposed until the NSC's legal status is resoived.
Furthermore, as discussed in part
infra, the plaintiffs FOIA
request will continue to be processed pursuant to !! 4-10 of the
January 27, 1994 Stipulation and Order.
·
3
The creation of the NSC was one part of a much broader
purpose of the 194 7 Act to unify the military service~ ·~Y .. · ..
establishing the Department of Defense over the Departments of
the Army, Navy and Air Force. See Title II of Pub. L.: No. 253,
61 Stat. 495 (Exh No.
submitted herewith). The Act also
formally established the Joint Chiefs of Staff and the: Central
Intelligence Agency. ~., S 102.
4
.
In addition, the Director of Central Intelligence and
the Joint Chiefs of staff are statutory adyisers to
the NS~ecte~ the President to attend Council me~tings.
See Presidential Decision Directive ·("PDD") 2, January 20, 1993,
Exh. No.
submitted herewith). In addition, President Clint..:.n
has directed that the membership of the Council also include the
Secretary of the Treasury, the Representative t the United
Nations, the Assistant to the President for Nat onal Security
(continued ••. )
Chairma~
�designate
secretaries and under-secretaries of other
executive
military departments to serve at his pleasure.
Id., S 40
United
(a)
(7) . s The Act provides that "[t]he President of the
O-r \..ts c).o:..,;J"'-c...
es(shall pres1.de over meetings of the coU:,ncil."
Id.,
§ 402(a).
· Since its inception in 1947, the statutory purppses and
functions of the National Security council have remained
constant.
Section 402(a) of the Act provides, in ·patt:
The function of the Council shall be to
advise the President with respect to the
integration of domestic, foreign, and
,
military policies relating to the national:
security so as to enable the military
·
services and the other· departments and
,
I
agencies of the Government to cooperate more
I
4 ( ••• continued)
Affairs, the Assistant to the President for Economic
Chief of Staff to the President •.
~olicy,
the
s Council membership and participants have changed somewhat
since 1947, but throughout its existence the council's members
have been cabinet members and other senior executive officials.
For example, under the 1947 Act, membership on the NSC included
the Presiden~~~secretaries of state and Defense, and the service
secretaries~ the Army, Navy, and Air Force, as well as.the
chairman of the National Security Resources Board. rq~,+949
amendments to the Act deleted the service secretaries 1as NSC
members, added the Vice President, and authorized th~ .President
to add members from among secretaries and under-secre~aries of
other executive departments ~·National Security Ac~ of 1947,
supra, S lOl(a); National Security Act Amendments of 1949, Pub.
L. No. 216, S 3, 63 Stat. 590, 591 (1949). ~also Mutual
security Act of 1951, Pub. L. No. 165, S 50l(e)(l), 65 Stat. 517,
522 (1951) (adding Director for Mutual Security); Department of
Defense Reorganization Act, Pub. L. No. 99-433, § 203,: 100 Stat.
1011 (1986) (making the Chairman of Joint Chiefs of St~ff a
participant, "subje-r:t to the direction of the Presiden~"); AntiDrug Abuse Act, Pub. L. No. 100-690, §§ l003(a) (3), 1009, 102
Stat. 4181, 4182 (1988) (formerly codified at 5 u.s.c.: § 402(f))
(temporarily making the Director for National Drug Control Policy
a participant, "subject to the direction of the President").
- 5 -
- ,,....,~
"""~ ~~-,-"-~-~- ·-,
~~;~:~~~~ARY ~H\)TOCoeY' ~l i ·
�effectively in matters involving national':
security.
,
Id. S 402 (a).
Subsection (b) of the Act provides:
In a~dition to performing such other
,
functions as the President may direct, foi
.the purpos~ of more effectively coordinatfng
the policies and functions of the departme'nt
and agencies of the Government relating toi
the national security, it shall, subject t9
the direction of the President, be the duty
of the Council-(1) to assess and appraise the objectives~
commitments, and risks of the United States
in relation to our actual and potential
:
military power, in the interest of national
security, for the purpose of making
~
recommendations to the President in
·
connection therewith; and
(2) to consider policies on matters of
common interest to the department and
agencies of the Government concerned with the
national security, and to make
I
recommendations to the President in
connection therewith.
'
Id.
402 (b).
§
Subsection (d) of the Act provides:
The Council shall, from time to time, make
such recommendations, and such other reports
to the President as it deems appropriate o~ '
as the President may require!
·
-ft.
Id. S 402(d).
Finally, Section 402 (c) of the Act provides that ,"the
Council shall have a staff to be headed by a civilian executive
I
secretary who shall be appointed by the President."
402(c).
so·u.s.c.
§
The executive secretary, subject to the direction of the
'
Council, is authorized to appoint and fix the compensation of
- 6 -
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�"such personnel as may be necessary to perform such duties as may
be prescribed by the Council in connection with the performance
i
of its functions." ~. 6
B.
The Historical Development of the NSC
The NSC was born primarily of the lessons of World War II.
During the war, President Franklin D. Roosevelt coordinated much
national security policy himself through personal consultation
'
with the Chiefs of Staff of the military services, p,ersonal
advisors, ~d in collaboration with Britisn Prime Minister
Winston
Churchill.~
The American military's exposure, to the
British Combined Chiefs of Staff and Committee of Imperial
I
Defense led to a movement to establish similar coordiinating
bodies in the United States.to avoid the more ad hoc advisory
system that characterized the Roosevelt era.
Shortly after the war, work began(in earne~ on reorganizing
the entire U.S. national security structure.
The debate pitted
those intent on unifying all of the military services into a
single department of national defense and others, led by Navy
6
Since 194 7, the President has issued Executive orCiers ·.
designating some of the specific topics on which the NSC is to
advise and assist the President. current executive orders
specify, inter Al.!g, that NSC shall be inv'ol ved in the •,
formulation of policy regarding emergency preparedness,. E.O.
/
12656, E.O. 12472, E.O. 12127; the protection of~ensitiv~
national security information, E.O. 12356; foreign investment,
E.O. 11858; and intelligence activities, E.O. 12333. The NSC's
specific functions under these orders are discussed in part
infra.
I
7
See Hoxie, Gordon R. "The National security Council,"
Presidential Studies Quarterly (Winter 1982} (Exh. No. ~
submitted herewith} at 108.
'
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�Secretary James L. Forrestal, who favored a
inter-
high-l~vel,
agency national security coordinating body in lieu
:~a
unified
defense agency. 8
Forrestal associate Ferdinand Eberstadt prepared a study on
I
i
the matter which first coined the phrase "National Security
Council," Nelson (Exh. No. _) at 362, to be a ''kin4 of a war.
cabinet in which the responsibilities of the President could be
;
vested."
Hammond (Exh. No. _) at 899.
I
:Under the Eperstadt
I
.
. '
proposal, the President would chair the NSC and, in his absence,
\
the Vice President.
Id.
Membership would include the
Secretaries of State, War, Navy and Air, with the Jo~nt Chiefs of
Staff and Cenr.ral Intelligence Agency as part of its '
deliberations. 9
Since he favored a unified defense department, Truman
'
discarded the Navy's proposed alternative, the National Security
Council, in a December 1945 proposal to Congress.
No. __ ) at 362; sander (Exh. No. __ ) at 374.
Ne]son (Exh
Ultimately,
8
I
See Paul Y. Hammond, "The National Security courtcil as a
Device for Interdepartmental Coordination: An Interpretation and
Appraisal." American Political Science Review, Decemb~rH'i960, at
899 (hereafter "Hammond") (Exh No._ submitted herewith); Alfred
D. Sander "Truman and the National Security Council, 1945-47,
Journal of American History, September 1972 at 370 (hereafter
hereafter "Sander") {Exh. No.
submitted herewith); Anna Kasten
Nelson, "President Truman and .the Evolution of the Nati:Onal
Security Council," Journal of American History, September 1985,
at 360-362 {hereafter "Nelson") {Exh. No. - subml.tted herewith).
.
•
'
9
See Karl F. Inderfurth and Lock K. Johnson, Decisions of
the Highest Order: Perspectives on the National security council .
(Pa.cific Grove, California: Brooks/Cole 1988) {hereafter
.·~
"Inderfurth") {Exh. No. _ submitted herewith), Eberstadt Repo ~"'
.·'0/'\
Excerpts, at 3 3 •
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however, Truman assented to establishing an NSC in order to
obtain Navy support for defense un~f~cat~on, Nelson i{Exh. No.
•
•
•
I
___ ) at 363; Sander {Exh. No. ___ ) at 375, but not before
significant changes in NSC's proposed functions.
!
Truman's advisors in the Bureau of the Budget {hereafter
i
"BOB") "look[ed] at the proposal from the point of view of the
I
Presidency."
Sander {Exh. No.
I
The Bur~au was
) at 379.
concerned that the council was intended "t::o try to' c~pture the
President to get decisions made collectively in his ~resence."
Id. at 378.
They were also concerned that the proposed NSC
"delegated authority which only the President can del:egate since
in the American constitutional system only the President is
responsible for the ultimate formulation of foreign and military
policy."
Id. at 379.
The Bureau was also concerned that the
I
council would be dominated by the military and that no staff
outside of the military was planned.
Id.
For these reasons, the Bureau recommended that NSC be solely
-
advisory to the president and not be given any authoritative
functions in the statute.
Sander {Exh. No. ___ ) at 379~· . The
Bureau proposed virtually all of the advisory language: that
remains in the National Security Act today, including ~hat "the
I
function of the Council shall be to advise the President with
respect to the integration of foreign and military policies and
to enable the military servi~es and other agencies of the
Government to cooperate more effectively in matters
national security. 10
Id.
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�(1)
The Truman NSC
After the 1947 Act was signed into law, competing visions of
how the NSC would actually function again emerged, see Nelson
·(Exh. No. _ ) at 364, and the view that NSC should :iserve solely
as an advisory arm of the President again prevailed.;
James
Forrestal, who became the first Secretary of Defense, viewed the
I
NSC as "a part of the defense establishment."
Id. at 364.
He
"envisioned a council at which the Presid~nt would, rarely
. preside, since the major function of the council was: to relieve
the President."
.x.g.
The NSC wouldact "within the broad scope
I
of policies already approved by the President" and ·might
recommend action to individual departments without first
ref?erring the matter to the President.
l.Q..
Forrest~!
wanted the
NSC to be housed as close as possible to the Secretary of
Defense, and to preside himself over the Council in
I
~he
President's absence. Id.
The Bureau of the Budget again had a much diffe]'jent view,
0
1
and regarded the NSC staff as a "further enlargement pf the
Presidential staff."
See Nelson (Exh. No. __ ) at
36~. ~:!,~he.
Bureau recommended that the NSC secretariat be housed·!· in the
~-
Executive Office building "since the basic reason for; the
council's. existence is to advise and aid the President."
See iU§..2 Sander (Exh. No. __ ) at 387. 10
Id.
It also beli4fved the
See James s. Lay and Robert H. Johnson, Organizational
History of the National s~curity Council During the Truman and
Eisenhower Administrations (hereafter "Lay & Johnson") (Exh. No.
,.
_submitted herewith) at 6, n.16 ("In fact, office spac7 was /~0~""'),
( cont1.nued. /{('f
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�council should not circumscribe the President's abil,ity to make
decisions freely, and recommended that it be regardep in the same
manner as the President's cabinet, focused on
nation~l
security
I
aff~irs.
384.
Nelson (Exh. No. ___ ) at 365; Sander (Exh.· No. __ ) at
Finally, the Bureau recommended that the statutory
executive secretary be considered the President's man rather than
that of the Council, an administrative assistant who:should have
full -.access to the President.
Id.
"The Bureau fe1t:this close
.
'
relationship to the President rather than the counci~ was proper
because the basic reason for the council's existence\was to
advise and aid the President."
i
Sander (Exh. No. __ )i at
Truman, of course, accepted the plan from the
BOB. It was consistent with his determination
that the presidency never be weakened while
he was in charge. It also reflected his vi;ew
that only the president could really make t•he
tough decisions on foreign policy.
·
Nelson (Exh. No.·._) at 366.
At the NSC's first meeting on September 26, 1947:, President
Truman, according to NSC Executive Secretary, Sidney
w.
Souers,
I
11
indicated that he regarded it. as his council • • • • '' See Sander
(Exh. No. ___ ) at 387.
Truman used the council "' on.ly as a place
for recommendations to be worked out. •
The poli9y itself
'
has to come from the President, as all final decisions have to be
made by him.'"
10
~.
(citation omitted).
{ ••• continued)
provided for the Executive Secretary in the Pentagon, ,but never
occupied. The decision to locate the Council offices :in the
Executive Office Building reflected a conscious recognition of
the Council's role as a staff arm to the President.")
�Truman also made clear from the beginning that, when he
approved recommendations made by the Council, they ~ere to be
implemented "'by all appropriate Executive departme~ts and
a_gencies of the U.s. Government under the coordinati'on' of theI
department or agency head who had the primary respon'sibility for
implementation of the policy involved."
_ ) at 13.
Lay & Johns~n (Exh. No.
In Reorganization Plan No. 4 of 1949 1 the NSC· w~s formally
placed within the Executive Office of the President,, "thus
formalizing a de facto situation."
See Senate Report 838, 81st
Congress, 1st Session at 2 (Exh.· No. __ submitted hetewith).
The Senate Report on this reorganization stated:
The President as chairman controls NSC
business, making his desires known through1
the executive secretary who is appointed by
the President without Senate confirmation, ·
and who acts as the President's staff
assistant for national se·curity matters.
Id. at 2.
The report went on to cite a memorandum p~epared by
'
the Truman Administration in support of this reorganfzation which
concluded that:
the Council function of advising the
President indicates the desirability of it~
official recognition as a strictly
Presidential staff organization, a highpolicy planning arm of the President. It
pulls together factors involved in a national
security problem and presents to the office;
an integrated proposal for a United States :
policy. This requires the coordination of
Cabinet members and other high Government i
officials which can and should be done only~
by the President or in his name * * *
'
Id.
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�Following the advice of his Budget Bureau, Trpman stayed
away from many early NSC meetings, attending just 12 of 57
meetings between the September 26, 1947 meeting an4 June 23,
1950.
Lay & Johnson (Exh. No. ___ ) at 5, n.11.
During this
period, the NSC focused on studies concerning critilcal areas of
the world.
I,g.
at 9.
After approval by the President, the NSC
staff would prepare a paper for presentation to the.Council.
Nelson (Exh. No. ___ ) at 368; Lay & Johnson (Exh .. No. ___ ) at 11.
l
.• • • A day or two after the council meeting
the Executive Secretary submitted to the
President the record of the Council's actions
and the policy papers as amended and adopted
by the Couricil, including any remaining
differences of view • • • • The President
acted upon the Council's recommendations,
deciding any remaining differences of view~
The President approved only the "Conclusions"
1
of the policy paper; these became the
national security policy on the subject.
Lay & Johnson (Exh. No. __ ) at 12-13. 11
The NSC staff during the Truman. Presidency was 9rganized in
three parts.
See Lay & Johnson (Exh. No. ___ ) at 8 •. The NSC
Executive Secretary was considered an ·assistant to the President,
i
and worked to coordinate and keep the President apprised of·
".-Jf.,
council activities.
Id.
'
The NSC Secretariat performe,d duties
such as circulating papers and preparing agendas.
xg.·
offices constituted the permanent Council employees.
·"NSC Staff" was created consisting of officials
These
'I,g.
detail~d
An
on a
u In April 1949, Truman told the NSC that its reports and
those from the CIA "'proved to be one of the best means available
to the President for obtaining coordinated advice as a:basis of
reaching decisions.'" Nelson at 376-77 citing Minutes\of NSC
Meeting, April 2, 1949.
'
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�full time basis by the departments and agencies represented on
the Council.
Id. at 8.
Because the Council
expect'~d
to deal
primarily in foreign affairs, the staff was headed by a State
Department official called the "Coordinator."· The Staff was
·,
assigned to the Council on a full-time basis and physically
located together in NSC offices, though they also ma'intained
offices in and contact with their representative agencies.
Id.
at 10. 12
"The outbreak of the Korean war marked a .turning\point in the
history of the NSC.
Nelson (E.xh. No.
) at 372.
\
"~he
President began to preside regularly at Council meetings and made
clear that he intended to use the Council to discuss every policy
matter concerning the national security."
Id. at 373~ 13
Truman
also created a new "NSC Senior Staff," by directing NSC members
to appoint an individual at the assistant secretary level to meet
every two weeks and participate actively in NSC staff work, while
'\
existing NSC Staff within the EOP became their Staff
A~sistants.
Is!. at 17.
Of particular significance, Truman assigned the Exec;:~tive
Secretary to direct the Senior Staff's activities, ending the
12
Another staff structure was added in November 194,7; when
the military services designated "Consultants" to the Executive
Secretary from the plans and operations divisions of the: military
services. Lay & Johnson (EXh. No._.__ ) at 8. This interagency
staff assisted in substantive research and prepared papers for
NSC consideration. Is!· at 11.
'
From June 28, ~950 to January 9, 1953, Truman pre~ided at,.,."''s\OE~
62 of 71 Council meetJ.ngs. · Lay & Johnson (E.xh. No. __ ) :at 16,~\l-X.:
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n.29.
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�State Department's coordination role.
Lay & Johnson (Exh. No.
1
!
___ ) at 17.
For the first time, this established staff
supervision within the EOP in "an official without d~partmental
ties."
Id~
at 17-18.
(2) The Eisenhower NSC
President Dwight D. Eisenhower established-new and distinct
structures within the NSC, and used them extensively throughout
his Presidency.
I
..
But the fundamental purpose of the NSC -- to
advise and assist the President in the discharge of national
security policy -- did not change.
Eisenhower conceived of the NSC as:
a corporate body composed of individuals
advising the President in their own right,
rather than as representatives of their
respective departments and agencies. Their:
function should be to seek, with their
background and experience, the most
statesmanlike solution to the problems of
.
national security, rather than to reach
·
solutions which represent merely a compromise
of departmental positions.
Lay & Johnson (Exh. No. ___ )a t 30.
Eisenhower nat~onal security
'
I
assistant Robert Cutler wrote in 1956:
-~.'.'.
Fundamentally, the Council is a vehicle for,
President to use in accordance with its.
suitability to his plan for conducting his
great office. The Congress provided the
vehicle, but it is in the President's
discretion to do with it what he wishes. 14
a
14
Robert Cutler, "The Development of the National ·Security
Council," Foreign Affairs, April 1956, reprinted in Inderfurth &
Johnson pp. 55-65 (hereafter "Cutler in Inderfurth & Johnson")
(Exh. No. _ submitted herewith) at 56.
1
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�In March 1953, Eisenhower approved a plan deve1oped by
I
Cutler that reflected several key principles for NSC's
I
Pres~dential
organization, including the "importance of the
'
'
advisory character of the Council, and, deriving therefrom, the
importance of adjusting the Council's operation to the needs of
I
the new President."
Lay & Johnson (Exh. No. __ ) at. 30.
The
most significant feature of Cutler's March 1953 plan was the role
of Special Assistant to the President, which he assumed at that
time.
.
'
Cutler described this non-statu~ory position as "the
. \
Id.
principal executive officer of the National Security ·council."
March 1953 Report, Exh No. _
at _.
This change represented the designation by
the President of a member of the White House
staff as his principal staff officer for
national security affairs. The Executive
Secretary, who had previously performed this
general role, was reappointed as head of the
career staff of the Council • • • .
Lay & Johnson (Exh. No. __ ) at 26.,
The Special Assistant was responsible for determining the
NSC's agenda, subject to the President's desires, and for
briefing the President in advance of Council meetings and for
presenting discussion at those meetings.
Lay
&
Johnson· {E:Xh. ··No.
1.
I
__ ) at 26;
I
Special Assistant was also charged with bringing to the
~
sl§2 March 1953 Report, Tab No.
at _:_.
President's attention lack of progress in carrying out
tasks, and recommendations for appropriate action.
(Exh. No. __ ) at 26;
The
~ssigned
Lay' & Johnson
As under Truman, however, responsibility
- 16 -
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.
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�for implementation of policy under the Eisenhower NS9 rested with
l
responsible agency heads.
Id.
Eisenhower also reorganized the NSC staff.
The;Senior Staff
of interagency officials designated by President Truman was renamed the "Planning Board," and the NSC staff assistants were renamed the Board Assistants.
Lay & Johnson (Exh. No. :___ ) at 25.
These staffs continued to have the same functions, although, of
significance, the Special Assistant to the President was named as
Chairman of the Planning Board in lieu of the NSC executive
secretary.
I.Q.
The Special Assistant plays a leading role ·in
the Planning Board as presiding officer and
as a non-voting participant • • • • [A]s the
principal staff officer of the President f~r
national security affairs, he is concerned
primarily to ensure that the paper is
adequate and satisfactorily reflects the
views of the members of the Planning Board 1
representing the various.agencies.
Lay & Johnson at 33.
This meant that the
principa~
NSC staff
would be coordinated by an assistant to the president. 15
'
Another significant organizational change under President
Eisenhower was the establishment of the Operations c~o~di~ating
Board (hereafter "OCB").
The OCB's function was to ::.'advise with"
15
Another staff innovation under Eisenhower was the
establishment within NSC of a small "Special Staff" under the
supervision of the Deputy Executive Secretary. Lay & Johnson
(Exh. No. ___ ) at 27. This staff performed, inter alia,
"independent analysis and·review of each Planning Board report
before its. submission to ·::he Council," as well as a "continuous
examination of the totality of national security policy with a
view toward determining if gaps existed which should ~e filled
.and if important issues or anticipated developments were
sufficiently explored." Id.
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�those agencies responsible for ·actually implementing a national
security policy recommended by the NSC and approved by the
President. 16
Lay
&
Johnson (Exh. No. _) at 36-37.
:This
included matters such as operational planning, and coordinating
· the execution of such plans, but not the power to di:rect any
action.
Is;!. at 37.
The OCB' s mandate was limited t.o
international affairs, but nonetheless it was involved in the
bulk of Presidentially-approved national security ,policies. Id. 17
Thus, under Eisenhower the National Security council was
viewed as sitting "at the top of Policy H5.11."
on one side of this hill, policy
recommendations travel upward through the
Planning Board to the Council, where they are
thrashed out and submitted to the President.
When the President has approved a policy
recommendation, it travels down the other .
side of Policy Hill to the departments and
agencies responsible for its execution. • . •
Part way down this hill is the Operations
Coordinating Board, to which the President
refers an approved national security policy
as its authority to advise with the relevant
department and agencies as to their detailed
operational planning • • • •
The OCB was chaired by the Under Secretary of .:st~te and,
included the Deputy Secretary of Defense, the Director of the
Foreign Operations Administration, the Director of c~ntral
Intelligence, and a representative of the President. :Lay &
Johnson (Exh. No. _._) at 36.
16
17
Initially, the OCB was staffed separately from the.NSC
staff. See Lay & Johnson (Exh. No.
) at 40-41. In February
1957, however, President Eisenhower ISsued a revised Executive
order placing·the OCB within the structure of the Nat'ional
security council. OCB staff were moved into the Execptive Off~ce
Building adjacent to the NSC staff, and the staffs were
integrated into a single NSC staff and funded through
appropriations to the NSC. I.Q.
- 18 -
�See cutler in Inderfurth & Johnson (Exh. No. __ ) at 58.
The Eisenhower system also emphasized "carefully staffed and
carefully written documents."
at 58.
See Cutler in Inderfuith & ~ohnson
---
I
This "tendency toward formality and stylization"
deliberately ."eliminated the informal 'kicking about'. of a
problem at the Council meeting."
,Ig. at 59.
The Eisenhower
system accepted this disadvantage in favor of a decision-making
I
process "based on an exactly prepared and _commonly. un,derstood
.
statement of facts and recommendations."
(3)
Id.
The Kennedy NSC
The NSC system in administration of John F. Kennedy was
marked by less formal and structured means for providing the
President advice on national security issues.
Kennedy was
influenced by a study of the Eisenhower NSC organization
undertaken by Senator Henry M. Jackson's Committee on Government
Operations, Subcommittee on National Policy
Machinery~I
18
The
Jackson Subcommittee issued a report in December 1960 (hereafter
"Jackson report") , 19 which criticized several elements :of the
Eisenhower NSC and foreshadowed many of the changes wliich·Kennedy
·,.,_~, i
' "
made that underscored NSC's function as an arm of the'President.
18
See Bromley K. Smith, Organizational History of the
National Security council During the Kennedy and Johnson
Administrations at 6 (hereafter "Smith") (Exh. No.
'submitted
herewith).
'
19
Henry M. Jackson, The National Security Council!: Jackson
Subcommittee Papers on Policy-making at the Presidential Level ~(New York: Praeger, 1965) (Exh. No. - - submitted herewith) at ~SID€A,
,
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42.
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�The report called the NSC Planning Board a "policy paper
production" system which was "not a creative instrum~nt for
developing and bringing forward imaginative and sharply defined
I
choices • • . • "
Jackson Report (Exh. No.
-
) at 33-:34. · The
'
Eisenhower Operations Coordinating Board of NSC was also singled
out for criticism as "having little impact on the real
coordination of policy execution."
Id.
The Jackson report concluded that "trre real worth of the
Council to a President lies in its being an accustomed forum
where he and a small number of his top advisers can g~in that
intellectual intimacy and mutual understanding on which true
Jackson Report ( Exh. No. _l at 3 8.
coordination cl.epends. "
I
Accordingly, the report made several suggestions to
"deinsti tutionalize" and "humanize" the NSC process.
:Id. at 3 9.
Of note, the Jackson report recommended that "[t]he Council
exists only to serve the President" and should meet only when the
President wishes its advice.
39.
Jackson Report (Exh. No.: _)
at
In lieu of the Planning Board, it recommended the use of
more informal working groups, and also recommended tha:t-:-.
The President at all times should have the:·. :
help and protection of a small personal staff
whose members work "outside the system," who
are sensitive to the President's own
information needs, and who can assist him in:
asking relevant questions of his departmental
chiefs, in making suggestions for policy
initiatives not emerging from the operating
departments and agencies, and in spotting
gaps in policy execution.
Id. at 41.
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�cEB@DD@dY embraced much of what the Jackson report
recommended.
On December 31, 1960, in announcin9 the
of McGeorge Bundy as his Special Assistant for National Security
Affairs, the President-elect announced his intention "to
consolidate under Mr. Bundy's direction the National Security
Council secretariat, the staff and functions of the Operations
Planning Board and the continuing function of special projects
l
'
Smith (Exrr. No. _) at 9.
within the White House staff."
Kennedy also directed Bundy to simplify the NSC organization
"toward the end that we may have a single, small, but strongly
organized staff unit to assist me in obtaining advice· from, and
coordinating the operations of, the government agencies concerned
with national security affairs."
Id.
The OCB was in fact abolished,
~
Smith (Exh. No. __ ) at
13-14, as well as the function of the Planning Board as staff to
the NSC.
The operations of the Council also changed
considerably.
Kennedy regarded "formal meetings of the National
Security Council which include a much wider group as
.
n~t
effective," .iQ.. at_, and utilized informal or ad hoc groups
outside of the NSC structure.
He met three to four t1mes a week
. '
with NSC principals, the Secretaries of State and Defense, the
Director of Central Intelligence, the Vice President and Bundy,
but not iri a formal NSC Council meeting.
Id. at 17.w
w One notable example of a non-perman~nt entity used by
Kennedy was the designation of the Executive Committee of the
National Security Council ("EXCOM") to deal with the Cuban
missile crisis of 1962. Smith (Exh. No. . ) at 45-46. EXCOM was
( co,ntinued ... )
- 21 -
�Also, in contrast to the staff emphasis in the 1950s on
coordination of issues for the Council, "Bundy made clear that
the busin~ss of the revised national security staff would go well
beyond what would be treated in formal meetings of the Council."
I
.. .
Id.
'"It is our purpose • • • , in cooperation with other
Presidential staff officers, to meet the President's staff .needs
throughout the national security area."'
Id. 43-44 qUoting
Bundy • 21
(4)
The Johnson NSC
The changes to the NSC's function made by President Kennedy
-- a greater reliance on informal meetings and the use of NSC
staff as personal advisors -- were carried over by President
Lyndon Johnson, though with some additional variations suited to
his own style.
At his first NSC meeting on December 5, 1963,
Johnson indicated that "not all national security work: could be
done in meetings of the Council."
Smith (Exh. No. _),at 57.
Johnson planned "to use the Council fro"J."q time to time as a forum
in which national security matters could.be examined," but also
"to hold special meetings for special· purposes." Id.
20
( ••• continued)
not permanent and was dissolved in January 1963 after
crisis was over. Id. at 46.
~he
missile
21
In lieu of a formal process of preparing papers 'for the
President through the NSC and receiving Presidential de_cisions
thereon, the Kennedy Administration developed National Security
Action Memoranda ("NASM"), signed by either the President or
Bundy, which set forth specific instructions, requests for
.--~.....
s~~dies, questions to be answered, or solicited recommendations ~~~SIDcN~
Sml.th at 23.
~
'1<'
,9
- 22 J
"-~. ;'t~
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1
-.
.
-~toNLiBiqRY pHOTOCOPY.
2
~
1Di0 !
/
�Johnson preferred national security advice directly from his
Secretaries of Defense and State.
Smith (Exh. No. __. ) at
The trademark advisory mechanism of his administration was the
T~esday Luncheon Group with these officials and his n:ational
security adviser, and a few trusted others.
Id.
"(A.Js Johnson's
attention increasingly focused on the conflict in Vietnam, the
Tuesday lunch was transformed into the principal forum for
directing strategy and tactics associated .with the war effort."
Inderfurth (Exh. No. __ )
at 92.
In 1966, Johnson signed a directive assigning the Secretary
of State "'authority and responsibility • • . for the overall
direction, coordination and supervision of interdepartmental
activities of the United States overseas."
__ ) at 93.
Inderfurth (Exh. No.
This directive also established a Senior
Interdepartmental Group (SIG) to oversee the implementation of
the administration's foreign policy, which, of note, was to be
chaired by a State Department representative and not the
President's national security adviser.
(5)
Ig.
The Nixon NSC
The Nixon Administration NSC system, in the word,~'of
national security adviser, Henry Kissinger, sought to combine
"the best features of the two systems: the regularity and
efficiency of the National Security Council, coupled with
I
procedures that ensured that the President and his top 'advisers
considered all the realistic alternatives.'"
Inderfurth at 94
- 23 r'~'!" -..J· '<~:.'-'-·-~."""-'-==--~·-· -
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·:
~
.. , •
•
.
• ..•• ,,
�quoting Kissinger, The White House Years (Boston: Little Brown,
1979).
On Q.is first day in office, President Nixon issued National
'
Security Decision Memorandum 2, which declared that the "National
Security Council shall be .the principle forum for consideration
of policy issues requiring Presidential determination."
submitted herewith.
No.
See Exh.
Nixon directed that the NSC meet
regularly, with a discussion limited to aqenda subjects, and he
· designated the Assistant to the President for National security
Affairs responsibility for determining the: agenda
that necessary papers were prepared.
Id.
and~
ensuring
Nixon also; established
several NSC interagency subcommittees, virtually all of them
chaired by Kissinger, and abolished the Senior Interagency Group
established by Johnson and chaired by the state Department. Id.;
see also Inderfurth at 95.
The Nixon NSC structure reflected the President's plan to
centralize foreign policy making under his personal control and,
as history records, Kissinger, on Nixon's personal behalf,
assumed substantial responsibility for foreign policy, .from
Vietnam, to arms control, to the opening to China.
Inderfurth &
Johnson at 95. 22
22
When Gerald R. Ford assumed the Presidency on August 9,
1974, he signed National Security Decision Memorandum 265, under
which the "National Security Council shall assist [him]. in
carrying out my responsibilities for national security affairs"
and the National Security council shall continue to be t... te
principal forum for consideration of policy issues requiring
Presidential determination." see Exh. No. _ submitted,
.~
herewith). Ford continued the NSC system inherited from Nixon,~«~'""- --...tvl/~
(continued. ,o)
<"
a 1u4:~
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- 24 j
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�(6)
The Carter NSC
President Carter assumed office with the goal of downgrading the role of a high-profile national security adviser and
placing renewed emphasis on "cabinet-government" in the discharge
of his national security responsibilities.
No. __ ) at 96.
See Inderfurth (Exh.
On January 20, 1977, Carter signed Presidential
I
Directive
of
hi~
NSC-2, which established the organizational structure
National Security Council system.
submitted herewith).
-See Exh.
·No~
It set forth the goal of placing "more
responsibility in the departments and agencies while insuring
that the NSC, with my Assistant for National Security Affairs,
continues to integrate and facilitate foreign and defense policy
decisions."
Id.
Carter, like Nixon and Ford, designated the NSC
as his "principaJ. forum for international security issues
requiring Presidential
consideratio~,"
and charged his national
security adviser with determining the NSC agenda, with the
assistance of the NSC staff.
~.
· Carter simplified the NSC structure by establishing just two
committees: (i) an NSC Policy Review committee, chaire:c:Lpa!?.·.
designated by the President, to establish interagency,.
coordination where primary responsibility falls on one agency;
and (ii) the NSC Special Coordination Committee, to be: chaired by
·22 ( ••• continued)
and initially designated Kissinger to continue to serve as both
Secretary of state and Assistant to the Pr-:·.sident for National
Security Affairs. Inderfurth (Exh. No. __ ) at 96. Ultimately,
Ford appointed Air Force Lt. Gen. Brent Scowcroft as his national
-·
security adviser and chairman of several NSC subcommittees
~~~SID€~~
Kissinger had chaired. l,g.
·
~
4<'
- 25 -
s
z
�the APNSA, to deal With •cross-cutting" issues requiring
interdepartmental coordination.
See Exh. No.
at
--=
-
The sec
under Carter's plan was to include the statutory Coun.cil members,
and the designation of his national security adviser as chairman
of this committee set the stage for the APNSA assuming a
substantive policy role in the Carter NSC system.
xg.
Carter also utilized less formal procedures, including a
"~iday
Secretar~
breakfast" with the Vice President,
of State,
and n.atio.ni!l security adviser, and later the Secretary of Defense
and other top White House staff.
Inderfurth & Johnson at 98.
Carter also had Weekly luncheon meetings with the seCretaries of
State and Defense and his national security adviser. ' Id.
,(8) The Reagan Nsc
President Reagan also sought to restore the pre-emirience of
the responsible cabinet level departments in the Nsc process.
Reagan's first Nsc organizational directive (NSDD 2), issued. in
~rch
1982,
~eated
prior directions that the Nsc shall be the
"Principal forum for consideration of national security policy
issues requiring Presidential decision.• See EXh. No •. _.
submitted herewith at
:.-.f.'·
Of significance, however, N.soo 2
included an express provision that the Secretary of State is the
-.
·.)
President's "principle foreign policy advisor" and, as ·such, was
1
"responsible for the formulation of foreign policy and the
execution of approved policy. "
Id.
Further, Reagan asSigned to
the Secretary of State •responsibility , • . for the overall
direction, coordination, and supervision of interdepartmental
- 26 :~~--~~~:~~:>~-:.~~-~-~·~--~--_:.-~:-. ~ ~~·
'It:
\, '>.1:.
. ·--
iNfoN LiBRARY PHOTOCOPY :,'[ ..
'
,i
�activities incident to foreign policy formulation 11
the functions of the NSC itself.
Id.
nominally
Reagan also set forth the
specific responsibilities of the Secretary of Defens·e and CIA
Director, and charged them with similar coordination
responsibilities for matters incident to their respective
jurisdictions.
Id.
The Reagan directive also set up three different "Senior
Interagency Groups" (SIGs) for defense, foreign policy, and
intelligence, on which his national security adviser served but
which were all chaired by a representative of a cabinet agency.
See Exh. No.
at
Finally, Reagan established another layer
of NSC subcommittees, called "Regional and Functional Interagency
Groups," to be established by the Secretary of State and
responsible for certain world regions or substantive issues {such
as arms control).
Id.
NSDD 2 firmly installed the cabinet
government model in the area of national
security affairs. It lodged central
bureaucratic and policy responsibilities at '!
the cabinet level, and assigned only minimal '
supporting missions to the NSC staff. The
directive divided the broad field of securit~
policy, as it did the interagency process,
into three distinct parts • • • • Within
these spheres, it drew direct lines of
.
accountability for policy and process alike,
from the responsible cabinet officer to the
President. 23
1
23
-P
Stevens, Paul Schott, "The Rf'agan NSC: Before and: After,"
Perspectives on Political Science (Spring 1990) (Exh. No'. _
submitted herewith) at 119.
- 27 -
�In June 1981, Reagan also established the National Security
Planning Group, comprised of the President, the Vice :President,
the Secretaries of State and Defense, the CIA Director, and some
of the President's senior White House staff, to discuss national
security matters.
See Exh. No.
were not permitted to attend.
submitted herewith.
Id.
Staff
The NSPG, rather than the
"National Security Council," became the principal forum within
the Reagan Administration for national se~urity de?ision-making.
The Reagan-era NSC was marked by an intrusion by some NSC
staff into the actual conduct of covert operations in the Irancontra matter.
In the wake of disclosure of these staff
activities, Reagan established a Special Review Board, know as
the Tower Board, to study the appropriate role and functions of
the NSC and its staff.
Of the NSC, the Tower Board wrote:
The National Security Council is not a
decision-making body. . Although its members
hold official positions in the Government,
when meeting as the National Security Council
they sit as advisors to the President. . . •
The National Security Council has from its
inception been a highly personal instrument.
Every President has turned to those
individuals and institutions whose judgment
he valued and trusted. • • • Regardless of the frequency of its use, the NSC has
remained strictly an advisory body. Each
President has kept the burden of decision to
himself, in accordance with his
Constitutional responsibilities.u
u See Excerpts from Tower Board Report (Exh. No.
submitted herewith) at
- 28 -
. _;,~.:. :i,;_,.::;:.:;~~~~-"'-'~~-"--~:;~~-- ··_~;
:_;·.~,:::_.iNtoN LiBRARY PH6t6COPY . j!
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.
.
,: .(
"•.:;
�on March 31, 1987, Reagan issued a directive implementing a
number of the Tower Board's recommendations.
submitted herewith.
See. Exh;. No.
It expressly prohibited NSC staff from
assuming any operational roles in covert activities.
Id.
It
also provided that
all NSC participants shall sit as advisors to
the President in connection with the
President's exercise of authority under the
Constitution and laws\ of the United States •
. In their capacity as department and agency
heads, NSC participants shall ensure the
effective and expeditious implementation of.
overall national security policies
established by the President. Execution and
implementation of such policies shall not be
the responsibility of the Assistant to the
President for National Security Affairs or of
the NSC Staff except as the President
specifically directs.
(8)
The Bush NSC
The NSC system in the Bush Administration, set forth in
National Security Directive 1 (NSO 1), see Exh. No.
submitted
herewith, was not unlike its immediate predecessors.
For
example, President Bush incorporated by reference the NSC
functions set forth in the 1947 Act, designated the NSC as the
"principal forum for consideration of national
secur~ty
..
policy
issues requiring presidential determination, and directed that
the "NSC shall advise and assist the President in integrating all
aspects of national security policy as it affects the United
States ••
"
,Ig.
President Bush directed further·that "NSC
will be the Presi1ent's principal means for coordinating
Executive departments and agencies in the development
implementation of national security policy."
,Ig.
~nd
�Again as in the past, President Bush designated his
Assistant for National Security Affairs to be adminlstrator of
the NSC process, including by developing, upon consultation with
the Secretaries of state and Defense, the NSC's agenda and ensure
that necessary papers were prepared.
See Exh. No.
at
Various NSC subcommittees were established, including a
Principals Committee chaired by the National security Adviser and
comprised primarily of the NSC principals, and a
Committee, -chaired by the Deputy Assistant for
Dep~ties
Security
Natio~al
Affairs, with interagency representatives_at the Assistant
Secretary level.
(9)
Id.
President Clinton's National Security council system
On the day he was sworn into office, President Clinton set
forth the basic purpose and structure of how the National
Security council would operate during his administration in
Presidential Decision Directive 2 ("PDO 2"}.
~
Exh •• No. _.
POD 2 incorporates by reference the functions of the NSC set
forth in the National Security Act of 1947, and states.that under
President Clinton, the National Security Council is organized "to
'
~-.'!
..
assist [the President] in carrying out (his] responsi}?ilities in
the area of national security . . .
" and will be "the principal
I
forum for consideration of national security policy issues
requiring Presidential determination."
~.
The President specifically directed that the NSC exists to
"advise and assist [the President] in integrating all aspects of
national security policy as it affects the United States" and
-
30 -
:c~~~~=:~"~~~~r.
'1 -,·~·. ·,· iNTONLlBRARY PH0TOGQPY ..•~)l·
';;f
..· .
:_..r
�that "(a]long with its subordinate committees, the NSC shall be
,.
[his] principal means for coordinating Executive departments and
agencies in the development and implementation of national
s~curity
policy."
See Exh. No.
at
POD 2 also directs that President Clinton's NSC system will
be administered on the President's behalf by his Assistant for
National Security Affairs, Anthony Lake. 25 ~ Exh. No.
Mr.
Lake,_ chairs the NSC "Principals Committee-," which, includes the
Cabinet-level officials on the full Council (including the
Secretaries of State and Defense, the U.N. Representative, CIA
Director and Chairman of the Joint Chiefs of Staff), in
discussing issues for which the personal attendance o~ the
President is not appropriate.
IQ.
Mr. Lake, working in
consultation with the Secretaries of State and .Defense, is also
responsible for calling committee meetings, determining the
agenda, ·and ensuring that the necessary papers are prepared.
Id.
The President has also directed that the NSC staff shall assist
the national security advisor in undertaking his role to
administer the NSC process.
Id.
Under President Clinton's NSC organization, there is also a
. '
second level committee called the "Deputies Committee," comprised
of the deputies of Principals Committee members, including the
Under Secretary of Defense for Policy, the Under Secretary of
25
The APNSA is not a statutory member of the NSC nor a
statutory staff officer of the NSC. Rather, the APNSA' is a
direct adviser to the President on national security issues
within the White House Office.
- 31 -
i):,;~~-ofi:_''-:~?-::.,~:''=~~~-~~~3 .'• .l
·is:~: ·'f~t6N LiBRARY PHOTOCOPY :··:1;- ":
~ ..y-~
•
'
�State for Political Affairs, the Deputy Director of the CIA, and
the Vice Chairman of the Joint Chiefs of Staff.
See Exh. No.
This NSC committee is chaired by another direct presidential
advisor, the Deputy Assistant to the President for National
Security Affairs ("DAPNSA 11 ) .
The Deputies Committee ensures that
all papers discussed by the full NSC or the Principals Committee
fully analyze the issues, fairly and adequately set out the
facts, consider a full range of views and
~pinions,
and
-satisfactorily address the prospects, risks, and implications of
~-
each.
The Deputies Committee is concerned, in particular,
with overseeing the implementation of the President's national
security policy among the various agencies and departments
responsible for implementation.
Id.
Finally, the Deputies
Committee is also responsible for day-to-day crisis management
and reporting to the National security Council.
Id.
THE INSTANT PROCEEDINGS
A.
Procedural History of Plaintiffs Claim on NSC
Record-keeping Practices.
The plaintiffs have challenged the NSC's recordkeeping
guidance as contrary to law because, inter .sl.li.A,_it instructs
staff to save certain material as Presidential records when,
plaintiffs contend, NSC records must be scheduled exclusively as
Federal records because NSC is an agency subject to tqe FOIA.
See ArmStrong v. Executive Office of the President, 810 F. Supp.
335, 347-48 (D.D.C. 1993).
This Court previously rejected the
plaintiffs' position, and agreed with the defendants that the
may lawfully designate and segregate presidential and federal
- 32 -
�I
records.
The Court held that NSC's guidelines
.
disti~guishing
Presidential records were not judicially reviewable. · Armstrong,
810 F. supp. at 347-48; Armstrong, 139 F.R.D. 547, 551 (D.D.c.
1991).
The plaintiffs cross-appealed this Court's ruli~g and, as
previously noted, the court of appeals reversed, holding that the
NSC' s guidelines defining Presidential records may be: judicially
reviewed.
Armstrong, 1.F.3d at 1290-96 • .The
·remanded for further proceedings
11
cour~
of appeals
to determine whether NSC's
guidelines inappropriately classify as presidential records
materials that would otherwise be subject to the FOIA."
Id. at
1296.
In reaching its decision, the court of appeals effectively
held that NSC could not maintain such a bifurcated system of .
records -- treating some as "federal" records (and "agency"
records subject to FOIA), and some as "presidential.": Armstrong
v. Executive Office of the President, 1 F.3d at 1290-96 (D.C.
Cir. 1993).
First, the court of appeals found that, since the
definition of a Presidential record in the PRA
specific~lly
.
:::
.
excludes any documentary materials of an "agency" as;:that term is
defined under the FOIA, 44 u.s. c. 2201(2) (B) .(i), the Presidential
Records Act would apply only to records that fall outside the
scope of the FOIA because they are not agency records., ·IS· illt
1292. 26
'
"Put another way, " the court of appeals held, "the PRA
~·-.-...
provides that the definition of "agency" records in th• FOIA
~?RESto~
(continued. "q
1-~
\
26
- 33 -.
~
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~
1o~6
c
o:;
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Next, the court of appeals reaffirmed its decision in Soucie
v. David, 448 F.2d 1067 (D.C. Cir. 1971), that "only entities
'whose sole function is to advise and assist the President' are
not separate agencies subject to the FOIA."
Id. at 1295.
also Ryan v. Department of Justice, 617 F.2d 781
1980).
(D.C~
See .
Cir.
Thus, according to the court of appeals, if an EOP
component is an agency subject to the FOIA, it cannot also create
~
-~ :~~~residential records under the PRA. While the NSC.has subjected
~ · -~ ~ itself to· the procedures of and jurisdiction under FOIA, the
').
*'"S
~c:r
\
~.~
~
court noted that the question of NSC's status had never been
definitively decided.
~.
at 1296.. Hence, the issue this court
must decide on remand if whether the NSC is in fact an "agency"
subject to the FOIA and, thus, creates only Federal records and
not Presidential records.
B.
Prior NSC Recordkeeping Practices and
Decision on Presidential Status
(Throughout this litigation, the defendants have sought to
preserve the right of the National Security Council to maintain
distinct categories of records: (1) those subject to the
/J
Presidential Records Act; and (2) those subject to
t~e ~ederal
Records Act, which may include agency records subject to the
FOIA.J ·Defendants have previously set forth on the record and in
response to plaintiffs' discovery, the system under which NSC
~( ••• continued)
.
trumps the definition of "presidential records" in the PRA."
Armstrong, 1 F.Jd at 1292.
- 34 ~:.~~~"-'~';·'-'"--·c-~"-=·~-~:-~~'\1 - .
::r:.. ~t6NL~BRARY PHOTOCOPY..J
�sought to treat records under both presidential and federal
record statutory schemes and which plaintiffs claim was unlawful.
To briefly summarize that system, the NSC
Secreta~iat
has,
since the Truman Presidency, maintained two major, phy~ically
'
separate filing systems for documents created by .the NSC staff.
See Declaration of Brenda
s. Reger III
! 6; Answer to :
Interrogatory No. 17; Supplemental Answer to Interrogatory No.
a.
Documents are logged into one or the other .system when,they are
.'
. sent to the Secretariat. Id. The "institutional" files contain
documents relating to the formal NSC process.
These typically
include, among others, background or options papers for
discussion in meetings of the Council or a Council sub-group,
memoranda for the President on issues on which consensus has been
~
t
reached, and any resulting Presidential directives to the
5
agencies.
See Answer to Interrogatory No. 6.
These files have
been maintained at the NSC in order to provide continuity in
national security matters between Presidencies.
When their
disposition is appropriate, institutional files have been
scheduled pursuant to the Federal Records Act.
The "Presidential" files contain the rest of the·.work of the
(Nsc staff.
f
See Answer to Interrogatory No. 6.
These f,iles are
treated as exclusively Presidential, subject to the control of
I
Outgoing Presidents, with the exception of
I
:::s:::::d::::n, have transferred these files to their
I
Presidential Libraries.
)
No. 9.
See Supplemental Answer to Interrogatory
However, by special agreement between departing and
- 35 -
�incoming President's, documents in these files have sometimes
also been left behind for purposes of continuity.
Supplemental Answer to Interrogatory No. 9.
See
These files have
been managed pursuant to the Presidential Records Act since 1981.
NSC's past practice in responding to FOIA requests can be
traced to the promulgation of FOIA regulations in
Feb~uary
1975,
not long after the 1974 amendments to FOIA enacted in the fall of
40 Fed. Reg. 7316 (February 19, 1975).
1974.
In these
regulations, the NSC did not concede that it· is, as a matter of
.
~
.
1\..c}·) it-
law, an agency subject to the FOIA.
f~X .P.re&~G~·-h·c....._
Lur-ftl'\\i~t the regulations were
Rather,
"intended to guide NSC Staff response to requests for classified
information under the amended Freedom of Information Act, insofar
as it is applicable." 32 C.F.R. 2101 (emphasis added).
When these regulations were promulgated, the extent to which
the 1974 FOIA amendments applied to the NSC had not been
adjudicated (and, indeed, is the subject of this lawsuit 20 years
later).
Over the past twenty years, the NSC has received
conflicting guidance on its obligations under the FOIA.
In 1973, the Justice Department, Office of Legal counsel
• ·:;.:t·
("OLC"), advised the Counsel to the President that the NSC was
not an agency subject to the disclosure provisions of the
Administrative Procedure Act based on the sole function test. See
Exh. No.
submitted herewith.
The Justice Department also
advised that the NSC could reserve the question of its agency
status and comply
~ith
the Act to the extent possible, but
- 36 -
~;/ "•~·'.;_l!F>~;~ ~" -"~==~-;:}1
'0·.;:·.-·:·Li'NfoN LiBRARY PHOTOCOPY .t'iji ·
\ ' . . . . ... . ': . .
. .
.
j.· '
!'.
~(.
~J
�any FOIA regulations should similarly reserve the question of
agency status.
Id.
In 1978, OLC reversed its 1973 opinion and advised the
·counsel to the President that, "in general," the NSC could be
considered an agency subject to the FOIA due to its relationship
at that time with the Central Intelligence Agency, while
reserving its opinion .on the specific question of whether the NSC
is an agency only for some purposes, or
·records.
(1978).
on~y
in regards to some
See 2 Office of Legal Council Opinions, 197, 205
The NSC continued its policy of maintaining
institutional and Presidential systems and searching the former
in response to FOIA requests.
The propriety of NSC's practice of maintained two filing
systems for institutional/federal and presidential records seemed
to be confirmed in a 1984 decision of this Court which upheld
NSC's policy of searching only
to a FOIA request.
institu~ional
records in response
In Dow. Loehnes & Albertson v. U.S.
Information Agency, et al., Civ. Action. No. 82-2569, slip op. at
3 (D.D.C. Sept. 28, 1984) (Exh. No. __ submitted herewith) ;·the
...
~
court held:
Documents received or generated by NSC in its
Presidential-advisor capacity • • • are not
"agency records" within the meaning of FOIA.
To the extent that NSC, "as an element of the
White House". • • generates documen't.s to.
advise and assist the President, it does not
function as an "agency" within the meaning of .
FOIA. . • • Moreover, documents in the noninstitutional files otherwise obtained by the
NSC do not meet the flexible test for agency
records status described in Bureau of
National Affairs v. u.s. Dep't of Justice
- 37 -
:r:(:::~:-:~~,~~-~--~~~~ .• :~~ ... ;
1
~\<: eiNTONLIBRA~Y PHOTOCOfY .~:Jlf ·
.
�In the first appeal heard in the this litigation, the court
of appeals acknowledged as a factual matter the NSC's practice of
maintaining two types of records.
Because NSC advises the President and has
statutory obligations, it creates both
presidential and federal records.
Armstrong I, 924 F.2d .at 286 n.2.
This Court, accordingly,
declined to review the distinction between Presidential and
·institutional files in evaluating the NSC's recordkeeping
guidance.
Armstrong v. Bush, 139 F.R.D. 547, 551 (D.D.C. 1991).
It was not until the court of appeals' August 1993 decision
that the propriet:Y of NSC maintaining both institutional files,
searched for FOIA requests and scheduled under the FRA, and
Presidential files scheduled under the PRA, was questioned.
In
response to that ruling, the NSC again sought the advice of the
Justice Department's Office of Legal Counsel.
In an opinion
issued in September 1993, OLC advised NSC that it exists solely
to advise and assist the President and is not an agency under the
FOIA.
This opinion was based on the NSC functions set· forth in
.
~
;""
.
50 u.s.c •. § 402; the comprehensive control of the APNSA over NSC
~-
Staff set forth in Presidential directives; a reassessment of
prior OLC analysis of the reach of impact of FOIA on the NSC; and
a change in law regarding the NSC's oversight responsibilities
over the CIA.
In sum, the record reflects that the National Security
council has previously sought to accommodate the important
- 38 -
�interests that underlie the Presidential Records Act, as well as
the Freedom of Information Act and the Federal Records Act, by
seeking to treat distinct categories of records under these
statutes.
However, since its approach to recordkeeping and
information management no longer appears to comply with the law
as analyzed by the D.c. Circuit in the Armstrong case, NSC has
affirmed its historical and current mission of solely advising
and assisting the President on.national security matters.
NSC, however, will not abandon its practice of making CJ.:.:..,-tc...; "'~
m==h information as psrnai:l=le available to.the public.
President
e.. :;1-c.-~) '. s /,..
Clinton has directed that NSC
gQBEiRYQ
to majntain procedures for
making available to the public those NSC records and information
C.V<:.v-L.
/..;..~
67
/k- e>~rfj,;"J.·.
which have previeYsly
~e~,est&
bQQR :ma. 9
fldoN(,',,i.Jf,,vP-;c;.-r.)
.
auailaele in respOiiSe toe FOIA.._
and, as appropriate, NSC records of the Clinton
Administration.
The Executive Secretary has, accordingly,
directed the Information Policy Directorate at NSC to revoke the
current FOIA regulations and.replace them with a voluntary
disclosure policy covering the same documents which previously
were searched in response to FOIA requests:
-.•.r;
NSC records which have previously been
,_
designated and maintained as institutional
records and, thus, which previously have been
searched by NSC in response to FOIA requests,
shall continue to be searched and, subject to
the exemptions from disclosure set forth in
that Act, made available on discretionary
basis -- notwithstanding the NSC's status as
a Presidential entity within the EOP.
,
...
-
39. -
(.{_·"· •, ,( ~~_,,_ff;;:::o.;;;;f~--"-;:...c--'<c~~~~~ - ·'c-:
;i i.
t.
INTON LIBRARY PHOTOCOPY .. 4:
�See Exh. No. __ , Itoh Mem.
ARGUMENT
I.
THE NATIONAL SECURITY COUNCIL IS NOT AN AGENCY WITHIN
THE MEANING OF THE FOIA AND, THEREFORE, CREATES SOLELY
PRESIDENTIAL RECORDS.
A.
An Entity is not a FOIA Agency if its Sole
Function is to Advise and Assist the
President.
The court of appeals ruled in Armstrong II that the
determination of whether an EOP component such as NSC may create
-"Presidential records" under the PRA depends on whether the
component is an "agency" subject to the FOIA.
F.Jd at 1292.
Armstrong II, 1
The FOIA requires each "agency" to make its
records, with certain exceptions, available to any person who
requests them, and grants district court jurisdiction to order
such disclosure.
The FOIA defines "agency" to include "any
executive department, Government corporation, Government
controlled corporation, or other establishment in the executive
branch of Government (including the Executive Office of the
President), or any independent regulatory agency."
§
5
u.s.c.
552(f).
Despite this definition, however, the
11
legislati:ve history
.
"
is unambiguous in explaining that 'Executive Office' does not
include the Office of the President."
Committee for Freedom of the Press, 445
Kissinger v. Reporters
u.s.
136, 156 (1980).
v Also, as discussed in part __ , infra, NSC will continue to
process plaintiffs' pending FOIA request, and a determination on
NSC's status. as presidential would not affect access to these
materials under the provisions of the PRA.
- 40 'i"Nt0~ UBAARY PHOTOCOPY'
,, -
�In addition, Congress made clear that the definition does not
cover "the President's immediate personal staff or
un~ts
in the
Executive Office whose sole function is to advise and .:assist the.
President."
H.R. Rep. No. 93-1380, 93rd Cong., 2d
Sess~
14-15
(1974); S. Rep. No. 1200, 93d Cong., 2d Sess. 15 (197.),
reprinted in, 1974 u.s.c.A.A.N. 6293 (1974) (identical language).
In arriving at this definition, Congress intended to codify the
result reached in Soucie v. David, 448 F.2d 1067 (D.C. cir.
1971) •
See H. Rep. No. 93-1380, at 15. 28
In Soucie, the court of appeals held that the Office of
Science and Technology ("OST"), predecessor to the current Office
of Science and Technology Policy ("OSTP"), is "a separate agency,
subject to the requirements of the [FOIA] • •
F.2d at 1073.
"
Soucie, 448
The court held that congress, in acquiescing to
the Presid'ent's reorganization plan creating the OST, "clearly
contemplated that OST would function as a distinct entity and not
merely as part of the President's
staff~"·
Id. at 1074.
The
court stated that "[i]f the OST's sole function were to advise
and assist the President, that might be taken as an indicat.ion
that the OST is part of the President's staff and not, a separate
agency."
Is;!. at 1075.
However, the court noted that the OST had
28
The House Report to the 1974 FOIA amendments originally
incorporated the definition of an agency under the Administrative
Procedure Act, 5 u.s.c. § 551(1), and the National Security
Council and the Council of Economic Advisers were listed among
examples of such agencies subject to the FOIA. Conferee~ on the
measure deleted specific mention of Executive Office
establishments in favor of the judicially formulated test
forth in Soucie and Kissinger.
- 41 <'
(
•
.,~~~~.,.=-~~~=-;-- .~ ~l·
---
NTQN LIB~RY PHOTOC,OPY. ;: :\[
.~
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0~?RES/I)~\·
.
1-;- .
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~
inherited the "broad power of inquiry" over certain federd (j
~
'2.-D<{bJj
~
'
programs delegated by Congress to the National Science
Foundation.
When this responsibility was transferred, "both· the
executive branch and members of congress contemplated that
Congress would retain control over information on federal
programs accumulated by OST •
It
Id.
Hence, in performing
this function, OST acted essentially as an agent of the Congress.
"By virtue of its independent function of evaluating federal
. programs," the court held, OST did not act solely to advise and
assist the President and, thus, must be considered an agency
under the FOIA.
Id.
In Pacific Legal Foundation v. Council on Environmental
Quality, 636 F.2d 1259, 1263 (D.C. Cir. 1980), the Council on
Environmental Quality ("CEQ") acknowledged that it was an
"agency" under the Sunshine Act, which incorporates the FOIA
definition of the term, contending instead that it was,an agency
only when not advising the President. 29
1263 (D.C. Cir. 1980).
Pacific, 636 F.·2d 1259,
The court of appeals held that ·CEQ was an
agency, emphasizing·that,~s with the OST in Soucie, the CEQ was
.
"independently authorized to evaluate federal program~,."
Pacific, 636 F.2d at 1263.
-'·
In particular, under executive orders
expanding its statutory authorit~the CEQ was authorized to
29
The Court rejected the concept that agency status can vary
depending on which function the entity is performing, relying on
Ryan v. Dept. of Justice, 617 F.2d 781 (D.C. c~r. 1980) {Attorney
General's records, created in role.as Presidential advisor,
regarding judicial nominations, are agency records). Pacific,
636 F.2d at 1264.
·
- 42 -
,t; ,"':~~~~~~-~A- J
fiH
'\ \
LINTON L~BRARY PHOTOCOPY
.y
"'
u
'v
'?f".Jtc~/
"/
�issue guidelines to federal agencies for the
preparation of environmental impact
statements, •• to issue regulations to
federal agencies for implementing all of the
procedural provisions of NEPA, • • (and to]
publish(] and periodically revise[] the
national contingency plan for the removal of
oil and hazardous substances from navigable .
waters.
Pacific, 636 F.2d at 1262 (citations omitted).
Indeed, in
analyzing the holding in Pacific, the court of appeals' recently
stressed that CEQ's regulations were
agencies
. . . ."
"lega~ly
Meyer, 981 F.2d at 1292.
binding on the
such independent
authority rendered CEQ an agency.
The court of appeals provided a more detailed explanation of
the "sole function" test in Rushforth v. Council of Economic
Advisers, 762 F.2d 1038, 1042-1043 (D.C. Cir. 1985), in which it
1\.or
held the Council of Economic Advisers ( "CEA") /\.to be an agency.
Although its organic statute is "for all practical purposes[]
identical" to CEQ's, the CEA was held ::.;olely to advise and assist
the President.
Rushforth, 762 F.2d at 1043.
Congress authorized
the CEA to "assist and advise the President" in preparing the
Economic Report, "to gather" information concerning economic
.
~·
developments, and "to appraise" federal programs
and·~ake
recommendations to the President with respect to those programs,
and "to develop and recommend to the President national economic
policies."
Id. at 1042 n.6; 15 u.s.c.
§
1023(c).
The Court
'
contrasted these functions with the functions at issue in Soucie
and Pacific.
Each one of CEA's enumerated statutory duties
is directed at providing • . • advice and
- 43 -
�assistance to the President. For example,
the CEA is directed to appraise federal
programs relative to a·particular statutory
policy and make recommendations to the
President in that regard. 15 u.s.c.
§ 1023(c)(3).
The duty to appraise is directly
connected to the Council's duty to make
·
recommendations.
Id. at 1042-43.
The Court in Rushforth held that the CEA is not an agency
because it "has no independent authority such as that enjoyed by
either_ CEQ qr OST."
Rushforth, 762 F.2d at 1042.
CEA has no regulatory power under the
statute. It cannot fund projects based on
the appraisal, as OST might, nor can it issue
regulations for procedures based on the
appraisals, as CEQ might.
Id. at 1043.
Consequently, where the independent authority of
OST and CEQ to investigate and regulate federal programs rendered
them agencies, CEA's function of gathering data and appraising
federal programs in order to advise and assist the President
rendered it a non-agency under the sole function test. 3° CEA
also did not ask the court to find that it was both an agency and
not an agency, as CEQ and OST had.
Rushforth, 762 F.2d.at 1041.
Last year, the Court of Appeals held that a group_of .senior
advisers to the President, grouped together within the EOP as the
Task Force on Regulatory Relief ("the Task Force") and chaired by
~ The court in Rushforth held that specific mention of the
Council of Economic Advisers (along with the NSC) as an agency in
the House Report was entitled to "little weight" since "the
Conference elected to embrace a test to be substituted for a
listing of the entities to be included; the outcome of the case
before us should, accordingly, turn on an examination of Soucie
and the sole-function test enunciated in that case." Rushforth,
762 F.2d·at 1040-41. See Meyer, 981 F.2d at 1292.
- 44 -
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.
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-~
�the Vice-President, did not constitute an agency.
F.2d 1288.
Meyer, 981
In this case, the court focused in particular on the
meaning and application of what the term
of the Soucie
11
11
assist 11 means as part
advise and assist 11 sole function test.
The Task Force was staffed with Office of Management and
Budget personnel.
The purpose of the Task Force was to review
pending and past regulations
'and recommend appropriate
11
legislative remedies' 11 to the President.
- 1289-90 (citation omitted).
Meyer, 981 F.2d at
The Task Force was also_. to guide the
Office of Management and Budget in implemP-nting other aspects of
the President's Executive Order on regulatory reform.
F. 2d at 1290.
Meyer, 981
The Court distinguished these functions .from those
of OST and CEQ:
OST was a FOIA agency precisely because. it
could act directly and independently beyond
advising and assisting the President . . . .
* * *
CEQ differed [from CEA], however, because
several executive orders had given it the
power to coordinate federal environmental
programs and to issue guidelines to federal
agencies (as well as] the authority to
promulgate regulations -- legally binding on
the agencies. •
-<
Meyer, 981 F.Jd at.l292.
The Meyer court set out "three interrelated-factors" bearing
on whether
11
those who help the President supervise-others in the
executive branch" solely advise and assist the President.
We must as;~ how close operationally the group
is to the President, what the nature of its
delegation from the President is, and whether
it has a self-contained structure.
-
45 -
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,:II:
\
'
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'
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�Meyer, 981 F.2d at 1293.
The Court found that the Task Force, a
collection of cabinet officials and other senior Presidential
advisers, stood "only a hair's breadth from the Presid·ent" and
••were acting not so much as the heads of their departments, but
rather as the functional equivalents of assistants to the
President • • • • "
Meyer, 981 F.2d at 1294.
See also Nat'l
Security Archive v. Archivist, 909 F.2d 541, 545 (D.C. Cir. 1990)
(holding that the White House Counsel's
Of~ice,
a
c~mponent
the Office of the President, cannot be a FOIA agency) .
of
The Court
also found that the delegation of "responsibility for providing
'guidance' and 'direction' to the OMB Director, and the authority
to resolve disputes between agencies and OMB 'or [to] ensure that
they are presented to the President'" did not show a substantial
delegation of independent authority.
Meyer, 981 F.2d at 1294-95.
Finally, the Court noted that the "lack of a separate staff"
reinforced the conclusion that the Task Force lacked "independent
authority" and was "simply a partial cabinet group."
Meyer, 981
F.2d at 1296.
Thus, cases applying the "sole function to advise
.
~pd;··
assist" test to units within the Executive Office of the
President have turned on two crucial inquiries.
First, is the
entity at issue "close to the President operationally" in the wa
CEA and the Task Force were?
Second, has the entity been
delegated '''substantial independent authority, ' " Meyer .v. Bush,
981 F·.2d 1288, 1292 (D.C. Cir. l993) (guoting Soucie, 448 F.2d a
1073-75), to "take direct action," such as award money,
- 46 -
,~><
:~-:-,;../b_.,.;_~~'-"''-"-i_~.=c ~c-.,,
,-:--::;::;\
\ ·\:· L~t6N Lis~itv PHQT6c6PY ~dJ
.'
:l
�research, or issue gUidelines or regUlations binding on other
agencies or members ofthe public.
Rushforth, 762 F.2d at 1041-
43.
B.
The National Security Council Exists Solely
to Advise and Assist the President
preliminary matter, it is established law that the
Office of the President is not an agency subject to the FOIA.
Kissinger, 445 U.S. at 156.
It is also settled that the office
of the- Assistant to the President for National Security Affairs
is not an agency subject to the FOIA.
Id.
The issue before the Court is whether the National Security
Cc>."..Y,oJ}-,1']
f.,~J;J,_J
6F
Ut<-c..-P/<-J;r/v-/- ~
Council, an assembly oflcabinet-level national security official~
located within the EOP, o¥er which ~he PresideRt pre&iaes hy Ja~
aHa
which ~he Presigent e~era~es diree~ly ~hreY9A bis Natio~al
Se.cu~:ity lla¥iser, nonathelass is.an agency under the FOIA and,
hence, creates only Federal records·and not Presidential records.*
/1
~.
fv-c·.rc~tl..:_ of
P.rc~ ;c.~.
.
C-fc~ .
Dp-v~-1.-.~·~ cl~ •
The NSC' s Statutory Functions I)Qmenstre:te Co-f·vthat it Exists Solely to Advise and Assist
the President.
The starting point for determining whether the Nsc' solely
advises and assists the President must be the National S~curity
Act of 1947.
The statute itself addresses the basic inquiries
raised in Meyer as to "how close operationally" the entity at
- 47 )
�§
402(a).
entity.
This provision makes the President the head of the
Since the Office of the President is not subject to the
FOIA, Kissinger, 445 u.s. at .156, a body such as NSC over which
the President presides also cannot be subject to the FOIA~
Second, the NSC's legislatively created structure also
demonstrates, under the Meyer analysis, that it is not an agency.
Again, under Section 402(a), the statute creates a "council"
which incluqes not only the President and Vice President, but
also several cabinet level officials such as the
State and Defense.
Secreta~ies
of
Other high-ranking officials join the
Council's deliberations, such as the.chairman of the Joint Chiefs
of staff and the Secretary of the Treasury, the Director of
Central Intelligence, and senior White House advisers to the
President such as his Assistant for National Security Affairs.
;.
{:,
The council, then, is an assemblage of advisers, much like the
~~~
President's cabinet, and thereby entirely lacks the structure of
&e.,,· · V'Ac.:...::.
an "agency" of government.
Meyer, 981 F. 2d at 1293.
So
}1...;;......, '
.!J.k..1i the ·-
Task Force in Meyer, these advisers stand "only a hair's breadth
from the President," and are "acting not so much as th.e :he.a.ds of
their departments, but rather as the functional equivalents of
assistants to the President.
"
Meyer, 981 F.2d at 1294.
~
Third, the functions of the NSC set forth in the statute
demonstrate that it exists solely to advise and assist the
President.
As noted above, under the National Security Act of
1947, 50 u.s.c.
§
402, the NSC's functions are: (i) to advise the
President with respect to the integration of domestic,
'*- f:c;,...s·~~s
c\.\c---,
"~-~.\..""~\.._ .. ~
.
- 48 ~~,~~---~
cCs~; ~l·· ·~~~h~RY Pl!QtdCoPY ~1
'-:,
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f\1~.
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I
�and military policies; (ii) to effectively
coordinati~g
the
policies and functions of the departments and agencies;
assess and appraise the objectives, commitments, and risks of
·United States for the purpose of making recommendations to the
President; and (iv) to consider policies on matters of common
interest to the national security departments and agencies and
make recommendations to the President.
(b) and (d).
See 50
u.s.c.
§
40l(a),
None of these functions falls outside the ambit of
advising and assisting the President.
Indeed, the legislative
history of the Act states plainly.that NSC is "an advisory body
to the President with respect to the integration of domestic,
foreign and military policies."
s. Rep. No. 239, 80th Cong., 1st
Sess. 10 (1947}, reprinted in 1947 U.S. Code Cong. Serv. 1487,
1494.
In sum, the NSC cannot be considered an "agencyn subject to
FOIA under its basic statutory charter because: (i) the
President himself presides over its activities; (ii) the entity
itself is an assembly of other cabinet-level national. security
advisors to the President; and (iii} its statutory functions are
purely advisory.
Ultimately, however, the role of the NSC as advisory to the
President is based on more fundamental grounds.
Because the
membership of the NSC includes the President, Vice President, and
the Secretaries of State and Defense, and given its purely
advisory rolg, the National Security Council could
apart from any statutory setting.
~xist
entirely
The President's authority over
'j .. ,.
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�the national security policies of the United States derives from
his authority under Article II, Section 2 of the Constitution as
both commander-in-chief of the Armed Forces and as chief of
state.
See u.s. Const. Art. II, § 1, cl. 1, § 2, cl. 1 & 2.
These constitutional responsibilities form the basis of "[t)he
very delicate, plenary and exclusive power of the President as
the sole organ of the federal government in the field of
international relations -- a power which does not require for its
. exercise an ·act of congress.
" United States v. Curtiss-
Wright Export Corp., 299 U.S. 304, 320 (1936).
This exclusive
power is instead "conferred by the Constitution."
Chicago &
southern Air Lines v. Waterman s.s. corp., 333 u.s. 103, 109
(1948) • 31 •
The role and functions of the National Security Council
cannot be viewed apart from the President's Article II authority
31
An
early Congress expressed this understanding clearly:
The President is the constitutional representative of
the United States with regard to foreign nations. He
manages our concerns with foreign nations and must
necessarily be most competent to determine when, ho~,
and upon what subjects negotiation may be urged with ·
the greatest prospect of success. For his conduct he
is responsible to the Constitution. · The committee
considers this responsibility the surest pledge for the
faithful discharge of his duty. They think the
interference of the Senate in the direction of foreign
negotiations calculated to diminish that responsibility
and thereby to impair the best security for the
national safety. The nature of transactions, moreover,
requires caution and unity of design, and their success
frequently de~ends on secrecy and dispatch.
curtiss-Wright; 299 u.s. at 319 (quoting 8 u.s. Sen. Reports
Comm. on Foreign Relations, p. 24 (1816)) (emphasis added).
-
50 -
..
~
/
',.6. '!;~\'
.•'
'\;; \:,. ·. ~INTON LIBRARY PHOTOCOPY .
. '
\
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(
�over the national security policies of the United states.
The
President cannot personally carry out each task or activity
associated with his constitutional responsibilities over national
security, and the NSC exists to serve as his alter ego to advise
and assist him in carrying out the President's responsibilities.
Hence, the role of the NSC as
11
advisory" does not hinge in the
final analysis on its statutory mandate, but on the fundamental
notion that the Constitution vests in the President plenary
-authority to speak as the sole organ of.the United States in
international relations.
3·
Under Presidential Directives, the
NSC Has Functioned to Advise and
Assist the President.
Other sources of authority are relevant to the que·stion of
whether an entity within the EOP has been delegated "substantial
independent authority" which renders it subject to the FOIA.
~'?
In
.
the case of the NSC, ~- record of its role and functions
may be found in the Presidential directives under which the NSC's
structure and functions are set forth from one administration to
the next to suit the particular needs of the President.
;.
President Clinton's Presidential Decision
Direc~~ve
.
:··,
(POD 2),
is fully consistent with the National Security Act, reaffirming
that the NSC is to be an arm of the President to advise and
assist him in the integration and coordination of national
security policy.
President Clinton's immediate predecessors in
office u·';ilized substantially similar president.:.al directives to
- 51 -~ ~ .....J~;~;~~-~-""~:-~~~;~· -
~~I~T6N LiBRARY -Pl:IOTO~OPY. :.,x
�organize the NSC as an entity to advise and assist the
in the conduct of his national security responsibilities.
Indeed, the directives of Presidents Clinton, Bush, Reagan,
Carter, Ford, and Nixon incorporate each of the following
features: (i) restated the functions of the NSC set forth in the
1947 Act; (ii) designated the NSC as the principal forum for
consideration of national security policy issues requiring
presidential determination; (iii) provided that the NSC's
·function is to advise and assist the President in the discharge
of his national security responsibilities; (iv) directed that the
Assistant to the President for National Security Affairs manage
the NSC system by overseeing the preparatio~ of an agenda and
policy papers; and (v) designated the APNSA and DAPNSA are chair
of key NSC interagency committees. 32
These directives demonstrate that under President Clinton as
well as past Presidents, the NSC system is formally organized
solely to advise and assist the President.
Not only has such a
role been expressly stated by the President, including by
reference to the advisory functions in the 1947 Act, but the
:··,
'.
administration of the NSC system by the President's assistant for
national security affairs, as assisted by the NSC staff,
demonstrates that the NSC process is an instrument subject to
.
'd
d1rect Pres1 en t ' 1 control. -,t..
1a
(\)c.., \~v-
l'iJS c
~\ .:J ~
\1\.o'...--
.s ... \, r i J ;o-r-1-j
''lo"' c~
k'<'V'"JL 1...c{., f '--'"LJ-As with, the Council itself, the functions undertaken by the .c._.__}l..vJ
~NSA and NSC staff ultimately derive no~ from the 1947 Act, but
~·
dt.:v-u..../-
32
-~
..
FOOTNOTE CITE TO ALL
L(.:L: c.d·V. d c.._"' • j\-
cc\:;) ·. \'
-
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- 52 -
�-----------
from the President's authority under Article II of the
Constitution over national security affairs.
The President
cannot personally carry out each task associated with his
national security policies, and the APNSA and NSC staff serve as
alter egos of the President as they advise and assist him in
carrying out the President's responsibilities.
This is the case
whether the APNSA and .NSC staff are involved in advising and
assisting the President directly, or through their efforts to
·administer the NSC process and oversee and coordinate the
President's policy through that process.
Unlike cabinet
secretaries, neither the APNSA, DAPNSA, special assistants to the
President serving on the NSC staff, nor the NSC staff itself,
including the statutory Executive Secretary, are subject to
confirmation by
th~
Senate.
These individuals are appointed
solely by the President, and their role is to assist him in
carrying out his Article II duties.
The regularity of the roles,
functions and administration of the NSC over the past decades
demonstrates its role as an instrument to advise and assist the
President has not changed since its inception.
c.
The Historical Record Demonstrates that the ..
NSC is An Advisory Arm to the President
The historical development of the National Security Council
set forth above demonstrates that it was conceived, established,
and utilized as an instrument of the President, providing advice
and assistance related to the discharge of his core
constitutional national security responsibilities, and molded by
each President to conform to his own personal management style.
- 53 -
�Even before it was created, the Eberstadt study proposed
that:
The National Security Council (NSC) • . .
would only be advisory to the President, for
it was also an accepted premise of the
Eberstadt group, as well as Forrestal and the
Navy protagonists in the unification
controversy, that the President could not be
forced to share the Constitutional
responsibilities of his office.
Hammond at 899.
President Truman also regarded the NSO as an advisory
instrument of the President:
Both the cabinet and council are parts of the
President's immediate official family. As
such, their use and operation in any
particular instance are subject to the
President's personal discretion and
judgment. 33
As Truman NSC aide Sidney Souers put it:
It should therefore be clear that the Council
itself does not determine policy. It
prepares advice for the President as his
cabinet level committee on national security.
With complete freedom to accept, reject, and
amend the Council's advice and to consult
with other members of his official family,
the President exercises his prerogative to
determine policy and to enforce it.
Inderfurth & Johnson, Souers at 50.
President Truman took critical first steps to establish the
NSC as a Presidential arm by making clear its advisory function
and establishing its staff within the EOP.
33
Nelson at 378.
Sidney W. Souers, "Policy Formulation for National
Security," American Political Science Review, 43 (June 1949) 534543, reprinted.in Inderfurth & Johnson, pp. 48-54, at p. 49.
- 54 -
�· The fairly elaborate NSC structure established to support
President Eisenhower met his particular demands for thorough
analysis before national security advice was given to him.
The most obvious was President Eisenhower's
predilection, acquired in his military
service, for completed staff work. He
preferred a policy process which ensured
thorough staff review of papers submitted to
him for consideration.~
Under Eisenhower, "at the Council table all sides are present."
Here, together in give-and-take argument, ·are
the President's principal advisers, stating
their views ·before each other and before the
President, upon whom rests the burden of
decision; questioning and being questioned;
each having his free, full opportunity to
speak before the die is cast.
l.Q..
President Kennedy's use of the NSC system reflected his own
management style: fewer formal meetings and formal papers,. and
far less of a committee structure, and
a~
enhanced use of NSC
staff as independent advisors to the President. Kennedy turned to
1
the NSC "for substantive policy advice rather than for mere
policy coordination" and, in this way, "the NSC became more
visible, more intimate with, and more committed to each
particular president. " 35
He also chose to rely less ori the
~ Robert H. Johnson, "The National Security Council: The
Relevance of its Past to Its Future," Orbis, v. 13, Fall 1969 at
715.
35
Margaret Jane Wyszomirski, "The Deinstitutionalization of
Presidential Staff Agencies," Public Administration Review,
(Sept./Oct. 1982) at 452.
- 55 -
�Council in favor of more informal meetings and special task
forces, underscoring that the role of the NSC is contingent on
how the President chooses to carry our his national security
responsibilities under the Constitution.
President Johnson demonstrated that axiom by relying more on
this own innovations to the NSC process, such as the Tuesday
Luncheon Group.
President Nixon also utilized an NSC system that was clearly
.an extension- of th~ President's direct and personal control over
national security policy.
The Nixon NSC structure reflected the
President's plans to centralize foreign policy making under his
personal control.
Nixon's use of.the NSC system in this manner,
'through Kissinger, was consistent with the view that
[i)t is not, of course, the NSC which makes
decisions. The President makes decisions, in
accordance with his Constitutional
responsibility, and the NSG remains an
advisory body as conceived by the 1947
National Security Act • · • • . 36
President Carter also made clear, even before taking office,
that, "in the f-inal analysis, the national security process he
established would be responsive to his personal
Inderfurth & Johnson at 96.
~-
control.~·
The responsibility for the
conduct of foreign affairs, carter stated, "lies in the White
House with the President" and he "would represent the country in
~ u.s. Congress, u.s. Senate, Committee on Government
Operations, Subcommittee on National Security and International
Operations. The National Security Council: CommenL by Henry
Kissinger, March 3, 1970, 91st Congress, 2nd session (Washington:
Government Printing Office. 1970) ("Kissinger Letter") at 2.
'1siiJC:N "'
- 56 -
t
<(~
1/-<1
<
<:
(i
f.:.
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-~y,6
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"\
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�foreign
aff~irs." 37
The advisory role of the NSC under Carter
was demonstrated in the President's memoirs, where he wrote: that
the NSC staff "was particularly adept at incisive analysis of
strategic concepts, and were prolific in the production of new
ideas, which they were eager to present to me."
Id.
a~
98.
President Reagan's initial treatment of the NSC system
demonstrated his choice to instill direct advisory authority in
cabinet agencies.
.
.
In the aftermath of Iran-contra, he issued a
.
. directive which strengthened the NSC's advisory process, made
clear that the execution and implementation of policies would lie
outside of the NSC and, in particular:
stressed the NSC staff's character as just
that, a staff, and articulated its essential
roles and missions in assisting the security
advisor with assigned management and policy
advisory duties.
Stevens at 120.
In the end, the Reagan-era NSC led to a
reaffirmation of the proper and traditional role of the NSC as an
advisory arm to the President.
The advisory role of the Bush-era NSC is reflected in the
views of Bush's national security adviser, Brent Scowcroft.
According to the Tower Board report, which Scowcroft
~elped
write, the APNSA is to be an "honest broker for the NSC process"
who "assures that issues are clearly presented to the President"
along with "all reasonable options [and] analysis of their
Cee also Kevin v. Mulcahy, "Foreign Policymaking in the
carter and Reagan Administrations," Presidential Studies
Quarterly (Spring 1986), pp. 280-299, reprinted in Inderfurth & IDE
Johnson, pp. 122-135, at 124.
~<(..Y;.S Nt"4(
37
-
57 -
§"
z
~fG
~
J
�disadvantages and risks," and that "the views of the President's
other principal advisors are accurately conveyed."
The APNSA
must also "provide advice from th~ President's.vantage point"
since "the President is [his) only constituency."
TheAPNSA must
also monitor "the actions taken by the executive departments in
implementing the President's national security policies" and "ask
the question whether these actions are consistent with
Presidential decisions • •
"
This reflects the roles that
Scowcroft saw for the NSC process during the·aush Administration
In sum, the record of each President, reflected in
Presidential directives, or the recorded history of their NSC
system, demonstrates that since Truman NSC has been regarded and
treated as an advisory arm which assists _the President in
carrying out his national security constitutional
responsibilities.
D.
.
Presidents Have Not Delegated Independent
Authority to the NSC Though Executive Orders
rtf-
~~.P Jc... J,J;O"Mi.o .~
OS.
orders which further define its organization and mission.
/.fo '-
e-D· rl::>
As discussed infra, the NSC is subject to directives and
Y1t}vV'
i~~-
However, such additional directives must, in the first instance,
'·
be assessed relative to· a particular statutory policy;· Rushforth,
762 F.2d 1042-43, in this case a policy which establishes a
Council to serve as an instrument of the President in the conduct
of national security affairs.
Each of the Executive orders
touching the NSC furthers that purpose.
Since 1947, Presidents have issued Executive orders
designating some of the specific topics on which the NSC is
- 58 -..
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.
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~UN~O~ LIB~i{Y PHOTOCOPY.
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advise the President, as well as the manner in which the NSC is
to assist the President by transmitting his policies to the
agencies and monitoring their implementation.
A review of orders
currently in effect indicates that they do not grant the NSC any
"substantial independent authority to perform specific
functions," but simply require the NSC to provide guidance and
direction for national security policy.
Consistent with its
statutory purpose to advise and assist the President on national
·security issues, current executive orders specify, inter alia,
that NSC shall be involved in the.formulation of policy regarding
national security emergency preparedness, E.o~ 12,656, 53 Fed.
Reg. 47,491 (1988); E.O. 12,472, 49 Fed. Reg. 13,471 (1984); the
protection of sensitive national security information,
E.o.
12356, 47 Fed. Reg. 14874 (1982) and, E.O. 12,829, 58 Fed. R~~.
51,753 (1993); foreign investment, E.O. 11858, 40 Fed. Reg.
20,263 (1975); and intelligence activities, E.O. 12333, 46 Fed.
Reg. 59,941 (1981).
Under E.O. 12,656,
11
[t]he National Security Council is the
principal forum for consideration of national security emergency
·..~; .
preparedness policy."
E.O. 12,656, § 104(a).
The President sets
..
the nation's emergency preparedness policy, and the NSC is
responsible, "[p]ursuant to the President's direction, •• for
developing and administering such policy."
Id.,
§
101(a).
The
director of the operational agency in this area submits "periodic
- 59 r./ ..... ~.~';:r...·r~~sf~;!._:;_~~·~---".::::..::.-·. :
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:·~~.
.
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INTON LIBRARY PHOT0€0PY ..·.!
l.!
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�reports to the National Security Council on implementation."
Id.
S 104{c). 38
Similarly, in regard to national security issues concerning
telecommunications functions in an emergency, the NSC serves to
"[a]dvise and assist the President in coordinating the
development of policy, plans, programs and standards," "[p]rovide
policy direction • • • should the President so instruct," and
receive reports from the agencies.
· §§
2(a)&(b), 1(e) {4).
E.O. 12472,
See also Id.,
§
2(c) (1) (The NSC's
"Planning and Oversight Responsibilities" are to
"advis~
and
assist the President in. • • (c)oordinating the development of
policy. • • (p] roviding policy oversight and direction") . 39
The NSC also provides "overall policy direction for the
information security program" set up by E.O. 12,356, and oversees
the work of the implementing agency, the Information Security
Oversight Office, including approving regulations and
transmitting a report from that office to the President.
12356,
§§
5.1(a), 5.2.
E.O.
Certain decisions of the Director of the
38
The NSC also oversees the Federal Emergency Management ·
Agency's civil defense policies in order to coordinat~ it with
the "Nation's overall strategic policy. •
" E.O. 12148, § 2204, 44 Fed. Reg. 43,239 {1979).
·
~ The regulations implementing these executive orders
similarly stress that, in times of war, the APNSA provides
"general policy direction for the exercise of the war power
functions of the President. • • should the President issue
implementing instructions • • • • " 47 C.F.R. § 202.3(a). In
peacetime, the "National Security Adviser shall. • • [a)dvise and
assist the President in ~oordinating the development of policy . .
• • " 32 C.F.R. S 202.3(c). The NSC's "circular" on these issues_ . .
is issued "on behalf of the President . . . • " 32 C.F.R.
1~'{;_SIDEtvr
4( .
s 213.1(b).
~
- 60 -
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.
..
.
.
~ Lc~lo)
�Information Security Oversight Office, ·which is part of the
General Services Administration, are appealable to the NSC.
Id.,
§§ 5.2(b)(1),(3)&(4). 40
The NSC receives "recommendations and analyses" from the
Committee on Foreign Investment in regards to the impact of
foreign investment in the United States.
E.O. 11858, § 1(c).
Finally, the NSC coordinates the nation's intelligence
effort on behalf of the President.
The NSC is directed to
. •Jadvise the President" with regarQ to intelligence matters and is
consequently charged with providing "review of, guidance for and
direction to the conduct of" intelligence policies and programs.
E.O. 12333, § 1.2(a). 0
The NSC's relationship to the Central Intelligence Agency
does not change the equation.
As part of the NSC's coordination
role, the Director of Central Intelligence is "responsible
directly to the President and the NSC" and .is charged with being·
40
The National Industrial Security Program similarly is run
by the Information security oversight Office "report[ing)" and
"recommend[ing]" to the President through the NSC. E.o. 12,829,
§ 102(b) (7)&(8). The NSC approves the Office's implementing
regulations and serves to manage disputes between tha~ office and
agency heads. Under the authority of the same executive order,
32 CFR § 2003.20(k) provides that "only the NSC may grant and
agency's request for a waiver from the use of the SF 312." In ·
this capacity the NSC is merely assisting the President because
the regulation does not require the NSC to exercise "substantial
independent authority." The actual determination is made by the
Director of the Information Security Oversight Office and the
Department of Justice. See 32 CFR § 2003.20(k). Furthermore,
the NSC does not perform this function on a regular basis.
41
This function requires the NSC to "submit to the
President a policy recommendation, including all dissents, on
each special activity • • • • " Id. at§ 1.2(b).
- 61 -
f,:,£~..,,$;:!;:"~~~,~,_,.=,;~~~~~
. ~::,:·LINTON LiBRARY PH<.itotOPY~ ;~1~
�the "primary adviser to the President and the NSC on national
foreign intelligence ••
11
·~at
§§
1.5
&
1.5(a·).
Accordingly, the Director of the Central Intelligence Agency is a
participant at all NSC meetings, as well as a full member of the
Principals Committee.
402(h).
§
PDD 2, p. 1-2.
See also, 50
u.s.c.
.
The Deputy Director of the Central Intelligence Agency
similarly is a full member of the Deputies Committee.
2.
.
PDD 2, p.
The full participation of the Director and Deputy Director of
·the Central Intelligence Agency reflects the· fact that they
advise the President directly, or through the NSC over which he
presides, or through the APNSA; just as other NSC principal
members.
The NSC, thus, has no independent authority to direct
the Director of the Central Intelligence Agency. 42
Recent changes in the National Security Act of 1947
c.v
v'\r." ~
.
e&taslish that the Central Intelligence Agency·, through its
Director, is responsible directly to the President,~ot to NSC as
an independent authoritY) Section 403 of the Act as it
originally read stated: "There is established under the National
Security Council a Central Intelligence Agency with a Dir.ector of
Central Intelligence who shall be the head thereof, apd with a
Deputy Director of Central· Intelligence who shall act for, and
42
The Director of Central Intelligence is also authorized to
"establish mechanisms which translate national foreign
intelligence objectives and priorities approved by the NSC into
specific guidance for the Intelligence Community • • • • "
Id. at
~ 1.5(m).
Appeals of certain actions by the Director must be
made "to the President." ~' § 1.6(c). Similarly, "special
activities" may be approved only "by the President." Id.,
§ l.B(e).
- 62 -
?
�exercise the powers of the Directory during his absence or
disability •
. . ."
Id.
See 50
u.s.c.
403 (a) (1988).
§
The
Intelligence Authorization Act for Fiscal Year 1993, Pub. L. No.
102-496, amended the National Security Act of 1947 by removing
the NSC as the supervisory body of the CIA.
That section now
simply reads, "[t]here is established a Central Intelligence
Agency."
Other provisions make it clear that the Director of
Central Intelligence, not the NSC, is responsible for supervising
·the activities of the CIA.
See, e.g.,
§
403.-3 (d) .
These statutory changes elim;nate any supervisory authority
over the CIA the NSC once possessed.
Additionally, the 1993 Act
makes the NSC, along with the President, responsible for giving
direction to the Director of Central Intelligence. 43
For
example, the Director is responsible for providing national
intelligence to the President, and others, under the direction of
the NSC.
See
§
403-3(a)
In connection with directing the
'
activities of the CIA, the Director is required "to perform such
7
other functions and duties related to intelligence affecting the
national security as the President or the NSC may direct.n
:·,
403-3(d) (5).
See E.O. 12,333,
§
See
§
'.
1.8(e)&(f).
The NSC does, however, oversee and direct certain Central
Intelligence Agency operations, but only pursuant to Presidential
directives or formal findings.
For example, the President can
c The Director of Centrai Intelligence serves as (1) the
head of the u.s. intelligence community, (2) the principal
adviser to the President for intelligence matters related to.the~D£~
national security, and (3) head of the CIA.
. ~~"4( ~
.
<
- 63 -
0
~ [u~0 ~·
,0
· ~,;iN'TdN LIBRARY PHOTOCOPY·
~
(\J
�u.s.c.
authorize intelligence actions by making a finding.
§
Any significant modification of that intelligence action
similarly requires a Presidential finding.
- - - - u.s.c.
§
Thus, authority the central Intelligence Agency is
that of the President.
III.
APPLICATION OF THE FOIA TO THE ENTIRE NSC, INCLUDING
ITS DOMINANT AND PRIMARY ADVISORY FUNCTION, WOULD BE AN
UNCONSTITUTIONAL INTRUSION INTO THE PRESIDENT'S
CONSTITUTIONAL RESPONSIBILITIES FOR FOREIGN AND
MILITARY AFFAIRS.
If the Court agrees with our first argument that the NSC's
"sole function" is to advise and assist the President, the case
is at an end.
Should the court disagree that the NSC's sole
function is to advise and assist the President, however, then
application of the "sole function" test, subjecting the entire
NSC to FOIA, would result in an unconstitutional intrusion into
the President's core Article II powers as commander in chief and
as the sole organ of foreign relations.
It is clear beyond cavil
that if it is not the "sole" function of the NSC to advise and
assist the President, it is far and away the dominant and primary
function with very
l~ttle
staff activity that could be .
-P
characterized as anything like "substantial independent:'
authority" that defined an agency in Soucie.
In this context, a
literal application of the Soucie "sole function" test would
result in holding that the entire NSC is an "agency" subject to
the FOIA.
also
-
Not only would that result be unconstitutional, it is
a result that Congress cannot have intended, and the. FOIA
must be construed to avoid these constitutional problems.
-
64 -
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�1.
It is well established that the President has a
constitutional right, "grounded in the separation of powers
between the Branches of the Federal Government,"
Univ. of
Pennsylvania v. E.E.o.c., ___ u.s. ___ , 110 s. Ct. 577, 585
(1990) to receive confidential advice from his close advisers.
Accord Public Citizen v. Department of Justice, 491 u.s. 440
(1989); Ass'n of American Physicians and surgeons v. Clinton, 997
F. 2d 898, 909 (D.C. cir. 1993) ("If a President cannot
. deliberate in confidence, it is hard to imagine how he can decide
and act quickly" as envisioned by the Framers).
"This Article II right to confidential communications
attaches not only to direct communications with the President,
but also to discussions between his senior advisers." American
Physicians v. Clinton, 997 F.2d at 909.
Application of the FOIA
to cover the giving of such advice would be inconsistent with the
President's constitutional right to receive unfettered
confidential advice from his advisers.
See Judge Buckley's
concurring opinion in American Physicians v. Clinton, 997 F.2d at
924-25.
See also Justice Kennedy's concurring opinion in Public
Citizen v. Department of Justice, 491 u.s. at 482-489 •..
Moreover, the courts have also been particularly-sensitive
to intrusions into national security deliberations,
du~
to "the
very delicate, plenary and exclusive power of the President as
the sole organ of the federal government in the field of
international rel-tions -- a power which does not require for its
exercise an act of Congress.
. . ."
- 65 -
United States v. Curtiss-
�wright Export Corp., 299 u.s. 304, 320 (1936).
This exclusive
power is instead "conferred by the Constitution."
Chicago &
Southern Air Lines v. Waterman s.s. Corp., 333 u.s. 103, 109
(1948).
See also, u.s. Const. Art. II, S 1, cl. 1,
§
2,
cl~
1 &
2;·oepartment of the Nayy v. Egan, 484 u.s. 518, 527 (1988).
since President Washington refused to "lay before the House
of Representatives the instructions, correspondence, and
documents relating to the negotiation of the Jay Treaty -- a
•.
refusa1 the wisdom of which was recognized by the House itself
and has never since been doubted," it has been recognized that
these Presidential responsibilities preclude Congress from prying
into the relationship between the President and his staff in this .
area.
curtiss-Wright, 299 U.S. at 320 (quoting 1 Messages and
Papers of the Presidents, p.
194).~
Thus, "'(c]ourts have
traditionally shown the utmost deference to Presidential
responsibilities' for foreign policy and military affairs, and
claims of privilege in this area would receive a higher degree of
deference than invocations of 'a President's generalized interest
in confidentiality."'
Harlow v. Fitzgerald, 457 u.s.· 800, 812,
n.18 (1981) (quoting United States v. Nixon, 418 u.s. ·at '710..:
~ Thus, then Representative, but soon to be Chief Justice,
Marshall stated in 1800, "The President is the sole organ of the
nation in its external. relations, and its sole representative
with foreign nations." Annals, 6th Cong., col 613 (March 7,
1800) Cguote4 in curtiss-Wright, 299 u.s. at. 319).
45
Similarly, the Court has held that it may not interfere
with the "conduct of diplomatic and foreign affairs, for which
(continued. ~Q~
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�The give and take among the President's national security
staff is the engine of the advisory process assisting the
President in his constitutional responsibilities for foreignand
·milit~ry
affairs.
Subjecting those communications_to
congressional and judicial review would intrude directly into the
heart of the President's deliberations in this quintessential
Presidential sphere, violating his right to receive confidential
advice from his advisors on foreign and military affairs.
As described above, the NSC is composed· of the President
himself, as well as the Vice-President, the Secretaries of State
and Defense, and other high-ranking officials. close to the
President (see
so u.s.c. 402).
The statute itself refers to the
function of .the NSC to serve as "an advisory body to the
President" on national security issues.
Id.
Its legislative
history makes plain that "essentially, the Council is an advisory
body to the President. "
10 (1947).
S. Rep. No. 2 3 9,, 8Oth Cong. , 1st Sess.
Under this scheme, the President has great discretion
in the manner in which he uses· the NSC in support of the advise
.and assist role recognized in. the statute .. We have shown above
'"':'~
-,.
[that the NSC does not exercise additional functions beyond simply
advising and assisting , and in any event that the NSC does not
exercise "substantial independent authority."
But even if we are
45 ( ••• continued)
the President is exclusively responsible." Johnson v.
Eisentrager, 339 u.s. 763, 789 (1950). Compa~ Nixon v.
Fitzgerald, 457 U.S. 731, 750 (~981) (noting that since foreign
affairs information is 11 'properly held secret"' b.y the President,
-..~
judicial review of executive actions in this area are ,
.
~oN P~~&
"'intolerable"') (quoting Chicago ·& Southern, 333 u.s. at 111.) u...)~
..
0""",
.
\~
~ 67 -
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�in error here, the grant of such additional, ancillary functions
cannot, consistent with separation of powers principles, subject
the NSC's dominant and primary advisory function to congressional
regulation.and judicial oversight.
Under the separation of
powers principles, congress cannot subject to the FOIA an entire
entity that is this close to the President
and indeed of which
he is personally a part -- simply by statutorily assigning that
entity minimal functions beyond rendering advice and
~ssistance~~
-
Indeed, we are aware of no case in which an entity
that includes the President himself has been held to be an agency
subject to the FOIA or any part of the APA.
In short,
application of the FOIA to the National Security Council would
encounter serious constitutional obstacles.
2.
The FOIA should be construed to avoid such a
constitutional confrontation in .accordance with settled
principles of statutory construction holding that courts should
decline to construe statutes to raise unnecessary constitutional
problems.
See Public Citizen, 491 U.s. at
("[W)here an
otherwise acceptable construction of a statute would raise
-~.\.;'
serious constitutional problems, the Court will construe''the ·
statute to avoid such problems unless such construction is
plainly contrary to the intent of Congress"), and American
~
It would, of course, be unconstitutional to hold that
records within the control of a non-FOIA entity -- the APNSA -could be subject to FOIA in any event. It is settled law that
the APNSA is not subject to FOIA, Kissinger, 445 u.s. at 156;
thus, any records personally and directly under his control are ~oN
not SUbJ'ect to FOIA.
~'
,,-
uv
- 68 -
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�Physicians v. Clinton, 997 F.2d at
This principle applies
with particular force when courts address questions of whether
congress intended to regulate the President or the conduct of his
duties.
It is well-settled that the federal courts will hesitate
to hold that Congress intended to regulate the President unless
Congress has explicitly so indicated its intention.
See Franklin
v. Massachusetts, 112 S.Ct. 2767, 2775 (1992); Armstrong v. Bush,
924 F ~ 2d 282, 289 (0. c. Cir. 1991) (Armst:z:ong I)· (the President
is not an "agency" under the Administrative Procedure Act);
American Physicians v. Clinton, 997 F. 2d·at 905.
The statutory definition of "agency" under FOIA, see 5
u.s.c. 552(f) and 5 u.s.c. 551(1), i.n no way compels a reading
that requires coverage of the President and his close advisers.
Armstrong I, 924 F.2d at 1294-1295.
The legislative history of
the FOIA explicitly states Congress's clear intention not to
regulate the President or his close advisers.
Cong., 2d Sess. 14 (1974).
See H.R. 1380, 93d
Indeed, Congress has not only
explicitly refrained from regulating the President through the
'
.
FOIA, it has also been very circumspect in regulating the
·-_s
·
.
President through the Presidential Records Act in order to avoid
a separation of powers clash.
See Armstrong I, 924 F.2d at 290;
Armstrong v. Bush, 721 F. Supp. 343, 350 (O.o.c. 1989).
As the
o.c. Circuit and this Court observed, Congress is well aware of
the questionable nature of its authority to regulate "the conduct
of the President's daily operations," and it therefore legislated
very carefully in the Presidential Records Act, in order not
- 69 -
�interfere with the President's daily operations while in office.
This Court need not and should not raise separation of
powers concerns where Congress has not clearly required it, and
certainly not where Congress has expressly sought to avoid it.
American Physicians v. Clinton, 997 F.2d at
The sole
function test crafted by the court of appeals in Soucie does not
require that battle between the Branches be joined, especially in
the sensitive context of the President's constitutionally
assigned sphere of foreign and military affairs.
The "sole function" test of Soucie was adopted because of
concern that FOIA itself would otherwise be swallowed
~p
since,
in a sense, all federal employees serve the President and may be
said to render him advice and assistance. See Ryan, 617 F.2d at
787-89. If carried to an extreme, this point would mean that
Congress is incapable of subjecting to the FOIA any Executive
Branch agency.
But these concerns have no application in the
case of the NSC, which is composed of the President himself as
well as the Vice President and other high-ranking officials close
to the President. It therefore cannot be compared to tradit_ional
-p.,
departments or agencies, which have been created by Cpngress
under the Constitution to atlminister the laws of the United
States, such as the Department of Justice (Ryan) or the Office of
Science and Technology which Soucie described as an informationgathering arm of the Congress itself. Indeed, in the National
Security Act of 1947
Cot.gress specifically created the NSC as
"an advisory body to the President" (S. Rep. No. 239, 80th
- 70 -
�1st Sess. 10 (1947)) with the defined function of formulating
"advice" to the President "with respect to the integration of
domestic, foreign, and military policies" (50
u.s.c.
402).
In short, since the National Security Act makes clear that
the dominant and core function of the NSC is indisputably to give
advice to the President on national security and foreign policy
issues, and since the NSC itself is so close to the President
(indeed, the President himself serves on and heads the Council),
-the NationaL Security Act fully supports the-conclusion that the
NSC should be regarded as an alter ego of the President or at
least the "functional equivalent" of an Assistant to the
President within the meaning of FOIA.
1294.
See Meyer, 981 F. 2d at
At a minimum, it would be inconsistent with the National
Security Act, as well as the separation of powers principles
expounded above, to hold that Congress intended to open the NSC's
dominant and primary role of advising and assisting the President
on national security and foreign policy issues to congressional
regulation and judicial oversight.
In American Physicians v. Clinton, 997 F.2d at 911, the
·~].'.
court of appeals stated that "[t]he question whether tpe
President's spouse is a 'full-time officer or employee' of the
government is close enough for us properly to construe the FACA
not to apply to the Task Force merely because Mrs. Clinton is a
member."
In so doing the court relied on what it characterized
(997 F.2d at 906) as tne Supreme Court's "extremely strained
construction of the word 'utilized'" in Public Citizen v.
- 71 -
{
(<::-~~~~~-~--~~---~-;-~\
Lt\ ;,LI~HON LIBRARY PHOTOCOPY
?)i
�Department of Justice, 491 U.S. at 455-65. In Public Citizen the
Supreme Court held that the American Bar Association committee
that advised the Attorney General on judicial nominees was not
"utilized" by the President because it was established and run by
a private organization.
If the result in Ass'n of American
Physicians followed g fortiori (see 997 F.2d at 911) from the
Supreme Court's ruling in Public Citizen, the result here is even
more compelling.
No "stretch" is needed to find that Congress
. did not intend to subject to FOIA the entire-NSC, including its
dominant and primary advise and assist function, and thereby to
collide with the President's Article II powers.
IV.
PLAINTIFFS' FOIA REQUEST INCLUDES MATERIALS THAT
·ARE "PRESIDENTIAL"; SUCH MATERIALS WILL BE PROCESSED
FOR PUBLIC RELEASE UNDER THE ACCESS PROVISIONS OF THE
PRESIDENTIAL RECORDS ACT
Plaintiffs' present FOIA request, as embodied in paragraph 1
of the January 27, 1994 Stipulation _and Order (hereafter "! 1
FOIA request"), .includes materials which were not within the
scope of the FOIA at their creation, but which are now subject to
public access under the terms and restrictions of the PRA, 44
u.s.c.
§
2204. 47
For this subset of PRA materials otherwise
within the scope of the ! 1 FOIA request, defendants· intend to
~ As set forth in more detail below, these materials
include approximately 330 of the 800 notes or documents
plaintiffs chose from a listing of materials on certain EOP PROFS
tapes(! 1.a of January 27, 1994 Stipulation and Order), as well
as all NSC PROFS materials within the scope of! 1, id., with the
exception of agency records of NARA covered within the scope of
the court's Sep+:ember 3, 1993 Order (the "Weinberger m.::-:terials").
See! 1(ii), id.
Plaintiffs' present FOIA request, as embodied
in ! 1, was stipulated to by the parties as a substitute for
~oN
their original FOIA request, as amended on February 21, 1992. 0~
P~~-
(J
- 72 -
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.s'0·'.
~
~~
�process all such materials for possible public release over the
next nine month period, in accordance with the procedures set
forth in!! 1-10 of the January 27, 1994 Stipulation and Order,
as well as in accordance with the PRA.
We address the applicable
provisions of the PRA and relevant FOIA case law before turning
to the status of defendants' current PRA/FOIA processing efforts.
A.
Access To Any Materials Originally outside The Scope of
The FOIA Is Governed By The Provisions of the PBA
To restate defendants' position, it is- a settled matter of
law that staff of components of the Executive Office of the
President whose "sole function" is to advise and assist the
President create "Presidential records" pursuant to the PRA,
rather than "agency records" subject to the FOIA.
See Armstrong
II, 1 F.3d at 1292, 1294-95 (citing Soucie v. David, 448 F.2d at
1067); see also 44 u.s.c.
§
2201(2) & 2201(2)
(B)
(i) (defining
"Presidential records" and excludinq "records of an agency" as
defined in the FOIA, 5 u.s.c.
§
552(f)).
Thus, records created
or received by staff of the Office of the President (including
the White House Office and other constituent units of that
Office, including the Office of Policy Development), a~ weli as
the Office of the Vice President and the council of Economic
Advisers, are beyond the reach of the FOIA during the applicable
President's time in office.
See relevant case law and
legislative history citations, supra at pp.
The PRA in turn governs access to "Presidential records"
after a President has left office.
PRA, 44 u.s.c.
§
Under section
2204, a President "shall specify durations,
- 73 -'~~
, !' ~- - - INT6N LiBRARY rHotocoi'v;
"-, "'* ~: '
�to exceed 12 years, for which access shall be restricted with
respect to information, in a Presidential record," within one of
six categories as set out inS 2204(a)(l)-(6).
Under§
2204(b) (1), access to Presidential records or reasonably·
segregable portions thereof, in one of the six restricted
categories, shall be restricted until the earlier of either a
waiver of the restriction by the former President, or the
expiration of the period specified under §2f04(a), 9r a
·determination by the Archivist that the Presidential record has
been placed in the public domain.
Under§ 2204(b) (2), records
which do not contain information in a restricted category, or
contain information in a category where the restrictions have
expired shall, after the earlier of 5 years or the date the
Archivist completes processing of such records, be accessible in
accordance with the provisions of§ 2204(c).
In turn, section
2204(c) states:
Subject to the limitations on access imposed
pursuant to subsections (a) and (b),
Presidential records shall be administered in
aecordance with section 552 of title 5,
United States Code, except that paragraph
··'
(b)(5) of that section shall not be available
for purposes of withholding any Presidential
record, and for the purposes of such section
such records shall be deemed to be records of
the National Archives and Records Administration. • • • •
In other words, Presidential records not subject to FOIA during a
President's time in office become publicly accessible in all
cases after 12 years, in accordance with FOIA law (except for the
unavailability of the (b}(5) exemption for purposes of with- 74 -
�holding).
In some cases, presidential records become accessible
after 5 years (or sooner), depending on restrictions on access
imposed by the former President.
In the case of the former President, prior to the conclusion
of his term in office President Reagan formally specified that
"access shall be restricted to all categories of Presidential
records set forth in Section 2204(a) of the [PRA] for 12 years."
~
Exh. ---.
In subsequent correspondence;, with
th~
Archivist,
the former President waived restrictions for certain designated
subcategories of materials within the statutory categories set
out in§ 2204(2) and (5).
See Exh. ---.
So far as we are aware,
the former President has made no other waivers of the
periods. 48
B.
To The Extent Plaintiffs' FOIA Request Involves
"Presidential" Materials, Access To Such Materials
Will Be Afforded Pursuant to the PRA
The parties' January 27, 1994 Stipulation and Order
contemplates a three-step process for processing materials which
plaintiffs designated as part of their ! 1 FOIA request.
First,
At the time of the original TRO entered in thi~ action,
then-President Reagan's position was that materials on the NSC
and EOP PROFS constituted either electronic copies of what were
presidential records in paper form, or copies of presidential
non-record materials. By subsequent agreement between himself
and the former Archivist, dated.January 19, 1993, former
President Reagan d~signated that backup tapes within the ambit of
the Armstrong suit were to be transferred to NARA "to be
administer[ed) • • • in accordance with applicable law, court
orders, regulation, and agreement • • • • " See Exh. ---.
Counsel for defendants are informed that. former President Reagan
interprets this agreement to allow for the processing of all
materials on the NSC and EOP PROFS backup tapes consistent with
the provisions of the PRA. [cite: letter]
48
- 75 -
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j .:.: .;. INTONLtEUtARY PHOTOCOPY' ;;:)1'. :)
\~';. ·.
:
."
.
.
;·:.,!
�on January 18, 1994 and February 18, 1994, defendants provided
plaintiffs with documents including two large indices,
representing computer-generated listings of all PROFS note and
document entries, as well as additional calendar entries, on
selected EOP PROFS and NSC PROFS backup tapes within the scope of
plaintiffs' ! 1 FOIA request.
Thereafter, plaintiffs made
designations of which entries on the computer-generated lists
they would include within the scope of thei! ! 1 FOIA request, up
to a maximum of 2,450 NSC PROFS entries, 15 calendars from the
NSC PROFS tapes, and 800 EOP PROFS entries (from the OA PROFS
tapes).~
Pinally, defendants have up to nine months after
delivery of plaintiffs' designations to process and release
materials so identified, see! 4 of the January 27, 1994
Stipulation and Order.
All materials identified within the scope
of plaintiffs' ! 1 FOIA request will be released, except for
personal papers, materials exempt from disclosure under FOIA, or
items "that defendants maintain are "Presidential records" for
which disclosure is currently restricted under 44
2204(a)."
u.s.c.
January 27, 1994 Stipulation and Order, ! 6•
Subject to this agreement of the parties, two
§
·:~
dis~inct
categories of materials within the scope of plaintiffs' ! 1 FOIA
request, are properly treated as "presidential."
A.
NSC PROFS Materials
~ Plaintiffs notified defendants of 786 of their 800
designations by letter dated March 7, 1994; a prior set of 13
designations was sent by letter of February 7, 1994. see
Declaration of William Boorman ("Boorman Declaration"), dated
March--, 1994, !! 4-5 (Exh. ---) ..
- 76 -
�Pending a judicial determination of the legal status of the
NSC pursuant to defendants' instant motion, all NSC PROFS
materials within the scope of plaintiffs' ! 1 FOIA request, with
one
exception,~
are properly considered to be within the scope
of the PRA, for the reasons set forth in Parts I-III of this
brief, .supra. 51
With the approval of former President Reagan, 52
and at the direction of_ the Archivist, 53 NSC staff will make
determinations on release with regard to applicable restrictions
.~nd
exemptions under the PRA and FOIA.
B.
EOP PROFS Materials
As described in more detail in the Boorman Declaration, in
the short time since receipt of
pl~intiffs'
800 designations
pursuant to ! 1.a, staff within the EOP's Office of
Administration (OA) have undertaken a preliminary review of
plaintiffs' designations, to determine whether any of the
~ The "Weinberger" materials within the scope of the
Court's September 3, 1993 Order and which are also included
within plaintiffs' ! 1 FOIA request, shall be considered to be
"agency records" of NARA for which no restrictions under the PRA
are applicable, and thus will be processed solely on the basis of
the FOIA.
51
See also n. **, supra (explaining that NSC PROFs
materials or portions thereof previously withheld under the FOIA
which have been the subject of prior Vaughn indices on file with
the Court are also properly treated as "presidential," subject to
the FOIA access provisions incorporated into the PRA).
52
[Counsel for defendants have been informed that former
President Reagan has no objection to NARA and the NSC proceeding
to process these materials as 11pT"esidential records" subject.to
the applicable restrictions imposed by the PRA. cite: letter?]
53
[cite] [letter to be crafted]
- 77 ..-~.~
..
'
'
~L~i~~ LIBRARY PHOTOCOPY ..:·
.,
1
�materials are properly considered to be "presidential."
Declaration, ! 6.
Boorman
As Mr. Boorman states, approximately 330 of
the 787 documents residing in the EOP PROFS document database on
the January 7,· 1989 backup tapes represent documents which,
according to computer codings accompanying the listings of
documents, indicate that they were created or received by
individuals within an office of the EOP which solely advised and
assisted former President Reagan, and which were not
.electronicaliy distributed to or accessed by -any individual
outside such "sole advise and assist" components.
Id.,
C][
7. 54
These documents consist of documents created or received by
individuals within the White House Office (with multiple
subcomponents), Office of the Vice President, Office of Policy
Development, and Council of Economic.Advisors.
Id.! 11.
As
such, they were not "agency records" at their creation, but
rather ttpresidential" at the time of their creation and receipt,
and thus are properly now considered to be subject to the
~ Mr. Boorman made this determination based on: (a)
personal review of the information listed on the document
database index previously provided to plaintiffs, including
information on who created each document, the office(s) of the
user(s) to whom the document was electronically transferred, and
the identification numbers for each item selected by plaintiffs
from the PROFS document index; (b) his review of a sample of
documents selected by plaintiffs; and (c) consultations with .
Terry w. Good, Director o~ Records Management, White House
Office, to verify that such documents were in fact created by, or
distributed to, staff of solely "advise and assist" components of
the EOP. Id. ! 11-13.
- 78 t
i
!
/
.,
�Having made this preliminary assessment, and with the
approval of former President Reagan," defendant OA intends to
work with NARA, to have custody of paper copies of all of the
above "presidential" materials within the scope of the ! 1 FOIA
reques~
transferred to the Reagan Library, for processing within
nine months pursuant to the parties' January 27, 1994 Stipulation
and Order, as well as pursuant to the provisions of the PRA.
Boorman Declaration, ! 8.
Defendant OA shall, however, retain
·custody of any remaining "agency records" within the scope of
plaintiffs' ! 1.a request for FOIA processing in accordance with
the tP.rms of the January 27, 1994 Stipulation and Order.
-
Id. ! -
.
S6
CONCLUSION
For the foregoing reasons, the Court should dismiss the
plaintiffs claim that NSC recordkeeping guidance is not in
accordance with law.
55
[Counsel for defendants have been informed that former
President Reaqan has no objection to NARA and OA proceed~~q·t9
process "presidential" materials on the EOP PROFS tapes as ·
"presidential records" subject to the applicable restrictions
imposed by the PRA. Cite: letter?]
56
Pursuant to! 5 of the January 27, 1994 Stipulation and
Order, the parties have agreed to confer during the processing of
the materials within the scope of plaintiffs' ! 1 FOIA request
"on procedures for expediting the preparation of the Vaughn index
and.narrowing judicial review of exemptions claimed for these
materials." Defendants intend to apply these provisions both
with respect to mater~als solely within the ambit of the FOIA, as
well as to those materials which are properly treated as PRA
materials which in turn are subject to the FOIA.
- 79 -
�Respectfully submitted,
FRANK W. HUNGER
Assistant Attorney general
J. RAMSEY JOHNSON
United States Attorney
DAVID J. ANDERSON
ELIZABETH A. PUGH
JASON R. BARON
ANTHONY ·J. COPPOLINO
PETER D. COFFMAN
Attorneys, Department of
Justice
Civil Division, Room 1020
901 E Street, N.W.
Washington, D.C. 20530
Telephone: (202) 514-4782
Attorneys for Defendants
- 80 .~' .¥~--.~";:.;;_.;;:'~ ~~!'~~~--.-'·:- -----~~;.- .
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Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Previously Restricted Documents
Date
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1993-2001
Description
An account of the resource
<p>This collection contains documents that were previously restricted under the <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act</a> for restrictions P2 (appointment to federal office) and/or P5 (confidential advice between the President and/or his advisors and between those advisors). For more information concerning these collections please see the collection finding aids index. The finding aids detail the scope, content, and provide a box and folder title list for each collection.</p>
<p>The <a href="http://www.archives.gov/presidential-libraries/laws/1978-act.html" target="_blank">Presidential Records Act (PRA)</a> includes provisions that these types of documents be withheld for twelve years after the end of a president's administration. These documents are now being made available to the public. The documents will be released in batches and will be uploaded here as they become available. The documents will also be available in the Clinton Library’s research room.</p>
<p>Please note the documents in this collection may not contain all the withheld documents listed on the collection's withdrawal sheet index.</p>
Publisher
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William J. Clinton Presidential Library & Museum
Extent
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397 folders
Text
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Dublin Core
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2008-0978-F - Public access to NSC documents
Identifier
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2008-0978-F
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Previously Restricted Document Release no. 7
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Adobe Acrobat Document
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William J. Clinton Presidential Library & Museum
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Reproduction-Reference