Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. Consolidated Nos. 74 C 3268, 75 C 3295, 76 C 1982. Alfred Y. Kirkland, Judge .
Before Fairchild, Chief Judge, and Swygert, Cummings, Pell, Sprecher and Cudahy, Circuit Judges.*fn*
In this lawsuit plaintiffs are seeking redress for alleged violations of their constitutional rights stemming from the defendants' investigations and intelligence-gathering activities aimed at the plaintiffs and the classes they represent.*fn1 Last June a unanimous panel of this Court reversed the district court and held that the federal defendants (the Government) need not answer two of plaintiffs' interrogatories regarding an informant's identity and the Counter-Intelligence Research Files System. 609 F.2d 277. The Court divided, however, on the question whether defendants need answer an interrogatory that in effect requested certain Army Regulations and a Field Manual relating to domestic intelligence activities and techniques in use from 1966 through 1976.*fn2 Bypassing the Government's argument that the materials constituted state secrets absolutely protected under United States v. Reynolds, 345 U.S. 1, 73 S. Ct. 528, 97 L. Ed. 727, the panel majority held that the documents fell within the exception in the Freedom of Information Act (FOIA) for investigative materials (5 U.S.C. § 552(b)(7)(E)),*fn3 and thus that the district court erred in directing their disclosure. The partially dissenting judge, on the other hand, found the FOIA provision inapplicable and, after reviewing the materials in camera, agreed with Judge Kirkland that no state secrets were involved. The dissent relied in part on the Government's assertion that all military domestic intelligence ceased in 1971 and noted that the trial court's protective order would in any event keep the materials from public view. 609 F.2d at 284-285.
On July 31, 1979, we granted a rehearing en banc limited to the question whether the Army Regulations and Field Manual were producible. The case was reargued on December 3, 1979. We now vacate that part of the district court's order requiring production of the documents so that Judge McMillen, who is now in charge of the case,*fn4 may determine after hearing from counsel for the parties whether there is sufficient need for this material to warrant close scrutiny of the Government's claim of privilege, what parts, if any, of the material should ultimately be disclosed, and whether any alterations should be made in the protective order.
The Government has stated that it believes the requested materials pertain to the "claims of allegedly illegal domestic intelligence activities" (Br. 31) and has not taken issue with a reading of the district court's opinion that would hold the documents relevant (Br. 26).*fn5 Indeed, at the oral argument before the panel, Government counsel upon questioning reaffirmed the Government's belief that the material is relevant. The Government's rigid response is that the state secrets privilege applies to these materials and that regardless of relevance they may not be disclosed. As the basis of its position, the Government relies on an affidavit filed below by the Secretary of the Army invoking the state secrets privilege and asserts that, after giving this affidavit due deference, the district judge was required to hold that "the privilege is absolute" (Br. 12).
Since the teaching of United States v. Reynolds, 345 U.S. 1, 73 S. Ct. 528, 97 L. Ed. 727, is to the contrary, we cannot accept the Government's position. In Reynolds, the Supreme Court did find that a formal claim of privilege would prevail if the trial court were ultimately satisfied that military secrets were at stake. But it also held that claim of the privilege should not be lightly accepted where there is a strong showing of need by the requesting party. Moreover, although the Court stated that the trial court should consider all the available alternatives in assessing a party's need for the material, it directed the district court to accord the claim of privilege correspondingly close consideration as the party requesting disclosure carries its burden of showing need.
As Judge Kirkland rightly concluded below, a party's showing of need often compels the district court to conduct an in camera review of documents allegedly covered by the privilege in order to determine whether the records are properly classified "secret" by the Government. Any other rule would permit the Government to classify documents just to avoid their production even though there is need for their production and no true need for secrecy. As stated in Reynolds, supra at 9-10, 73 S. Ct. at 533 "(judicial) control over the evidence in a case cannot be abdicated to the caprice of executive officers." Moreover, judicial scrutiny of government domestic security claims is particularly appropriate. See United States v. United States District Court, 407 U.S. 297, 320, 92 S. Ct. 2125, 2138, 32 L. Ed. 2d 752; Ray v. Turner, 190 U.S. App. D.C. 290, 587 F.2d 1187, 1194-1195 (D.C. Cir. 1978).
Judge Kirkland originally found that plaintiffs sufficiently showed a need to secure the desired information because the "military defendants' records are the only source of evidence which would establish the exact nature of domestic intelligence activities so that this Court might determine whether these activities were lawful" (Government App. 74). Since Judge Kirkland is no longer to try this case, however, we think that Judge McMillen should satisfy himself that plaintiffs have sufficiently shown a need for production. In resolving this question, Judge McMillen should consider all options available to plaintiffs, including any alternative methods of discovery such as the depositions suggested in Reynolds, 345 U.S. at 11, 73 S. Ct. at 533.
Significantly, our preliminary in camera examination of the material causes us to conclude that the existence of state or military secrets therein is sufficiently dubious that the formal claim of privilege may not prevail if Judge McMillen determines that the material is needed by plaintiffs. But Judge McMillen's inquiry should not end there. Substantial portions of the material seem so remotely related to plaintiff's claim as to raise questions whether the Government's interest in protecting this material should be swept away. Thus without disclosing to plaintiffs' counsel the text of the documents in question, Judge McMillen should determine in colloquy with counsel for the parties (perhaps in chambers) whether any individual portions of documents (or the documents as a whole) are not reasonably calculated to lead to the discovery of admissible evidence and therefore are not producible under Rule 34. Finally, Judge McMillen should decide whether Judge Kirkland's protective order of October 14, 1976, should be broadened in order to safeguard any of the materials that are ultimately made available to the parties.*fn6
The Government relies on Halkin v. Helms, 194 U.S. App. D.C. 82, 598 F.2d 1 (D.C. Cir. 1978), in part to suggest that the materials must be protected because the procedures described by the Regulations at issue also applied to foreign intelligence conducted both in this country and abroad. The thrust of this assertion is that it may not be completely possible to segregate any information that is useful for purely domestic surveillance from foreign intelligence material that is not. This argument is better directed to the district court and Judge McMillen can properly consider such matters in following the directives of this Court. We note, however, that our own review of the material indicates that Halkin is no bar to disclosure of the documents once need and usefulness are shown. The documents at issue here, unlike those in Halkin, do not strictly concern past and ongoing foreign intelligence gathering. Nor do these documents appear to involve more than very general intelligence techniques. They are unlikely to reveal to any foreign power the fact that surveillance of its activities has occurred, the targets and the extent of such surveillance, or the means by which it was accomplished, and therefore require no protection on that basis.
After the en banc argument, the Government sent the Court copies of the opinion in Hayden v. National Security Agency, 197 U.S. App. D.C. 224, 608 F.2d 1381 (D.C. Cir. 1979). That case concerned the procedure for determining whether requested documents fall within two exemptions of the Freedom of Information Act and is not germane in view of the Government's disavowal of any reliance on that statute (see note 3 supra ). Furthermore, the procedures we direct for the remand are consonant with the spirit of Hayden.
Insofar as the district court's order of March 28, 1978, requires production of the Army Regulations and the Field Manual it is vacated and the cause is remanded for further proceedings consistent herewith.
PELL, Circuit Judge, dissenting, in which SPRECHER, Circuit Judge, joins.
By sending this case back for further proceedings at the district court on the matter of the Army Regulations and Manual, it appears to me that this court, as did the district court judge to whom the case was originally assigned, is ignoring the clear mandate of United States v. Reynolds, 345 U.S. 1, 10, 73 S. Ct. 528, 533, 97 L. Ed. 727 (1953), that when "from all the circumstances of the case, . . . there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged . . . the occasion for the (state secret) privilege is appropriate, and the court should not jeopardize the ...