Keeping secrets: Congress, the courts, and national security information

Harvard Law Review

Volumn 103, Issue 4, 1990, Pages 906-924

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EID: 0142078526     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1341480     Document Type: Article

References (81)

1. Kirkpatrick, Commentaries and Exchanges on Foreign Policy, in THE FETTERED PRESIDENCY 44, 45 (L. Crovitz & J. Rabkin eds. 1989).
2. Freedom of Information Act of 1966, 5 U.S.C. § 552 (1988).
3. See infra p. 909.
4. Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, III (1948).
5. See Exec. Order No. 8381, 3 C.F.R. 634 (1938-1943). Prior to President Roosevelt's order, information classification was left to military regulation. See Relyea, The Presidency and the People's Right To Know, in THE PRESIDENCY AND INFORMATION POLICY 1, 16-18 (H. Relyea ed. 1981).
6. Pub. L. No. 418, ch. 2, § 1, 52 Stat. 3, 3 (1938).
7. Id.
8. Exec. Order No. 10,290. 3 C.F.R. 789, 793 (1949-1953).
9. Id. at 790.
10. See Developments in the Law -The National Security Interest and Civil Liberties, 85 HARV. L. REV. 1130, 1196 (1972) [hereinafter Developments, National Security].
11. See Exec. Order No. 10,501, 3 C.F.R. 979 (1949-1953). Eisenhower's order provided the blueprint for subsequent executive orders governing classification. See, e.g., Exec. Order No. 11,652, 3 C.F.R. 678 (1971-1975) (Nixon); Exec. Order No. 12,065, 3 C.F.R. 190 (1978) (Carter); Exec. Order No. 12,356, 3 C.F.R. 166 (1982) (Reagan).
12. Moorhead, Operation and Reform of the Classification System in the United States, in SECRECY AND FOREIGN POLICY 87, 95 (T. Franck & E. Weisband eds. 1974) (quoting Availability of Information from Federal Departments and Agencies: Hearings Before the House Comm. on Government Operations, 85th Cong., 1st Sess. 2146 (1955)).
13. Moorhead, Operation and Reform of the Classification System in the United States, in SECRECY AND FOREIGN POLICY 87, 95 (T. Franck & E. Weisband eds. 1974) (quoting Availability of Information from Federal Departments and Agencies: Hearings Before the House Comm. on Government Operations, 85th Cong., 1st Sess. 2146 (1955)).
14. Id.
15. See id. at 98.
16. See 5 U.S.C. § 552(b)(1)-(9) (1988). The nine exceptions are for: (1) national security information; (2) government personnel practices; (3) information specially protected by statute; (4) trade secrets or privileged financial information; (5) inter- or intra-agency memoranda that would be privileged from discovery in litigation; (6) personnel, medical or other similar files; (7) investigatory records used for law enforcement; (8) records derived from federal regulation or examination of financial institutions; and (9) geological and geophysical information. See id.
17. See, e.g., SENATE COMM. ON THE JUDICIARY, FREEDOM OF INFORMATION ACT SOURCE-BOOK 1 (1974) ("Because the execution of [the FOIA] by 'those who direct and administer our agencies of government' has been substantially less than 'faithful,' [it appears] that the act has become a "freedom from information" law, and that the curtains of secrecy still remain tightly drawn around the business of our government.'" (quoting Executive Privilege, Government Secrecy and Freedom of Information: Hearings Before the Subcomms. on Administrative Practice and Procedure and Separation of Powers of the Senate Comm. on the Judiciary, 93d Cong., 2d Sess. (1973))).
18. See, e.g., SENATE COMM. ON THE JUDICIARY, FREEDOM OF INFORMATION ACT SOURCE-BOOK 1 (1974) ("Because the execution of [the FOIA] by 'those who direct and administer our agencies of government' has been substantially less than 'faithful,' [it appears] that the act has become a "freedom from information" law, and that the curtains of secrecy still remain tightly drawn around the business of our government.'" (quoting Executive Privilege, Government Secrecy and Freedom of Information: Hearings Before the Subcomms. on Administrative Practice and Procedure and Separation of Powers of the Senate Comm. on the Judiciary, 93d Cong., 2d Sess. (1973))).
19. New York Times Co. v. United States, 403 U.S. 713 (1971).
20. 410 U.S. 73 (1973). In Mink, the Supreme Court held that Congress, in enacting the FOIA, did not intend that district courts review the propriety of executive branch secrecy classifications that served to shield information from FOIA request. See id. at 84.
21. See 5 U.S.C. § 552 (b)(1)(B) (1982).
22. See infra text accompanying notes 24-25.
23. S. CONF. REP. No. 1200, 93d Cong., 2d Sess., reprinted in 1974 U.S. CODE CONG. & ADMIN. NEWS 6285, 6290.
24. See, e.g., Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984); Stein v. Department of Justice, 662 F.2d 1245, 1254 (7th Cir. 1981); Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); Baez v. Department of Justice, 647 F.2d 1328, 1335 (D.C. Cir. 1980); Lesar v. Department of Justice, 636 F.2d 472, 481 (D.C. Cir. 1980); Hayden v. National Sec. Agency, 608 F.2d 1381, 1386-87 (D.C. Cir. 1979).
25. See Exec. Order No. 12,356, 3 C.F.R. 167-68 (1982).
26. See Exec. Order No. 12,356, 3 C.F.R. at 167 (1982). In fiscal year 1988, 6654 government officials possessed "original" classification authority. See INFORMATION SECURITY OVERSIGHT OFFICE, ANNUAL REPORT TO THE PRESIDENT, FY 1988, at 5 (1988). (Officials with "original" classification authority are authorized to classify information not previously classified, whereas those with "derivative" classification authority can only classify information which incorporates previously classified information. See Exec. Order No. 12,356, 3 C.F.R. at 171 (1982). This Note focuses on the dynamics of original classification authority.) Although officials with original classification authority may be found at over 70 executive branch agencies, departments, and offices, 99.5% of all original classification activity in fiscal year 1988 took place within the Departments of Defense, State, and Justice, and the Central Intelligence Agency. See INFORMATION SECURITY OVERSIGHT OFFICE, supra, at 7. Officials with original classification authority may "consider for classification" information that concerns: (1) military plans, weapons, or operations; (2) the vulnerabilities or capabilities of systems, installations, projects or plans relating to national security; (3) foreign government information; (4) intelligence activities (including special activities), or intelligence sources or methods; (5) foreign relations or foreign activities of the United States; (6) scientific, technological, or economic matters relating to national security; (7) United States Government programs for safeguarding nuclear materials or facilities; (8) cryptology; (9) a confidential source; or (10) other categories of information that are related to national security and that require protection against unauthorized disclosure as determined by the President or by other officials with original classification authority. See Exec. Order No. 12,356, 3 C.F.R. at 168.
27. Exec. Order No. 12,356, 3 C.F.R. at 171.
28. See id. at 169.
29. See infra pp. 911-12.
30. E. ABEL, LEAKING: WHO DOES IT?, WHO BENEFITS?, AT WHAT COST? 36 (1987).
31. Id. Former Dean of Columbia's Graduate School of Journalism Eli Abel writes that "when it suits an administration's purpose to leak secret information to the press, it simply ignores or temporarily overrides a document's classification." Id. at 34; see also M. HALPERIN & D. HOFFMAN, TOP SECRET 39-40 (1977) (contending that "the prevailing system of disclosure . . . is primarily oriented toward the parochial needs of members of the executive branch," and that "the criteria for [information] release are determined not by the public interest in informed debate but by the particular interest of those who control the information"). Halperin is a former Deputy Assistant Secretary of Defense and former staff member of the National Security Council. See also Affidavit of Theodore C. Sorenson, filed in New York Times Co. v. United States, 403 U.S. 713 (1971), quoted in Comment, A Nation Less Secure: Diminished Public Access to Information, 21 HARV. C.R.-C.L. L. REV. 409, 412 n.16 (1986) [hereinafter Comment, A Nation Less Secure]. Sorenson, a White House official during the Kennedy Presidency, wrote: [I]t was not unusual for me or other government officials to . . . quote from [classified documents] . . . or otherwise utilize them in "off-the-record," "background," or other kinds of sessions . . . . No formal authority was sought or obtained for such use . . . . On the contrary, [high ranking administration officials] knowingly and deliberately disseminated such information from time to time in order to advance the interests of a particular person, [or] policy. Id.; see also infra note 36.
32. 1986 WL 15352 (No. 85-2685, D.D.C., July II, 1986).
33. Id. at 1-2.
34. Id. at 7.
35. See id.
36. Besides being problematic on its own terms, overclassification erodes the legitimacy of proper classification decisions. If officials perceive that their colleagues are overclassifying, they will themselves feel less reluctant to leak material whose damage potential is not clearly defined. As Justice Stewart observed in his Pentagon Papers concurrence, "when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion." New York Times Co. v. United States, 403 U.S. 713, 729 (1971) (Stewart, J., concurring); see also E. ABEL, supra note 28, at 31 (quoting former State Department spokesperson Hodding Carter).
37. Consider Watergate co-conspirator Egil Krogh's pre-sentencing hearing observations about the "national security" imperatives that motivated the burglary of Daniel Ellsberg's psychiatrist's office: "'I see now . . . the effect that the term 'national security' had on my judgment. . . . It seemed at least presumptuous if not unpatriotic to inquire into just what the significance of national security was. . . . Freedom of the President to pursue his planned course was the ultimate national security objective.'" Shattuck, National Security a Decade After Watergate, 1983 DEMOCRACY 56, 57.
38. See supra note 29; see also REPORT OF THE PRESIDENT'S SPECIAL REVIEW BOARD at V-5 to V-6 (Feb. 26, 1987): The selective leak has become a principal means of waging bureaucratic warfare. Opponents of an operation kill it with a leak; supporters seek to build support through the same means. . . . Rather than a means to obtain results more satisfactory than the position of any of the individual departments, [foreign policy processes] ha[ve] become something to be manipulated to reach a specific outcome. The leak becomes a primary instrument in that process. Id.
39. The above formulation of the misinformation problem neglects a different type of scenario, in which misinformation is directed not at the American public, but at foreign actors or entities. That is, government officials may release inaccurate information in order to misdirect or confuse foreign adversaries. Such deliberate dissemination of inaccurate information is intended to benefit national security; hence, this type of activity should arguably be excluded from heightened FOIA review. It is, however, often difficult to categorize unequivocally a particular instance of misinformation as being legitimately directed at foreign actors, or illegitimately aimed at the American public. Most examples of what initially appears "objectionable" misinformation could easily be reformulated and justified by seemingly legitimate foreign policy considerations. Thus, because motive inquiries are imprecise and problematic, one must consider government misinformation either presumptively unacceptable (thus occasionally hindering the pursuit of national security objectives), or categorically acceptable (consequently compromising the government accountability imperatives underlying classification propriety review). In light of the last twenty-five years of U.S. foreign policy, including the United States' secret operations in Laos and Cambodia, Watergate, and the Iran-Contra affair, this Note argues that the overinclusion option is preferable to underinclusion.
40. See supra p. 909.
41. Such a disclosure rationale would penalize the executive for the actions of unauthorized, "renegade" leakers. In a "renegade leaker" scenario, subordinates leak information that high ranking officials wish to keep classified. It could be argued that it would be unfair to compel disclosure in such circumstances. If a renegade exception were made, however, the executive would no doubt argue that the vast majority of leaks are in fact unauthorized. Indeed, the nature of executive branch bureaucracy makes it very difficult to determine whether a leak is in fact sanctioned or whether it is renegade. A renegade exception, then, would likely be substantially overbroad. Rather than tolerate such overbreadth, Congress should encourage the executive to better police and secure its own house, and to take those steps necessary (and constitutionally permissible) to deter leaks by truly dangerous renegades.
42. A number of courts have commented favorably on this argument for disclosure but have not actually employed it to defeat an executive claim of national security FOIA exemption. See Military Audit Project v. Casey, 656 F.2d 724, 744-45 (D.C. Cir. 1981); Founding Church of Scientology v. National Sec. Agency, 610 F.2d 824, 831-32 (D.C. Cir. 1979); United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir. 1972); Lamont v. Department of Justice, 475 F. Supp. 761, 772 (S.D.N.Y. 1979). Other courts have expressly rejected "leak nullification" arguments; they contend that only "official" government disclosures can serve to void executive assertions of damage resulting from disclosure. See Afshar v. Department of State, 702 F.2d 1125, 1130-31 (D.C. Cir. 1983); Phillippi v. CIA, 655 F.2d 1325, 1332-33 (D.C. Cir. 1981); Peterzell v. CIA, 1986 WL 15352 at 7 (No. 85-2685, D.D.C., July 11, 1986); Schlesinger v. CIA, 591 F. Supp. 60, 68-69 (D.D.C. 1984). The rationale for the "official" acknowledgment restriction is that certain disclosure harms are realized only when the executive expressly admits that it is the source of certain information. Under such an analysis the difficult question is what constitutes "official" acknowledgment? Is attribution to an "unnamed" executive source sufficiently official, or must one hold a press conference or issue a formal press release? Such questions are necessarily context-specific - likely there will be instances when there will be no significant difference in the harm resulting from unofficial as opposed to official disclosure, and some instances where the harm resulting from official disclosure might be distinct and particularly serious. The fluid nature of such inquiries suggests that courts should not impose a wooden official/unofficial distinction on leak nullification arguments, and should not dismiss out of hand the notion that in some cases unofficial or quasi-official leaks could indeed void executive classification rationales.
43. See supra p. 909.
44. See, e.g., United States v. Nixon, 418 U.S. 683, 710 (1974); United States v. Reynolds, 345 U.S. 1, 6-7 (1953); Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948); Totten v. United States, 92 U.S. 105, 106-07 (1876); see also New York Times Co. v. United States, 403 U.S. 713, 726-27 (1971) (Brennan J., concurring); id. at 728 (Stewart, J., concurring). Note that executive assertions of the state-secrets privilege significantly predate its judicial recognition. See, e.g., Developments, National Security, supra note 10, at 1192 (describing President Washington's &refusal to honor a request by the House of Representatives for the documents relating to the negotiation of the Jay Treaty").
45. Snepp v. United States, 444 U.S. 507, 509 n.3 (1980).
46. 108 S. Ct. 818 (1988).
47. Id. at 825 (quoting CIA v. Sims, 471 U.S. 159, 170 (1985)).
48. The Constitution directs that the "executive Power shall be vested in [the] President," U.S. CONST, art. II, § 1, cl. 1, that the President "shall be Commander in Chief of the Army and Navy of the United States," id. art. II, § 2, cl. 1, that the President shall both "appoint Ambassadors" with the advice and consent of the Senate, see id. art. II, § 2, cl. 2, and "receive Ambassadors" from other countries, see id. art. II, § 3, and that the President has the power to "make Treaties" with the advice and consent of the Senate, see id. art. II, § 2, cl. 2. Reasoning from these constitutional delegations, the Supreme Court has asserted that "foreign policy [is] the province and responsibility of the Executive." Haig v. Agee, 453 U.S. 280, 293-94 (1981). For additional judicial affirmations of the President's broad foreign affairs powers, see Egan, 108 S. Ct. at 824; Sims, 471 U.S. at 172-73; Regan v. Wald, 468 U.S. 222, 225-26 & n.2 (1984); United States v. Pink, 315 U.S. 203, 228-30 (1942); and Justice Sutherland's famous dictum in United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936). Justice Sutherland wrote that the President is vested with "very delicate, plenary and exclusive power . . . as the sole organ of the federal government in the field of international relations - a power which does not require as a basis for its exercise an act of Congress." Id.; see also Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 Yale L.J. 1255, 1305-17 (1988) (surveying judicial deference to the executive in interpreting the "national security constitution"). Many scholars disagree with Justice Sutherland's famous characterization in Curtiss-Wright of the President's foreign affairs power as being "plenary" or thoroughly unfettered in nature. See, e.g., E. CORWIN, THE PRESIDENT: OFFICE AND POWERS 171 (1957); L. HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 32-39 (1972); Glennon, Two Views of Presidential Foreign Affairs Power: Little v. Barreme or Curtiss-Wright?, 13 YALE J. INT'L L. 5, 11-17 (1988).
49. Brief for Appellees at 25, American Foreign Serv. Ass'n v. Garfinkel, 109 S. Ct. 1693 (1989) (No. 87-2127) (Brief written by the Justice Department on behalf of Garfinkel, the director of the executive's Information Security Oversight Office).
50. New York Times Co., 403 U.S. at 728-30 (Stewart, J., concurring). Similarly, in Curtiss-Wright, Justice Sutherland observed that "[s]ecrecy in respect of information . . . may be highly necessary" to the proper exercise of the President's foreign affairs power. See 299 U.S. at 320.
51. 403 U.S. at 728 (Stewart, J., concurring).
52. Id.
53. U.S. CONST, art I, § 8, cl. 1.
54. Id. art. I, § 8, cl. 11.
55. Id. art. I, § 8, cl. 14.
56. See id. art II, § 2, cl. 2.
57. Id. art I, § 8, cl. 18.
58. Id. art. I, § 9, cl. 7.
59. See Franck, Improving the Performance of Congress in Foreign Policy, 11 GEO. MASON U.L. REV. 183, 186 (1988): The power of the purse insures the perpetuity of congressional participation in the making of foreign policy. . . . To give the President exclusive power over foreign relations, it would be necessary to give him exclusive power to tax and spend, something lost for heads of state of the Anglo-American tradition with the head of state lost by Charles I. Id.
60. Compare, e.g., id. (recognizing Congress' time-honored purse power) with, e.g., Moore, Do We Have an Imperial Congress?. 43 U. MIAMI L. REV. 139, 145-46 (1988) (suggesting possible unconstitutional conditions problems with congressional conditions placed on foreign affairs appropriations).
61. See, e.g., L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 4-4, at 221-23 (2d ed. 1988); Franck, supra note 57, at 186; Stith, Congress' Power of the Purse, 97 YALE L.J. 1343, 1360-63 (1988). The series of Boland Amendments implicated in the Iran-Contra affair illustrates this power of Congress. The original amendment prohibited U.S. government aid "to any group or individual, not part of a country's armed forces, for the purpose of overthrowing the Government of Nicaragua." Further Continuing Appropriations Act, 1983, Pub. L. No. 97-377, § 793, 96 Stat. 1830, 1865 (1982). As a result of negotiations with the executive, the aid bar was modified in later amended versions of the appropriations rider. For a detailed history of the Boland Amendment chronology, see HOUSE SELECT COMM. To INVESTIGATE COVERT ARMS TRANSACTIONS WITH IRAN & SENATE SELECT COMM. ON SECRET MILITARY ASSISTANCE TO IRAN AND THE NICARAGUAN OPPOSITION, REPORT OF THE CONGRESSIONAL COMMITTEES INVESTIGATING THE IRAN-CONTRA AFFAIR, H.R. REP. No. 433, S. REP. NO. 216, 100th Cong., 1St Sess. 395-407, 489-99 (1987). Other examples of congressional purse power exercise include the International Security Assistance and Arms Export Control Act of 1976, Pub. L. No. 94-329, § 404, 90 Stat. 729, 757-58, which prohibits U.S. governmental assistance to organizations conducting military or paramilitary operations in Angola absent express congressional authorization, and the Act of July 1, 1973, Pub. L. No. 93-52, § 108, 87 Stat. 130, 134, which precludes funding for U.S. military operations in Cambodia and Laos.
62. See THE FEDERALIST No. 48, at 308 (J. Madison) (C. Rossiter ed. 1961).
63. Madison endorsed Montesquieu's view that the separation of powers concept does not mean that the three branches "ought to have no partial agency in, or no control over, the acts of each other," but only that "where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted." Id. No. 47, at 302-03 (J. Madison) (emphasis in original). The Supreme Court has echoed this proposition in its separation of powers cases. See, e.g., Mistretta v. United States, 109 S. Ct. 647, 658-59 (1989); Morrison v. Olson, 108 S. Ct. 2597, 2620 (1988); Nixon v. Administrator of Gen. Serv., 433 U.S. 425, 443 (1977); Buckley v. Valeo, 424 U.S. 1, 121 (1976); United States v. Nixon, 418 U.S. 683, 704 (1974); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).
64. See THE FEDERALIST No. 75, supra note 60, at 451 (A. Hamilton).
65. See New York Times Co., 403 U.S. at 728 (Stewart, J., concurring).
66. The Supreme Court has adopted such rhetoric in upholding Congress' power to issue subpoenas pursuant to its inherent investigatory power and to punish with contempt citations those who fail to comply with investigatory demands. Despite the absence of authorizing constitutional provisions, the Court in McGrain v. Daugherty, 273 U.S. 135 (1927), found that "[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change." Id. at 175. Consequently, the "power to secure needed information . . . has long been treated as an attribute of the power to legislate." Id. at 161; see also Barenblatt v. United States, 360 U.S. 109, 111 (1959) ("The scope of [Congress1] power of inquiry, in short, is as penetrating and far reaching as the potential power to enact and appropriate under the Constitution."); Watkins v. United States, 354 U.S. 178, 187 (1957) (stating that congressional power "to conduct investigations is inherent in the legislative process").
67. Pub. L. No. 96-450, 94 Stat. 1975. 1981 (codified as amended at 50 U.S.C. § 413 (1982)).
68. See 50 U.S.C. § 413(a)(1) (1982). For a detailed look at the congressional oversight of intelligence activities, see Colton, Speaking Truth to Power: Intelligence Oversight in an Imperfect World, 137 U. PA. L. REV. 571 (1988).
69. S. REP. No. 730, 96th Cong., 2d Sess. 5, reprinted in 1980 U.S. CODE CONG. & ADMIN. NEWS 4192, 4195.
70. See id. at 3, reprinted in 1980 U.S. CODE CONG. & ADMIN. NEWS at 4194.
71. See Exec. Order No. 12,333, 3 C.F.R. 214 (1981).
72. United States v. American Tel. & Tel. Co., 567 F.2d 121, 128 (D.C. Cir. 1977) ("The executive [contends] that the Constitution confers on the executive absolute discretion in the area of national security. This does not stand up. While the Constitution assigns to the President a number of [national security] powers . . . it confers upon Congress other powers equally inseparable from the national security."); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952) (Jackson, J., concurring).
73. Passage of the 1974 FOIA Amendments, which provided for judicial review of classification determinations, is a case in point. President Ford vetoed the legislation on the grounds that the de novo review provision was not sufficiently deferential to executive branch classification decisions, and that it could prove detrimental to national security. See Comment, A Nation Less Secure, supra note 29, at 477 & n.343. Nevertheless, Congress overrode President Ford's veto, and the fifteen-year history of the de novo review policy suggests no significant impairment of the executive classification power or of the executive foreign affairs power.
74. 108 S. Ct. 2597 (1988).
75. 109 S. Ct. 647 (1989).
76. See Mistretta, 109 S. Ct. at 659; Morrison, 108 S. Ct. at 2620.
77. Morrison, 108 S. Ct. at 2621 (quoting Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 856 (1986); and Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 443 (1977)).
78. Mistretta, 109 S. Ct. at 660 n.13 (quoting Nixon, 433 U.S. at 443). For a cogent critique of the Mistretta Court's analytical framework, see The Supreme Court, 1988 Term - Leading Cases, 103 HARV. L. REV. 279 (1989).
79. See supra note 46.
80. Dissenting in a recent case, Justice Scalia contended that there may be a "'textually demonstrable constitutional commitment'" of national security issues to the executive branch. See Webster v. Doe, 108 S. Ct. 2047, 2059 (1988) (Scalia, J., dissenting) (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)).
81. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 647 (1952) (Jackson, J., concurring).