Whether the court of appeals erred in holding that the Freedom of InformationAct's national security exemption, 5 U.S.C. 552(b)(1), does not apply toa letter sent in confidence from the government of Great Britain to theDepartment of Justice concerning a sensitive extradition matter, where theState Department officials' uncontested affidavits explain that disclosureand the resultant breach of the British government's trust will damage theUnited States' foreign relations both by impairing the United States' abilityto engage in and receive confidential diplomatic communications and by impedinginternational law enforcement cooperation.





In the Supreme Court of the United States

No. 98-1904
UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF JUSTICE; AND UNITEDSTATES DEPARTMENT OF STATE, PETITIONERS

v.

LESLIE R. WEATHERHEAD

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United States of America, the Departmentof State, and the Department of Justice, respectfully petitions for a writof certiorari to review the judgment of the United States Court of Appealsfor the Ninth Circuit in this case.
OPINIONS BELOW

The opinion of the court of appeals (App. 1a-20a) is reported at 157 F.3d735. The opinions of the district court (App. 21a-28a, 29a-42a) are unreported.

The court of appeals entered its judgment on October 6, 1998. A petitionfor rehearing was denied on February 26, 1999 (App. 44a-45a). An amendedorder denying rehearing was entered on March 9, 1999 (App. 46a-47a). Thejurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATUTORY PROVISION AND EXECUTIVE
ORDER INVOLVED
1. Section 552(b)(1) of Title 5, U.S. Code, provides that the Freedom ofInformation Act's general provisions governing disclosure of governmentinformation do not apply to:
[M]atters that are -
(1)(A) specifically authorized under criteria established by an Executiveorder to be kept secret in the interest of national defense or foreign policyand (B) are in fact properly classified pursuant to such Executive order.

2. Executive Order No. 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995) (3 C.F.R.333 (1996)), governing the classification of government information, isset forth at App. 65a-111a.

1. Through the Freedom of Information Act (FOIA), 5 U.S.C. 552 (1994 &Supp. III 1997), Congress attempted "to balance the public's need foraccess to official information with the Government's need for confidentiality."Weinberger v. Catholic Action, 454 U.S. 139, 144 (1981). To that end, FOIAexempts from the government's general duty of disclosure "matters"that an Executive Order "specifically authorize[s] * * * to be keptsecret in the interest of national defense or foreign policy," if thosematters are "in fact properly classified pursuant to such Executiveorder." 5 U.S.C. 552(b)(1).
Executive Order No. 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995) (3 C.F.R.333 (1996)), is the currently applicable order governing the classificationof national defense and foreign affairs information. The Order establishesfour prerequisites to classification: (1) the information must be classifiedby an original classification authority (i.e., an Executive Branch officialauthorized to classify information under the Order); (2) the informationmust be under the control of the government; (3) the information must fallwithin an authorized withholding category; and (4) the classification authoritymust determine that "unauthorized disclosure of the information reasonablycould be expected to result in damage to the national security" andmust be "able to identify or describe the damage." Exec. OrderNo. 12,958, § 1.2(a). "Damage to the national security" isdefined as "harm to the national defense or foreign relations of theUnited States from the unauthorized disclosure of information, to includethe sensitivity, value, and utility of that information." Id. §1.1(l).
Eligible classification categories include "foreign government information"and information concerning the "foreign relations or foreign activitiesof the United States, including confidential sources." Exec. OrderNo. 12,958, § 1.5(b) and (d).1 Information may be classified at oneof three levels: "Top Secret," "Secret," or "Confidential."Id. § 1.3. Information may be classified as "[c]onfidential"if "the unauthorized disclosure of [the information] reasonably couldbe expected to cause damage to the national security that the original classificationauthority is able to identify or describe." Id. § 1.3(a)(3).

2. Sally Anne Croft and Susan Hagan were followers of Indian guru BhagwanShree Rajneesh and were high-level officers in the commune that Rajneeshestablished in Oregon in the 1980s. See App. 2a; United States v. Croft,124 F.3d 1109, 1113 (9th Cir. 1997). When investigations by the United StatesAttorney for the District of Oregon threatened to expose illegal activitiesby community members, a number of the commune's officers, including Croftand Hagan, conspired to murder the United States Attorney. Id. at 1113-1114.In 1994, Croft and Hagan were extradited from Great Britain to stand trialfor that conspiracy. Shortly after their extradition, the British Home Officesent a letter to the Director of the Justice Department's Office of InternationalAffairs concerning the extradition. Both Croft and Hagan were subsequentlyconvicted. Id. at 1114. They have since completed their sentences and returnedto Great Britain.
Respondent is a criminal defense attorney who represented Croft during hercriminal trial. In 1994, respondent submitted a FOIA request to the Departmentsof Justice and State for a copy of the letter from the British government.App. 2a. The Justice Department had possession of the letter but, becausethe letter had been created by a foreign government, it forwarded the letterto the State Department for response to the FOIA request. Id. at 3a. Asit commonly does, the State Department requested the views of the Britishgovernment on disclosure. Id. at 58a. The British government advised thatit was "unable to agree to [the letter's] release," because "thenormal line in cases like this is that all correspondence between Governmentsis confidential unless papers have been formally requisitioned by the defence."C.A. App. Tab 17, Ex. 2 (emphasis in original); App. 3a. The British governmentfurther explained that, "[i]n this particular case," a requestby representatives of the defendants to see the letter had been "refusedon grounds of confidentiality" by the British government. App. 3a.The British government expressed concern that disclosure of even part ofthe letter would set a "precedent" that "would quickly becomecommon knowledge amongst lawyers dealing with extradition matters."C.A. App. Tab 17, Ex. 2. The State Department subsequently classified theletter as "confidential" and informed respondent that the letterwould not be released because it fell within FOIA Exemption 1. App. 3a-4a.

3. Respondent filed suit under FOIA and moved for summary judgment. In opposingthe motion, the government submitted the declaration of Peter M. Sheils,the Acting Director of the State Department's Office of Freedom of Information,Privacy, and Classification Review. Mr. Sheils' declaration explained thatthe letter "was intended by the U.K. Government to be held in confidence"and that violation of that "clearly stated expectation of confidentialitywould cause foreign officials, not only of the government providing theinformation, but of other governments as well, to conclude that U.S. officialsare unable and/or unwilling to preserve the confidentiality expected inexchanges between governments." App. 52a-53a. As a result of such abreach of confidentiality, Mr. Sheils continued, the British and other foreigngovernments would be "less willing in the future to furnish informationimportant to the conduct of U.S. foreign relations" and "lessdisposed to cooperate in foreign relations matters." Id. at 53a. Mr.Sheils therefore concluded that disclosure of the document "would inevitablyresult in damage to relations between the U.K. and the U.S." Id. at54a.
Notwithstanding the Sheils declaration, the district court granted respondent'smotion for summary judgment. App. 21a-28a. The court reversed its ruling,however, on the government's motion to alter or amend the judgment underRule 59(e) of the Federal Rules of Civil Procedure. App. 29a-42a.
In conjunction with its Rule 59(e) motion, the government submitted thedeclaration of Patrick F. Kennedy, the Assistant Secretary of State forAdministration. Mr. Kennedy's declaration elaborated upon the "longstandingcustom and accepted practice in international relations to treat as confidentialand not subject to public disclosure information and documents exchangedbetween governments and their officials." App. 56a. "Diplomaticconfidentiality obtains," he explained, "even between governmentsthat are hostile to each other and even with respect to information thatmay appear to be innocuous," and "[w]e expect and receive similartreatment from foreign governments." Id. at 56a-57a. Mr. Kennedy furtherstated that, in his judgment, "[t]he information in this [requested]document is of a nature that it is evident that confidentiality was expectedat the time it was sent." Id. at 57a. For that reason, disclosure ofthe letter "in violation of the accepted rule of diplomatic confidentialityreasonably could be expected to cause damage to relations between the U.S.and the originating government," because it "may lead not onlythe government directly affected, but also other governments more generallyto conclude that the U.S. cannot be trusted to protect information furnishedby them." Ibid. The resulting "reluctan[ce]" of other governments"to provide sensitive information to the U.S. in diplomatic communications"would "damag[e] our ability to conduct the foreign relations of theU.S. and our national security, in which information received from foreigngovernment officials plays a major role." Ibid.
In particular, Mr. Kennedy stressed that disclosure could imperil the UnitedStates' international "law enforcement interests such as those involvedin the extradition case that is the subject of the document at issue inthis litigation." App. 58a. He continued:
Cooperation between the U.S. and the U.K. in international extradition offugitives is a matter of substantial national interest to both governments.It can also be a matter of political sensitivity in the extraditing country,as has been the case with regard to fugitives extradited by the U.S. tothe U.K. charged with crimes in Northern Ireland and extradition of thetwo women by the U.K. to the U.S. in the case discussed in the British documentat issue here.
Ibid.
The district court did not consider the Kennedy declaration adequate tosupport withholding either, but it did grant the government's request toreview the letter in camera. The court did so out of a concern that "highlysensitive and injurious material might be released only because defendantswere unable to articulate a factual basis for their concerns without givingaway the information itself." App. 27a. "That proved to be thecase." Ibid. The court explained:
When the Court read the letter, it knew without hesitation or reservationthat the letter could not be released. The Court is unable to say why forthe same reason defendants were unable to say why. The letter is two pageslong, tightly written, and there is no portion of it which could be disclosedwithout simultaneously disclosing injurious materials.
Ibid.2

4. a. A divided panel of the court of appeals reversed and ordered the letterdisclosed. App. 1a-20a. On appeal, respondent abandoned his contention thatthe letter did not qualify as information concerning "foreign relationsor foreign activities of the United States." Id. at 7a; Exec. OrderNo. 12,958 §§ 1.2(a)(1)-(3), 1.5 (d).3 Thus, the only issue tobe resolved by the court of appeals was whether the State Department properlydetermined "that the unauthorized disclosure of the information reasonablycould be expected to result in damage to the national security"-i.e.,"harm to the national defense or foreign relations of the United States"-andwhether the Department was "able to identify or describe the damage."App. 7a-8a (citing Exec. Order No. 12,958, §§ 1.1(l), 1.2(a)(4)).
The majority concluded that the "government never met its burden ofidentifying or describing any damage to national security that will resultfrom release of the letter." App. 9a. Specifically, the majority faultedthe Sheils and Kennedy declarations for "focus[ing] on how disclosureby the U.S. of foreign government information causes harm to U.S. foreignrelations, and, thus, to national security even if the content 'appear[s]to be innocuous,'" id. at 13a. The majority rejected that ground forwithholding on the theory that not all information exchanged with foreigngovernments or all extradition communications are categorically deemed confidential.Id. at 14a. The court further declined to give deference to the Executive'sclassification decision based on the Sheils and Kennedy declarations describingthe damage to foreign relations that would result from disclosure. The courtexplained that deference is not due until the government makes "aninitial showing which would justify deference," and here, it concluded,the government's declarations "made no such showing." Id. at 16a.The court therefore decided that it should only "look to the individualdocument itself" in assessing the potential harm to national security.Ibid.
The court of appeals then chose to conduct its own in camera review of thedocument. In doing so, the court stated that it gave deference to the "government'sperspective of the document." App. 17a. After its in camera review,however, the majority labeled the letter "innocuous," statingthat it "fail[ed] to comprehend how disclosing the letter at this timecould cause 'harm to the national defense or foreign relations of the UnitedStates.'" Ibid. The court accordingly reinstated the summary judgmentin favor of respondent. Id. at 18a.
b. Judge Silverman dissented, App. 18a-20a, finding "no basis in therecord to conclude otherwise than that * * * release [of the letter] wouldcause damage to the national security," id. at 20a. He emphasized thatthe government's declarations of confidentiality and harm were uncontrovertedand, indeed, were corroborated by the British government's own refusal ongrounds of confidentiality to release the letter. Id. at 18a-19a.4 JudgeSilverman then concluded (id. at 20a):
[W]e judges are outside of our area of expertise here. * * * [T]he majorityhas presumed * * * to make its own evaluation of both the sensitivity ofa classified document and the damage to national security that might becaused by disclosure. With all due respect, I suggest that in matters ofnational defense and foreign policy, the court should be very leery of substitutingits own geopolitical judgment for that of career diplomats whose assessmentshave not been refuted in any way.
c. Following the court's denial of the government's petition for rehearingwith suggestion for rehearing en banc (App. 44a-47a), the government fileda motion to stay the court of appeals' mandate pending the filing of a petitionfor a writ of certiorari. In support of the motion, the government submittedthe declaration of the then Acting Secretary of State Strobe Talbott, whoexplained (id. at 61a) the importance of maintaining the confidentialityof the letter:
Great Britain is perhaps our staunchest and certainly one of our most importantallies. On a daily basis, the United States engages in complex and sensitivediscussions with the British at various levels on numerous important subjectsof concern, including weapons non-proliferation, trade disputes, mattersbefore the United Nations Security Council, human rights and law enforcement.In many of these areas we have engaged in diplomatic dialogue with officialsof the British in the course of which information was exchanged with anexpectation of confidentiality. Such confidential diplomatic dialogue isessential to the conduct of foreign relations.
The Acting Secretary further stated, with respect to the specific contextof this case, that the extradition of the two women was "a matter ofpolitical sensitivity" to Great Britain. Id. at 62a.
Based upon his personal review of the letter, the Acting Secretary concludedthat disclosure of Britain's confidential communication "could reasonablybe expected to cause damage to the foreign relations of the United States"and, in particular, could impair the "general bilateral relationshipbetween the U.S. and the U.K. on law enforcement and other matters."App. 63a. The Ninth Circuit granted the motion to stay the mandate.

The judgment of the divided Ninth Circuit panel orders the release of asensitive and classified diplomatic communication based solely on the majority'sown conclusion that the document is "innocuous" and that its disclosurecould not reasonably be expected to result in damage to the national securityof the United States. In so holding, the court of appeals expressly refusedto accord any deference to the declarations of the responsible ExecutiveBranch officials, which explained how disclosure of the document would damagethe foreign relations of the United States, both with Great Britain andmore broadly.
The Ninth Circuit's denial of deference conflicts with the decisions ofnumerous other courts of appeals, which have consistently given substantialdeference to Executive Branch classification judgments and affidavits explainingthose judgments. The court's approach also sharply conflicts with repeatedrulings of this Court, which recognize that the separation of powers underthe Constitution mandates that the Executive Branch's classification decisionsbe afforded the utmost deference. The court of appeals' decision, moreover,raises issues of significant and enduring importance regarding the protectiontraditionally accorded to information classified on national security grounds,the United States' ability to obtain confidential and candid communicationsfrom foreign governments and to demand equivalent confidentiality for itsown communications, this Nation's conduct of highly sensitive internationalextradition and law enforcement matters, and our relations with a criticalally. Accordingly, this Court's review is warranted.
1. a. The court of appeals' refusal to give any deference to the sworn declarationsof Executive officials regarding the basis for classification of the confidentialletter from the British Home Office conflicts with the decisions of numerousother courts of appeals, which have consistently accorded such ExecutiveBranch judgments and declarations "substantial weight." See, e.g.,Jones v. FBI, 41 F.3d 238, 244 (6th Cir. 1994) ("In determining theapplicability of Exemption 1, a reviewing court should accord 'substantialweight' to the agency's affidavits regarding classified information.");McDonnell v. United States, 4 F.3d 1227, 1243 (3d Cir. 1993) ("[C]ourtsare required to accord substantial weight to an agency's affidavit concerningthe details of the classified status of a disputed record.") (internalquotation marks omitted); Krikorian v. Department of State, 984 F.2d 461,464-465 (D.C. Cir. 1993) (according "substantial weight to an agency'saffidavit" about the impact of disclosure on "reciprocal confidentiality");Bowers v. United States Dep't of Justice, 930 F.2d 350, 357-358 (4th Cir.)("It is imperative that the court consider and accord 'substantialweight to the expertise of the agencies charged with determining what informationthe government may properly release'" where the foreign governmentexpressly requested secrecy and disclosure "would violate an understandingof confidentiality with the foreign government [and] would have a chillingeffect on the free flow of information."), cert. denied, 502 U.S. 911(1991); Miller v. United States Dep't of State, 779 F.2d 1378, 1387 (8thCir. 1985) ("substantial weight"); Doherty v. United States Dep'tof Justice, 775 F.2d 49, 52 (2d Cir. 1985) (same).5 Those decisions, unlikethe court of appeals' decision here, demonstrate that no "initial showing"by Executive officials is needed in each particular case to "justify"deference; rather, deference is required by the constitutional separationof powers and due regard for the respective institutional roles of the Executiveand Judicial Branches.
Resolution of this conflict is important because, in the absence of a single,uniform rule governing the standard of deference owed Executive Branch classificationdecisions under Exemption 1, FOIA plaintiffs will have an incentive to filesuit within the circuit that accords classification judgments the leastamount of deference. From a practical perspective, discord in the judicialstandards governing review of classification decisions will deny ExecutiveBranch officials and foreign governments a stable framework within whichto engage in candid exchanges of diplomatic information, thereby creatinga real danger of "restricting the flow of essential information tothe Government." FBI v. Abramson, 456 U.S. 615, 628 n.12 (1982). Itwill be of little solace to United States diplomats whose representationsof confidentiality are rendered empty promises-or to foreign governmentswhose secrets are exposed within the Ninth Circuit-that their expectationof confidentiality might have carried the day in another region of the UnitedStates.
b. The court of appeals' holding that no deference was owed to the Executive'sreasons for maintaining the confidentiality of information on national securitygrounds is also flatly inconsistent with numerous rulings of this Court.For example, in Department of the Navy v. Egan, 484 U.S. 518 (1988), theCourt emphasized that the Executive Branch's "authority to classifyand control access to information bearing on national security * * * flowsprimarily from th[e] constitutional investment of power in the President[as Commander in Chief] and exists quite apart from any explicit congressionalgrant." Id. at 527. The Court explained:
For reasons too obvious to call for enlarged discussion, the protectionof classified information must be committed to the broad discretion of theagency responsible, and this must include broad discretion to determinewho may have access to it. Certainly, it is not reasonably possible foran outside non-expert body to review the substance of such a judgment andto decide whether the agency should have been able to make the necessaryaffirmative prediction [of risk to national security] with confidence. Norcan such a body determine what constitutes an acceptable margin of errorin assessing the potential risk.
Id. at 529 (internal quotation marks, citation, and ellipsis omitted).
Similarly, in CIA v. Sims, 471 U.S. 159 (1985), the Court sustained thegovernment's refusal to disclose information on national security grounds,underscoring the inappropriateness of courts superintending Executive Branchjudgments about the need to preserve the confidentiality of communicationsbearing on national security. If foreign governments in the present context,like the intelligence sources in Sims, "come to think that the [UnitedStates] will be unable to maintain the confidentiality of its relationshipto them, many could well refuse to supply information to the [United States]in the first place." Id. at 175. Further, like this Court in Sims,we "seriously doubt" that foreign governments "will restassured knowing that judges, who have little or no background in the delicatebusiness of intelligence gathering" (or, here, foreign diplomacy) willorder the government's secrets revealed "only after examining the factsof the case to determine whether the [government] actually needed to promiseconfidentiality in order to obtain the information." Id. at 176. Simsthus confirms that the State Department's concerns, voiced repeatedly inthe declarations of its officials, about the effect of disclosure on thefuture flow of information regarding extradition and a broad array of othermatters are entirely reasonable, and that the court of appeals' refusalto defer to that judgment exceeds the proper bounds of the judicial function.
As the cited decisions indicate, the deference that Executive Branch classificationdecisions require at each stage of the judicial process derives directlyfrom the separation of powers under the Constitution:
[T]he very nature of executive decisions as to foreign policy is political,not judicial. Such decisions are wholly confided by our Constitution tothe political departments of the government, Executive and Legislative.They are delicate, complex, and involve large elements of prophecy. Theyare and should be undertaken only by those directly responsible to the peoplewhose welfare they advance or imperil. They are decisions of a kind forwhich the Judiciary has neither aptitude, facilities nor responsibilityand which has long been held to belong in the domain of political powernot subject to judicial intrusion or inquiry.
Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111(1948); accord Haig v. Agee, 453 U.S. 280, 289 n.17 (1981). Moreover, asthe Court recognized in United States v. Curtiss-Wright Export Corp., 299U.S. 304 (1936), the President's authority to maintain secrecy is an essentialcomponent of conducting foreign affairs:
In this vast external realm, with its important, complicated, delicate andmanifold problems, the President alone has the power to speak or listenas a representative of the nation. * * * "The nature of transactionswith foreign nations, moreover, requires caution and unity of design, andtheir success frequently depends on secrecy and dispatch."
Id. at 319.6
Given that the rule of deference to Executive Branch classification decisionsand foreign policy judgments is rooted in the Constitution itself, the NinthCircuit's holding that no deference was owed to the explanation by ExecutiveBranch officials of the basis for classification of the confidential letterat issue here-and that deference must be "justif[ied]" by an "initialshowing" in each case-implements FOIA's national security exemptionin a manner that raises serious separation-of-powers concerns. Congressintended no such result. To the contrary, the Conference Report on FOIAexpressed Congress's intent that courts accord "substantial weight"to an agency's "unique insights" regarding the necessity of classification.See S. Conf. Rep. No. 1200, 93d Cong., 2d Sess. 11 (1974).7 It is only bycleaving strictly to that standard of substantial deference, confirmed inthe decisions of this Court and other courts of appeals, that a court canconform its FOIA review to the Constitution's command that the "utmostdeference" be accorded the Executive's judgment regarding the needfor secrecy in the conduct of foreign relations. See United States v. Nixon,418 U.S. 683, 710 (1974).
c. After declining to accord any deference to the Executive Branch declarationssetting forth the basis for concluding that disclosure would result in damageto the Nation's foreign relations, the court of appeals reviewed the letteritself in camera. In doing so, the court purported to give deference tothe "government's perspective of the document" (App. 17a). Butthat was too little too late.
With respect to timing, the rule of deference has long been regarded asapplicable at the outset of any judicial proceeding implicating classifiedmaterials and, indeed, to limit strictly the appropriateness of a court'srelying on in camera scrutiny before sustaining the confidentiality of informationon national security grounds.8
With respect to substance, the separation of powers requires much more thanthe sort of deference the court of appeals recited here. The court statedthat it gave deference to the bare "act of classification" (App.17a)-but again, it appears, not to the underlying justification set forthin the State Department's formal declarations-and the court otherwise reliedsolely on its own reading of the letter. Based on that reading, the courtdeclared the letter "innocuous," opining that its release "couldnot reasonably 'be expected to result in damage to the national security.'"Ibid. The court of appeals offered no explanation for its disagreement withboth the Department of State and the district court on the consequencesof disclosure. It seems clear, however, that the court focused only on thewords appearing on the face of the letter and only on the damage to theUnited States' foreign relations that would result directly and specificallyfrom the release of those words into the public domain. See id. at 11a-12a,13a, 15a.
Thus, the court did not address the impact that the act of disclosure wouldhave on the future ability of the United States to receive confidentialand candid communications in various matters arising in the Nation's relationswith Great Britain and other nations, even though the State Department declarationsdiscussed that harm at length. Nor did the court consider that diplomaticexchanges are not isolated transactions and that the State Department'sjudgment that the letter should remain confidential reflected a sensitivecontextual judgment about the effect disclosure would have within the broaderframework of an ongoing, wide-ranging, and vitally important relationshipwith the British government (as well as relationships with other foreigngovernments). Rather, the expert views of State Department officials, whohave the responsibility and experience to see the foreign relations "forest"and not just the particular "tree," were subordinated to the viewof two judges that the words in a particular document, considered in isolation,seemed "innocuous." Practically speaking, that is no deferenceat all. Such minimizing and second-guessing of the State Department's expertjudgment in this case cannot be reconciled with the measured and limitedapproach of other courts of appeals, which have recognized that judicialreview in this area is narrow and is confined to assessing whether, in theabsence of any evidence of bad faith, there is a plausible connection betweenthe information and the claimed exemption.9

2. In addition to deviating from the proper standard of deference consistentlyrecognized by other courts of appeals and by this Court, the court belowmade a second fundamental error in its analysis. As the State Departmentdeclarations explained, the damage to the United States' foreign relationsthat the Executive Order seeks to prevent can derive not only from disclosureof the words written on a confidential piece of paper received from a foreigngovernment, but also from the very act of disclosure and the attendant breachof a foreign government's trust. The court of appeals, however, refusedto consider that form of harm on the ground that the government did notshow that either all inter-governmental communications or all extraditioncommunications are categorically exempted from disclosure. App. 14a-16a.The court's refusal to consider, let alone defer to, the State Department'sassessment of the damage that would result from disclosing such foreigngovernment information is contrary to the rulings of other circuits andof this Court and, in addition, lacks any basis in the text of the ExecutiveOrder.
a. The court of appeals' insistence that identifiable harm to national securitymust arise from within the four corners of the classified document-and notfrom the repercussions of the breach of confidentiality in its own right-iscontrary to the decisions of other circuits. In Bowers v. United StatesDepartment of Justice, supra, for example, the Fourth Circuit upheld theagency's invocation of Exemption 1 where disclosure of the information atissue would, among other things, "violate an understanding of confidentialitywith the foreign government[ and] would have a chilling effect on the freeflow of information between the United States intelligence and law enforcementagencies and their foreign counterparts." 930 F.2d at 357-358; seealso Krikorian, 984 F.2d at 465 (Exemption 1 applies where release of thedocument would "jeopardize reciprocal confidentiality") (internalquotation marks omitted); cf. Miller v. Casey, 730 F.2d 773, 777 (D.C. Cir.1984) ("agency determinations of whether the national security couldbe injured * * * depend[] less on the content of specific documents"than other FOIA exemptions do).
While those court of appeals decisions arose under a previous ExecutiveOrder, No. 12,356, 3 C.F.R. 166 (1983), rather than under Executive OrderNo. 12,958, that happenstance has no bearing on the conflict. Under bothExecutive Orders, "damage to the national security" is an essentialcriterion in classification decisions. See Exec. Order No. 12,958, §1.2(a)(4); Exec. Order No. 12,356, § 1.3(b). Other than requiring officialsto identify or describe the asserted damage to national security, Exec.Order No. 12,958, § 1.2(a)(4), the new Executive Order left fundamentallyunchanged the specification of what types of injuries to the United States'foreign relations will constitute damage to the United States national security.It is on that point that the circuit conflict arises.
As the court of appeals noted (App. 14a), the new Executive Order also eliminateda presumption in the prior Order that the release of foreign governmentinformation would damage the United States' foreign relations (see Exec.Order No. 12,356, § 1.3(b) and (c)). That alteration, however, in factunderscores the gap between the decision below and the rulings of othercircuits on the issue of deference. The court of appeals here did not simplyfail to heed a generalized presumption; it refused to defer to the expertand individualized judgments of Executive Branch officials focused on theprecise disclosure issue before the court.10
Moreover, and contrary to the court of appeals' apparent view (App. 14a),elimination of the across-the-board presumption that the disclosure of "foreigngovernment information" will always harm national security becauseof the broader impact on diplomatic communications generally plainly doesnot mean that the disclosure of foreign government information will neverharm the national security in that way. And, if there were any doubt aboutwhether a document may properly be classified on that basis, the court ofappeals was required to defer to the construction of the Executive Orderby the Executive officials responsible for its implementation.11 Thus, therevision of the Executive Order in no way bars the Executive from showingthat particular foreign government communications were made against an establishedbackground expectation of confidentiality for diplomatic communications,the breach of which would damage the United States' foreign relations. Rather,elimination of the automatic presumption contemplated only that, in a particularinstance, the established norm of confidentiality in diplomatic relationseither could be outweighed by other considerations or could be waived. Thenew Executive Order therefore requires Executive officials to make a judgmentthat the interest in maintaining the confidentiality of diplomatic discourseshould be invoked with respect to each document. The declarations submittedin this case demonstrate that the responsible Executive officials did preciselythat, and they explain that disclosure would result in damage to the Nation'sforeign relations by undermining that confidentiality.
b. The court of appeals' judgment that the broader harm to national securityfrom breaching the British government's expectation of confidentiality,by itself, was not a valid consideration is in substantial tension withnumerous decisions of this Court. Those cases confirm that the ExecutiveBranch's ability to maintain confidential relationships is critical to itsability to obtain information that is vital to the protection of the UnitedStates' national security and foreign relations. See, e.g., Sims, 471 U.S.at 175 (quoted at page 15-16, supra); Haig, 453 U.S. at 307 ("[T]heGovernment has a compelling interest in protecting both the secrecy of informationimportant to our national security and the appearance of confidentialityso essential to the effective operation of our foreign intelligence service.")(emphasis added); New York Times Co. v. United States, 403 U.S. 713, 728(1971) ("[I]t is elementary that * * * [o]ther nations can hardly dealwith this Nation in an atmosphere of mutual trust unless they can be assuredthat their confidences will be kept."); Snepp v. United States, 444U.S. 507, 512 (1980) (per curiam) ("The continued availability of theseforeign sources depends upon the CIA's ability to guarantee the securityof information.").
Indeed, in Curtiss-Wright, supra, this Court recounted that President Washingtonwithheld documents underlying the negotiation of the Jay Treaty from Congress- not on the basis of an identification of particular secrets in each documentthat would harm the United States if disclosed, but because
[t]he nature of foreign negotiations requires caution, and their successmust often depend on secrecy; and even when brought to a conclusion a fulldisclosure of all the measures, demands, or eventual concessions which mayhave been proposed or contemplated would be extremely impolitic; for thismight have a pernicious influence on future negotiations, or produce immediateinconveniences, perhaps danger and mischief, in relation to other powers.
299 U.S. at 320-321. If the "pernicious influence on future negotiations"was considered a sufficient threat to the public interest for PresidentWashington to refuse to share foreign correspondence even with Congress,a fortiori it is a sufficient basis for withholding the British government'sletter from the public under FOIA.
c. In the analogous context of intelligence information, courts of appealshave recognized that the collection and preservation of information affectingthe national security "is more akin to the construction of a mosaicthan it is to the management of a cloak and dagger affair." Halkinv. Helms, 598 F.2d 1, 8 (D.C. Cir. 1978). As a result,
[t]he significance of one item of information may frequently depend uponknowledge of many other items of information. What may seem trivial to theuninformed, may appear of great moment to one who has a broad view of thescene and may put the questioned item of information in its proper context.The courts, of course, are ill-equipped to become sufficiently steeped inforeign intelligence matters to serve effectively in the review of secrecyclassifications in that area.
United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir.), cert. denied,409 U.S. 1063 (1972).12
The same is true in the conduct of foreign relations. The court of appeals'constricted view of the harm to national security that may be taken intoaccount, however, overlooks that the damage attending disclosure of oneconfidential communication in one extradition case cannot be assessed inisolation. Rather, the harm must be measured by taking "a broad viewof the scene" of extradition and other relations between the UnitedStates and Great Britain (and other nations) and by keeping in mind thatgeopolitical developments can give a document a sensitivity that is notapparent to a non-expert from the face of the document. In addition, theanalysis of harm to the United States' ability to conduct its relationswith other nations must factor in the politically sensitive and volatilecontext in which a government extradites one of its own citizens to standtrial in a foreign land, and the adverse consequences that might ensue fora foreign government as a result if a confidential diplomatic communicationwith the United States were disclosed.
d. The court of appeals believed that consideration of the broader harmarising from disclosure was proper only if either all information exchangedbetween governments or all extradition information was exempted from disclosure.App. 14a-15a. That all-or-nothing approach lacks any basis in law or logic.It certainly finds no basis in FOIA. Exemption 1 applies to all "matters"that are authorized "under criteria established by an Executive order"to be kept secret "in the interest of national defense or foreign policy,"without any suggestion that the exemption is limited to withholding basedon the harm that would result if the contents of a document were in thepublic domain. See 5 U.S.C. 552(b).
Nor does the Executive Order contain any such artificial requirement ofcategorical treatment. The definition of "damage to the national security"reaches harm "from the unauthorized disclosure of information."Exec. Order No. 12,958, § 1.1(l). That language is most naturally readto include harm emanating either from the information itself or from thevery act of disclosure. The fact that the definition goes on to "includethe sensitivity, value, and utility of that information" as relevantconsiderations in assessing the degree of harm (ibid.) is beside the point.The ordinary meaning of the word "include" "is not one ofall-embracing definition, but connotes simply an illustrative applicationof the general principle." Federal Land Bank v. Bismarck Lumber Co.,314 U.S. 95, 100 (1941). Accordingly, the Executive Order envisions thatother measures of harm may also be considered by classifying agencies, suchas broader, institutional impacts on the overall conduct of foreign affairsand extradition matters.
Indeed, the Executive Order separately provides that, if "the release"of classified information will "damage relations between the UnitedStates and a foreign government," the document falls within the extraordinarycategory of information that is exempt from the general ten-year rule fordeclassification. See Exec. Order No. 12,958, § 1.6(d)(6). That specialexception confirms that the damage to foreign relations resulting from releaseof a document is an independent and highly relevant component of the "[d]amageto the national security" covered by the Executive Order.
In short, the court of appeals erroneously transmogrified the requirementthat Executive Branch officials' declarations "identify or describethe damage" to national security that would result from disclosure(Exec. Order No. 12,958, § 1.2(a)(4)) into a requirement of a showingof particularized damage to the national security that is traceable solelyto placing the contents of the document at issue in the public domain.

3. The court of appeals' abandonment of traditional principles of deferenceto Executive Branch classification decisions and foreign policy judgmentsraises issues of great and enduring importance to the United States. Theprospect that courts may make their own independent judgments about maintainingthe confidentiality of national security information-either because deferenceis not deemed to have been "justif[ied]" through an unspecified"initial showing" in a particular case, or because of a disagreementwith the Executive Branch about the causes and nature of damage to foreignrelations that may be taken into account- would have an immediate and deleteriousimpact on the Executive's conduct of diplomatic and other foreign relations.As in Sims, there is little reason for foreign governments "to havegreat confidence in the ability of judges" to make the "complexpolitical [and] historical" judgments that underlie classificationdecisions, since judges "have little or no background in the delicatebusiness" of foreign diplomacy. 471 U.S. at 176. In particular, ifforeign governments cannot reasonably be assured that their communicationswith the United States will enjoy meaningful protection from disclosureand that they will, as a result, be spared the risks to their intereststhat may attend such exposure, the United States will not be able to obtainthe information it so critically needs for the conduct of its foreign relations.The protection accorded confidences of the United States government by othernations may well be eroded in turn. Given the "changeable and explosivenature of contemporary international relations," Haig, 453 U.S. at292, and the breach of trust that disclosure of a foreign government's confidenceswould occasion in foreign relations generally and in the delicate arenaof international law enforcement cooperation in particular, review by thisCourt is warranted.13

The petition for a writ of certiorari should be granted.
Respectfully submitted.