WILLIAM H. WEBSTER, DIRECTOR OF CENTRAL INTELLIGENCE, PETITIONER V. JOHN DOE No. 86-1294 In the Supreme Court of the United States October Term, 1987 On Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit Reply Brief for the Petitioner The principal energy behind respondent's claim is his contention that the Director's interpretation of Section 102(c), 50 U.S.C. 403(c), is an offense to the ideal of the rule of law and threatens to oust the courts from their central role as guardians of legality and the rights of citizens. As we show in some detail, that contention is a hobgoblin. It is respondent who proposes what would amount to a heretofore unknown and mischievous intrusion into the tightly circumscribed domain of the secret intelligence agencies. We submit for this Court's judgment an exceedingly narrow proposition -- one that was mandated by Congress -- regarding a very limited and unusual type of agency, a proposition we offer only in respect to a very limited range of decision by the heads of those agencies, and then only as to a specified kind of person standing in a defined relation to those agencies: The head of an intelligence agency must have the final and unreviewable authority to dismiss an employee from its service. And of course it is the province of this Court to determine whether this narrow proposition holds at all, and if it does what are its limits. A. Respondent argues (Br. 16-17) that the writ of certiorari should be dismissed as improvidently granted because, he contends, the only issue presented is whether he can obtain judicial review of his constitutional claims, and that issue was conceded away by petitioner in the courts below. That assertion is wrong. It is obvious from a reading of the court of appeals' decision that statutory as well as constitutional claims remain in the case on remand to the district court. /1/ Further, respondent misreads the record in claiming that petitioner has conceded the availability of judicial review for constitutional claims. In the district court, we argued, inter alia, that separation of powers principles preclude a court from reviewing any of respondent's claims, and that because respondent's constitutional claims were insubstantial, the district court did not need to decide whether judicial review of colorable constitutional claims would be barred. /2/ In the court of appeals, we argued that, under settled law, including the D.C. Circuit's decision in Dronenburg v. Zech, 741 F.2d 1388 (1984), respondent's constitutional claims were insubstantial and that the court of appeals need not decide whether Section 102(c) precludes review of a colorable constitutional claim. /3/ At no time in either court did we take the position that a court could review respondent's particular constitutional claims. To the contrary, in both courts we asserted clearly and at some length the proposition that judicial review of respondent's substantive claims is barred by Section 102(c). /4/ When read in this context, the remarks cited by respondent certainly do not constitute a concession that respondent is entitled to judicial review of his constitutional claims. The statements in the district court that the Director does not have "power to act unconstitutionally" (2/25/83 Tr. 37) and that the government did not assert that Section 102(c) "insulates (the Director) from the Constitution" (2/25/83 Tr. 51) are plainly correct. They say only that the Director is obligated to comply with the Constitution in carrying out his responsibilities under the Act, and say nothing about the availability of judicial review. The other cited statement in the district court -- that government counsel "suppose(d)" it "would be possible" for a claim to be raised "which would introduce constitutional issues that would have to be resolved by the Court" (2/25/83 Tr. 38), likewise is fully consistent with our current position. Unlike the present case, which we argued below raised no colorable constitutional claim, other constitutional claims might not be so easily resolved. The constitutional question of the reviewability of such claims -- which we maintained was not presented in this case -- would then have to be answered. The only comment made below that remotely approaches a "concession" is the statement that a court may determine whether the Director in fact made the finding required by the statute that an employee's dismissal was "in the interest of the United States" (3/13/86 Tr. 16). That remark is a far cry from a concession that respondent can obtain review of his particular constitutional claims. Finally, if there were any doubt left about the matter, the court of appeals' decision shows that it considered and rejected the position that Section 102(c) forecloses review under the APA of constitutional claims. /5/ Pet. App. 24a, 27a-28a; id. at 33a (Ginsburg, J., concurring). That question was presented in our petition and is properly before the Court in this case. /6/ B. Respondent's answer to our preclusion argument is essentially that Section 102(c) differs from the statutes relating to discharge of National Security Agency (NSA) and Defense Intelligence Agency (DIA) personnel in that Section 102(c) does not bar judicial review expressly. He argues further that this deficiency cannot be offset by the additional evidence of congressional intent which we have adduced. 1. The fact that the statutes governing the NSA and the DIA expressly provide that the action of the Secretary of Defense is "final" shows merely that Congress would draft Section 102(c) differently today. Section 102(c) was written in 1947 and must be read in "its contemporary legal context" (Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 379 (1982) (citation omitted)), /7/ not that of today. /8/ The Court's decisions during the relevant period did not require a statute to state expressly that judicial review was foreclosed for a statute to be given that effect. See Ludecke v. Watkins, 335 U.S. 160 (1948). It is a crucial part of the explanatory legal context of Section 102(c) that, as a matter of black letter law in 1947, federal employees served at the will of the appointing officer and courts could not review personnel actions absent express statutory authorization. Pet. Br. 11-12 & n.8, 16; e.g., White v. Berry, 171 U.S. 366 (1898). It is further clear that neither of the statutes which would otherwise possibly have applied to CIA employees -- the Lloyd-LaFollette Act, 5 U.S.C. (1940 ed.) 652, and the Veterans' Preference Act of 1944, 5 U.S.C. (1946 ed.) 863 -- empowered the courts to undertake judicial review. Thus, Congress, in promulgating a statute conferring complete discretion on the Director, had no reason to be more explicit concerning judicial review. The root inquiry is whether Congress intended the Director to have the final say in a removal dispute. In the national security area Congress has consistently left to the Executive the decision whether to discharge an employee. In recent years Congress has used the term that the action of the Secretary of Defense shall be "final." 10 U.S.C. (Supp. IV) 1604(e); 10 U.S.C. (Supp. IV) 1590(e). Section 102(c) makes the same point without using that term. In 1947 the only body with authority to reverse a decision to remove a federal employee was the Civil Service Commission, and it could do so only for a veteran. 5 U.S.C. (1946 ed.) 863. Section 102(c) lifted even that limited restraint from the Director's removal authority, and thereby made the Director's decision as "final" as it would have been if that term had been written into the statute itself. Moreover, as we pointed out in our opening brief in this case (at 12-13 n.9) and argued in detail in our brief in United States v. Fausto, No. 86-595, the Civil Service Reform Act of 1978, 5 U.S.C. 7501 et seq., provides the exclusive vehicle for a federal employee to obtain judicial review of his discharge. Section 102(c), however, expressly denies employees like respondent any rights under the federal civil service laws, as the D.C. Circuit recognized in a decision handed down after the one in this case. See Neely v. United States, No. 86-2266 (Nov. 24, 1986), cert. denied, No. 86-6716 (Oct. 5, 1987). It therefore was error for the court here to afford respondent greater rights under the APA than he would have under the CSRA. Nor does respondent anywhere explain why the decision to remove a CIA employee is not one committed to the Director's discretion by Section 102(c). The language of Section 102(c) precisely tracks the requirements of the Administrative Procedure Act (APA), 5 U.S.C. 701(a)(2), and could not be clearer in this regard. Nor does Section 102(c) contain any standard by which a court can rationally evaluate the Director's action. Respondent has offered no guideline for a court to use to determine whether an employee's removal is "in the interests of the United States" (see Br. 37). Deciding whether a particular employee should no longer have access to classified intelligence information is an inherently discretionary judgment that courts are not equipped to review, and that in any event could not be adjudicated in the course of a lawsuit without compromising sensitive interests. See CIA v. Sims, 471 U.S. 159, 176, 179 (1985). The reinstatement remedy sought by respondent also militates against review of the Director's actions. Respondent's ultimate conclusion in this suit is that he should be returned to "a covert position as an electronics technician" with the CIA (Pet. App. 3a), despite the Director's objection that respondent's access to and participation in the CIA's sensitive day-to-day operations is not in the nation's interests. Like the 13th chime of the clock, this contention alone should give the Court pause about what has come before. /9/ 2. Respondent's interpretation of Section 102(c) makes nonsense of Congress's determination to safeguard the integrity of the decisions by the heads of the intelligence services to remove employees. Respondent concedes (Br. 27-28 & n.12) that the Secretary of Defense has the unreviewable authority to remove civilian intelligence personnel from the NSA, the DIA, and the military departments. /10/ Respondent does not deny that Congress enacted the laws granting the Secretary of Defense that authority in order to provide him with the same authority that Congress thought the Director already possessed (Pet. Br. 24-25 & nn.20-21). And respondent does not question the CIA's central role in the intelligence community (Pet. Br. 26). Thus, respondent concedes that the head of every intelligence branch -- except the one that Congress specifically chartered to oversee and coordinate all of the government's intelligence operations (ibid.) -- has unreviewable authority to remove an employee like respondent. Indeed, Congress conferred that authority on the Secretary of Defense on the assumption that the Director of the CIA already possessed it. 3. Respondent also finds fault in our reliance on other statutes enacted contemporaneously with Section 102(c) and on the existing statutory scheme governing employement in the intelligence community. That evidence of congressional intent cannot simply be dismissed, as respondent would (Br. 24-35), on the ground that Congress knows how to preclude review expressly when it wants to do so, or that it is nothing more than subsequent legislative history that can be disregarded when interpreting an earlier statute. The essential point is that Congress has consistently determined (in words chosen from the legal lexicon of the time) that whether a person should be employed in an intelligence branch is a judgment that should be made not by the courts, but by officials in the Executive Branch who are accountable to the President and Congress for protecting the nation's security. /11/ Respondent contends (Br. 25-27) that the APA changed the entire landscape, by bringing about judicial review of personnel actions. But the APA did not have the effect respondent attributes to it. In adopting that statute, Congress was careful to exclude disputes regarding the "selection or tenure of an employee" from the requirements governing formal agency adjudications, since Congress did not intend the APA to reduce the Executive Branch's discretion over personnel matters. /12/ Congress therefore scarcely intended to reverse the long standing rule that federal personnel decisions are presumptively unreviewable by authorizing the courts to review agency action under the APA. And the APA surely does not purport to limit the President's authority to select which persons may receive access to classified information. Deciding whether a person should continue to be employed by the CIA necessarily entails a decision about whether such person should have access to classified information because the nature of the Agency's work requires that all Agency employees be approved for access to classified intelligence information. Whatever Congress may have thought "the full implications" of the APA would be (Resp. Br. 25), Congress did not intend to restrict the President's authority to safeguard intelligence operations by denying employees access to sensitive information. 4. Respondent argues (Br. 21-24) that the Court's decision in Service v. Dulles, 354 U.S. 363 (1957), rejected our contention that Section 102(c) precludes judicial review under the APA. In Service, a former employee of the State Department challenged his dismissal under the McCarran Rider, /13/ which granted the Secretary of State plenary authority to dismiss State Department employees. Although the court of appeals held that it could not review the Secretary's action, this Court reversed, on the ground that it could determine whether the Secretary had complied with State Department regulations governing dismissals. 354 U.S. at 373-389. Respondent argues that, since the Court found the Secretary's action reviewable in Service for compliance with the agency's own regulations despite a similar preclusion staute, the Director's action in this case is also reviewable despite Section 102(c). Respondent misreads the decision in Service. First, in view of circumstances peculiar to the enactment of the McCarran Rider, it does not follow from Service that Section 102(c) allows judicial review even of the very limited question of compliance with CIA regulations. As this Court noted in Service (354 U.S. at 377-379), the State Department had informed Congress that it would exercise its authority under the McCarran Rider in accordance with existing Departmental regulations, this representation was relied on by Congress in enacting successive versions of the Rider, and that course was endorsed in writing by the President. /14/ No such representations accompanied the enactment of Section 102(c). Second, even if Section 102(c) were read to allow review of the Director's action for compliance with CIA regulations, that conclusion neither suggests that any broader review is appropriate, nor supports respondent's argument here. This Court in Service did not question the conclusion of the court of appeals that judicial review was limited to compliance with procedural requirements -- it simply disagreed with the lower court in determining what those requirements were. Also, as we have explained (Pet. 26), the court of appeals here ruled that the Director in fact complied with whatever CIA regulations might be relevant in removing respondent (Pet. App. 19a-23a). Service therefore does not aid respondent. Respondent also claims (Br. 30) that Cole v. Young, 351 U.S. 536 (1956), supports his position, because the Court in that case determined whether a related preclusion statute, the Act of August 26, 1950, 5 U.S.C. 7532, was applicable to a particular employee. The question whether a preclusion statute is applicable to a particular employee, however, is distinct from the question whether a court may review an action taken under a preclusion statute which is conceded to apply. Cole held only that a court may review the former question. See Doe v. Weinberger, 820 F.2d 1275, 1279, 1283 (D.C. Cir. 1987), petition for cert. pending, No. 87-751. Indeed, Cole implied that the head of an agency who properly acts under 5 U.S.C. 7532 would have "the final say" whether an employee should be removed. 351 U.S. at 546. Thus, Cole supports our position, not respondent's. 5. Respondent argues (Br. 37-38) that he should be entitled to obtain review under the APA because the Director's actions can be reviewed under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16. In our view, Title VII is not applicable to discharge actions taken under Section 102(c). While it is correct that a CIA employee has recourse to Title VII in connection with other aspects of his employment relationship, it has never been held that he may invoke Title VII to challenge the Director's discharge decision, which is the only type of decision covered by Section 102(c). Nor has it been established that Title VII expressly or impliedly repeals Section 102(c). /15/ Even if respondent were correct about the applicability of Title VII to discharge cases (and this case does not require the Court to resolve the point), that would not change the analysis of this case, which does not involve Title VII. /16/ Respondent also suggests (Br. 38-39) that allowing redress under Title VII for any range of personnel decisions is inconsistent with our contention regarding the Director's ultimate authority under Section 102(c). To the contrary, the dispute-resolution framework established under Title VII, and the Agency's own established procedures for resolving employee disputes, which essentially follow EEOC regulations (CIA Headquarters Reg. 9-1 EEO Program (May 30, 1978)) work quite well in a national security context where the Director is understood to have ultimate and unreviewable removal authority. We are informed by the Agency that the Director's authority under Section 102(c) is rarely invoked, and to our knowledge only seven Title VII law suits have been filed since the Agency was made subject to that provision. On reflection, this is what one would expect. It is obviously in the Agency's interest to rely as far as possible on informal accommodations, since in a hostile and adversary encounter the Agency does not hold all the cards. Agency employees are privy to the most delicate secret information, so a disgruntled employee who has been involuntarily dismissed may be in a position to do considerable damage. That is why when difficulties surface the Agency may take quite a time, as it did here, to reach a conclusion, and will seek informal compromises including an opportunity for voluntary resignation (again, as in this case). Only if all else fails will the Director's Section 102(c) authority be invoked, and because that authority has long been accepted without question, its invocation seldom becomes necessary. If that authority could be challenged in public litigation, as respondent seeks to do, the delicate balance would be destroyed, and it is far from clear that what would replace it would better serve the interests of anyone concerned. C. Relying on Article III, separation of powers principles, and the Due Process Clause, respondent maintains (Br. 41-49) that Congress may not deprive the courts of the opportunity to consider a constitutional challenge to the Director's decision to dismiss a CIA employee. We submit, to the contary, that the statutory denial of judicial review is sufficiently clear, and the governmental interests underlying it are of such importance, that the denial of a cause of action for reinstatement is plainly constitutional. The suggestion that this narrow conclusion might somehow expand of its own force to deny judicial review of other, more oppressive executive actions, is aptly answered by Justice Holmes' phrase, "Not while this Court sits." Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218, 223 (1928) (dissenting opinion). For whether a particular preclusion of review is constitutional is itself a constitutional question, review of which may not be precluded. /17/ 1. It is simply not correct, as respondent implies, that the courts must be able to adjudicate every constitutional challenge to the actions of Executive Branch officers. A variety of allied principles -- including the law of standing, ripeness, and mootness, the political question doctrine, and the law of absolute and qualified immunity -- can prevent a party from obtaining judicial review on the merits of an allegedly unconstitutional action by the Executive. /18/ Various actions taken by the President and Congress -- such as the President's nomination of and Congress's consent to an individual named to head an Executive Branch department or agency (such as the CIA); decisions made in the course of foreign policy, such as whether to extend diplomatic recognition to or to endorse a treaty with a foreign nation, or whether to declare war; and the conduct of operations in a theatre of war -- are not subject to judicial review, even though they can affect the interests of a private party far more seriously than the Director's decision to dismiss an employee from the CIA. The principle that the Constitution entrusts some decisions to the political branches is therefore no less central to our system of government than the principle of judicial review. /19/ Included in the unreviewable authority entrusted to the President is the power to appoint, with the advice and consent of the Senate, "the principal Officer in each of the executive Departments" to assit him in carrying out his responsibilities. U.S. Const. Art. II, Section 2, Cl. 1. As a corollary to that power, the President has the inherent authority to remove such officers when he deems it necessary or advisable to do so. Myers v. United States, 272 U.S. 52, 117-161 (1926). /20/ The President is also responsible for controlling access by government employees to information bearing on the national security by virtue of his "executive Power," his authority as "Commander in Chief of the Army and Navy," and his obligation to "'preserve, protect, and defend the Constitution of the United States.'" U.S. Const. Art. II, Section 1, Cls. 1, 8, Section 2, Cl. 1. E.g., Haig v. Agee, 453 U.S. 280, 293-294, 304 (1981); New York Times Co. v. United States, 403 U.S. 713, 729-730 (1971) (Stewart, J., concurring); Cafeteria Workers v. McElroy, 367 U.S. 886, 890 (1961). In enacting Section 102(c), Congress sought to facilitate the President's authority in both of these areas by, in effect, giving all CIA personnel the same tenure held by the Director himself. The Director serves at the pleasure of the President, while the CIA's other officers and employees serve at the pleasure of the Director. This Congressional decision to designate CIA personnel as "at will" employees is well justified by the circumstances of their employment. The nature of the CIA's work is such that every employee has access to sensitive information that cannot be revealed to the public. The Director's decision that an employee must be removed is therefore, in large measure, a decision that he must no longer be in a position giving him access to information concerning or derived from the CIA's operations. No one, much less a CIA employee, can claim that the Constitution guarantees him a right to challenge in court the denial of access to information whose disclosure the President believes would be detrimental to the national security -- particularly where the Congress has expressly sought to give unreviewable authority to the Executive to control such access. See Snepp v. United States, 444 U.S. 507 (1980). The military or state secrets privilege (United States v. Reynolds, 345 U.S. 1 (1953)) supports this conclusion. See also 5 U.S.C. 552(b)(1)(A) (FOIA exemptions for classified information). As we explained in our opening brief (at 38-39), this privilege protects against the disclosure of information damaging to the national security, even when constitutional claims are involved. By making the Director's action nonreviewable, Section 102(c) protects the same interests as the privilege; the difference is that Section 102(c) gives the Director the ultimate authority to make the decision. The determination whether permitting a particular individual access to secret information runs an impermissible risk of harming national security interests is necessarily speculative, involving precisely the type of "prophecy" (Chicago & Southern Air Lines, Inc. v. Waterman Corp., 333 U.S. 103, 111 (1948)) that courts are ill-suited to undertake. It is an attempt to predict that individual's future behavior, to assess whether he might, through disloyalty or venality or carelessness or under the compulsion of circumstances beyond his control, compromise sensitive information. The prediction may be based upon the individual's past or present conduct; but it may also be based upon concerns unrelated to an individual's conduct, such as whether he or his associates have close relatives residing in a country that is hostile to the United States. Doubts are necessarily resolved against the individual seeking access to our nation's secrets; it is better that nine persons who might never compromise classified information be denied access to it, than that access be granted to one person who does. The Director, unlike a court, is familiar with "'the whole picture'" (CIA v. Sims, 471 U.S. at 179), relating to our national security interests, and it is entirely proper that such an assessment should be left to him. /21/ CONCLUSION For the foregoing reasons and those stated in our opening brief, the judgment of the court of appeals should be reversed. CHARLES FRIED Solicitor General DAVID P. DOHERTY General Counsel Central Intelligence Agency DECEMBER 1987 /1/ The court of appeals directed the district court to determine whether a policy of dismissing all homosexuals merely because of their sexual orientation exceeded the Director's statutory authority under Section 102(c), 50 U.S.C. 403(c). "At the very least, the CIA would have to justify why such a ban on the employment of homosexuals was 'necessary or advisable in the interests of the United States'" (Pet. App. 27a). Respondent has not suggested that he has waived his claims that the Director's action was arbitrary and capricious or beyond his statutory authority. /2/ Mem. of Points and Authorities in Support of Motion to Dismiss 14-18 (filed Sept. 20, 1982); 2/25/83 Tr. 38, 51, 52. (The relevant portions of the transcript of the argument in district court are reprinted in an appendix to this brief. We have lodged 10 copies of the full transcript with the Clerk.) Thus, we sought to take the approach this Court followed in Heckler v. Chaney, 470 U.S. 821, 838 (1985), and Heckler v. Ringer, 466 U.S. 602, 608-609 n.4 (1984), where the Court found that the statutory scheme precluded review and that the plaintiffs' constitutional claims are insubstantial. /3/ Appellant's C.A. Reply Br. 23-24, 35 n.19; 3/13/86 Tr. 11-15. (The relevant portions of the transcript of the argument in the court of appeals are reprinted in an appendix to this brief. We have lodged 10 copies of the full transcript with the Clerk.) /4/ In petitioner's motion to dismiss in the district court, we argued that, in light of Section 102(c), CIA termination decisions are exercises "of non-reviewable executive power" and involve non-justiciable matters. Defendant's Motion to Dismiss at 14-18. In the court of appeals, the majority of our opening brief was devoted to a section entitled "The DCI's Decision To Terminate Employment Pursuant To Section 102(c) Is Not Judicially Reviewable" (Appellant's C.A. Br. 18-42). /5/ The court of appeals' statement (Pet. App. 17a) quoted by respondent (Br. 16) that the government was not prepared to state that constitutional claims are precluded is incomplete; in the next sentence, counsel stated that "I do know that this Court can decide its case as the Supreme Court in Heckler v. Chaney, just put that situation where there is substantial constitutional claim aside, you don't have to reach it" (3/13/86 Tr. 13). /6/ In a footnote (Br. 18 n.7), respondent renews his argument that the district court could award him complete relief under 28 U.S.C. 1331, regardless of how his APA claim is resolved. That claim is fully addressed in our opening brief (at 29-32). See Califano v. Sanders, 430 U.S. 99, 105 (1977) (Section 1331 is "subject * * * to preclusion-of-review statutes created or retained by Congress"). /7/ Cf. Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 280 (1980) (footnote omitted) ("In attempting to ascertain the legislative intent underlying a statute enacted over 50 years ago, the view that once 'dominate(d) the field' is more enlightening than a recent state-law trend that has not motivated subsequent Congresses to amend the federal statute."). /8/ Even today, there is no rule that the text of a statute must explicitly foreclose judicial review in order that it be fairly read to accomplish that result. E.g., Block v. Community Nutrition Inst., 467 U.S. 340 (1984); Southern Ry. v. Seaboard Allied Milling Corp., 442 U.S. 444 (1979); Morris v. Gressette, 432 U.S. 491 (1977). /9/ That is not, however, the only implication of respondent's argument. It also raises substantial questions about the authority of the President to remove persons in whom the President lacks confidence in order to safeguard national security. See generally Myers v. United States, 272 U.S. 52 (1926); Pet. Br. 35-36. Indeed, if respondent's theory is correct, one wonders why the Director of Central Intelligence, the Assistant to the President for National Security Affairs (National Security Advisor), and the Secretary of State or Defense might not also contest their removals and demand to be reinstated unless the President can establish to a court's "satisf(action)" (Pet. App. 17a) that the action is not arbitrary or capricious. It begs the question to say in distinction that these persons hold offices made subject by Congress to the constitutional process of appointment and confirmation. Congress has also created the office in question here -- employee of the CIA -- on the terms that it is held at the will and pleasure of the Director. /10/ Respondent is silent about the preclusive effect of 5 U.S.C. 7532, but the text and legislative history of that provision are as clear on this point as the text and legislative history of the NSA, DIA, and military department statutes that respondent finds persuasive (Pet. Br. 26 n.22, App. 1a-5a). Respondent therefore would seem compelled to agree that 5 U.S.C. 7532 also bars review. /11/ History bears out that conclusion. As Commander-in-Chief, the President has always had plenary authority to reassign military personnel from an intelligence post to other duties, and the terms and conditions of intelligence operations have historically not been subject to judicial oversight. Totten v. United States, 92 U.S. 105 (1875). Between 1940 and 1953, Congress adopted more than a dozen Acts granting the head of certain executive departments the authority summarily to dismiss an employee. Pet. Br. 19-20 & n.15, App. 6a-9a. Respondent does not dispute that in creating the CIA, Congress, at a minimum, deprived CIA personnel of the limited administrative procedural rights granted other federal employees. 50 U.S.C. 403(c); Neely v. United States, No. 86-2266 (D.C. Cir. Nov. 24, 1986), cert. denied, No. 86-6716 (Oct. 5, 1987). In 1950, Congress entrusted the heads of federal agencies with unreviewable authority to discharge personnel in sensitive positions in order to safeguard the national security against compromise. 5 U.S.C. 7532; Cole v. Young, 351 U.S. 536 (1956). In 1964, Congress gave the Secretary of Defense a similar authority over all NSA employees. 50 U.S.C. 833(a). In 1978, Congress exempted the CIA from the new provisions added to the civil service laws by the Civil Service Reform Act of 1978, 5 U.S.C. 2302(a)(2)(C)(ii), 2305, 4301(1)(C)(ii). And in 1984 and 1986, Congress extended the Secretary of Defense's summary dismissal authority to reach all DIA employees. 10 U.S.C. (Supp. IV) 1604(e); 10 U.S.C. (Supp. IV) 1590(e)(1). /12/ 5 U.S.C. 554(a)(2); H.R. Rep. 1980, 79th Cong., 2d Sess. 27-28 (1946); S. Rep. 752, 79th Cong., 1st Sess. 17 (1945); Senate Comm. on the Judiciary, Administrative Procedure Act: Legislative History, S. Doc. 248, 79th Cong., 2d Sess. 202, 260-261 (1946); Attorney General's Manual on the Administrative Procedure Act 44 (1947 & reprint 1979); 86-1442 Mem. in Opp. 8. The Senate Report on the APA explained that the exemption was included since "the selection and control of public personnel has been traditionally regarded as a discretionary function which, if to be overturned, should be done by separate legislation." S. Rep. 752, supra, at 17. Accord H.R. Rep. 1980, supra, at 27-28. /13/ The version of the McCarran Rider at issue in Service was the Departments of State, Justice, Commerce, and the Judiciary Appropriation Act, 1952, ch. 533, Tit. I, Section 102, 65 Stat. 581. /14/ As this Court explained (354 U.S. at 380 (footnote omitted)), "(a)lthough Congress was advised in unmistakable terms that the Secretary had seen fit to limit by regulations the discretion conferred upon him, * * * it continued to re-enact the McCarran Rider without change for several succeeding years. Cf. Labor Board v. Gullett Gin Co., 340 U.S. 361, 366; Fleming v. Mohawk Co., 331 U.S. 111, 116." In sum, the Court concluded that, by continuing to pass the McCarran Rider in that setting, Congress had endorsed the Secretary's policy of restricting his plenary removal authority. That reading of the foregoing passage is supported by the two cases cited by the Court, Gullett Gin and Mohawk Co., both of which stated that Congress will be deemed to have endorsed a longstanding agency practice if the practice is brought to Congress' attention and Congress either legislates on the basis of that practice, or does not reject it. /15/ Congress would not be "astound(ed)" by a conclusion denying relief in discharge cases (Br. 37), because Congress has enacted other statutes since Title VII foreclosing review of the removal of NSA and DIA employees. Respondent apparently agrees with us that NSA and DIA employees cannot invoke Title VII, because he concedes (Br. 27-28) that the statutes authorizing the summary dismissal of NSA and DIA employees bar all judicial review. As we have explained (Pet. Reply Mem. 7 n.8) only one case cited by respondent, the Neely case, involved the dismissal of an employee, and it was a hybrid. The plaintiff alleged that the CIA had discriminatorily denied her a promotion and had dismissed her in retaliation for pursuing her discrimination claim. Since the plaintiff's first claim was not precluded by Section 102(c), the Director did not argue that the action was nonreviewable. To our knowledge, Neely is the only Title VII suit against the CIA involving the removal of an employee. /16/ Even if CIA employees could bring Title VII discharge claims, this would not mean that our contention about the Director's unreviewable Section 102(c) authority in other cases is anomalous. Congress could have concluded that discrimination based on race, gender, and national origin is so abhorrent to our national traditions that extraordinary measures (and risks) are justified in rooting it out wherever it exists. That judgment does not mean that Congress also intended to subject CIA discharge decisions -- even those not involving a Title VII claim -- to all the hazards of litigation whenever a plaintiff states what some court finds to be a colorable constitutional or statutory claim. /17/ The conclusion we urge would also be reached by a determination that there simply is no constitutional right to continued employment by the CIA. In much the same way, the question whether courts may inquire into the President's decision to name or remove a member of his cabinet may be put either as one regarding constitutional rights or as a question of justiciability. Professor Hart appears to acknowledge this connection between the substance of the claim and the permissibility of preclusion. Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1386-1387 (1953). Compare Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 284 (1856). See also Henkin, Is There a "Political Question" Doctrine?, 85 Yale L. J. 597, 601 (1976). /18/ See, e.g., Allen v. Wright, 468 U.S. 737 (1984); Nixon v. Fitzgerald, 457 U.S. 731 (1982); Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982); Goldwater v. Carter, 444 U.S. 996 (1979); Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974); United States v. Richardson, 418 U.S. 166 (1974); Laird v. Tatum, 408 U.S. 1 (1972); Johnson v. Eisentrager, 339 U.S. 763 (1950). /19/ Respondent relies heavily (Br. 17, 42, 45) on Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), as support for his claimed right of judicial review in this case. Marbury, however, recognized (5 U.S. (1 Cranch), at 165-166, 170) that many important decisions are not reviewable: By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. * * * (W)here the heads of departments are the political or confidential agents of the executive, merely to execute the will of the president, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. * * * Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court. /20/ The issue of the President's authority to remove the principal officers of government was considered by the First Congress during a debate on legislation to establish departments in the Executive Branch. The question arose whether the President had the inherent authority to remove the head of the Department of Foreign Affairs, the predecessor to the Department of State, without the advice and consent of the Senate, or whether that authority had to be affirmatively vested in the President by Congress. In what has come to be known as the "Decision of 1789," Congress concluded that the removal power resides in the President alone. Bowsher v. Synar, No. 85-1377 (July 7, 1986), slip op. 7-8; Myers, 272 U.S. at 111-132. That Decision, as this Court has recognized, provides "'contemporaneous and weighty evidence' of the Constitution's meaning." Bowsher, slip op. 8 (citation omitted). /21/ It is no answer to our argument that the Director can prevent the disclosure of confidential information in the context of a suit for reinstatement such as this one by invoking the state secrets privilege or by relying on 50 U.S.C. 403(d)(3) and 403g to withhold particular information. In some cases, invoking a privilege can reveal information that should not be disclosed. CIA v. Sims, 471 U.S. at 179 ("It is conceivable that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency."). APPENDIX