MEMORANDUM AND ORDER

Plaintiff, an historian who is now a research associate at Stanford University’s Hoover Institution on War, Revolution and Peace, brings this action pursuant to Section 3 of the Administrative Procedure Act, 5 U.S.C. § 552 , to enjoin the Secretary of the Army from withholding a file described as “Forcible Repatriation of Displaced Soviet Citizens —Operation Keelhaul.” The file was generated by the Allied Force Headquarters of World War II and has been classified Top Secret since 1948. The classification was made pursuant to the provisions of Executive Order 10501, 3 C.F.R. 484 (Supp.1968).

Subsection (a) of Section 3 of the Administrative Procedure Act provides in part:

Subsection (b) of Section 3 provides:

The defendants have moved to dismiss the action for lack of jurisdiction of the subject matter, or, in the alternative, for summary judgment. Plaintiff contends that the Top Secret classification on the file he seeks, is unwarranted and that this Court has the power to hold a trial de novo on the merits of this classification. He contends that such power is based on Section 3 of the Administrative Procedure Act. The Court is of the opinion that Congress did not intend to subject such classifications to judicial scrutiny to that extent.

Before discussing the purpose and effect of Section 3 of the Act, the Court directs its attention to the affidavit of Congressman John E. Moss, which plaintiff filed in support of his contentions. The affidavit has been introduced to give aid to the Court in interpreting the provisions of Section 3 of the Act. Congressman Moss’ affidavit states:

Statements made by legislators in debate can be a part of the legislative history which guides courts in statutory construction. See Bindczyck v. Finucane, 342 U.S. 76 , 72 S.Ct. 130 , 96 L.Ed. 100 (1951). On the other hand, statements made by a legislator after enactment of a statute and not a part of the records of the legislative body are entitled to little or no weight at all. National School of Aeronautics, Inc. v. United States, 142 F.Supp. 933 , 135 Ct.Cl. 343 (1956). See also, United States v. United Mine Workers of America, 330 U.S. 258 , 67 S.Ct. 677 , 91 L.Ed. 884 (1947). Such statements are not offered by way of committee report and are not offered for response by other members of the law-making body. The intent which is helpful in interpreting a statute, is the intent of the legislature and not of one of its members. For purposes of statutory construction, a legislative body can only speak through a statute, with the words that are used in light of the circumstances surrounding its enactment. For this reason, the Court has not considered the affidavit prepared and submitted by the Honorable John E. Moss solely for purposes of this lawsuit after the legislation in question was enacted.

Prior to amendment of Section 3 of the Act in 1966, this Section was described by Senator Long as:

Senator Long went on to say in support of the amendment:

This purpose of full disclosure was accomplished by giving the United States District Courts jurisdiction to determine de novo whether information was being properly withheld with the burden of the withholding agency to sustain its action. 5 U.S.C. § 552 (a) (3). This jurisdiction does not apply to infor mation that falls within the exemptions set forth in subsection (b) of Section 3. To hold that the agencies have the burden of proving their action proper even in areas covered by the exemptions, would render the exemption provision meaningless. If a determination de novo is made by this Court on whether the Top Secret classification by the Department of Army is proper, with the burden on the Secretary to sustain its action, the Court would be giving identical treatment to information withheld by an agency whether it fell within the exemption or not. Apparently, Congress did not intend such a result.

It may be argued that the exemptions enumerated in Section 3 are set forth merely to designate the various grounds on which information may be withheld and that the burden is on the agency to show that the information properly falls within the exception, with the district court having jurisdiction to make the determination de novo. That this position is unwarranted is shown by the clear expression of Congress in Subsection (b) of Section 3, “This section does not apply to matters that are [listed below] .” It is further shown by the statements of Congressman Gallagher on the floor of the House:

On the other hand, it is equally without merit to say that Congress intended absolutely no effect by the Act on information that falls within the areas covered by the exemptions. The district courts at least have jurisdiction to determine whether the exemption applies in a given situation. In furtherance of this jurisdiction, it is reasonable to say that Congress intended the courts to determine whether classifications within the first exemption is clearly arbitrary and unsupportable. Otherwise, the agencies could easily frustrate the purpose of full disclosure intended by Congress merely by labeling the information to fall within the exemption.

In determining when information need not be disclosed if classified “top secret in the interest of national defense or foreign policy,” guidance is set forth in the Act itself. Section 3 provides that the section does not apply to matters that are “specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy.” The Secretary of the Army has asserted the privilege of nondisclosure pursuant to Executive Order No. 10501 which reads in part:

Section 2 of the Executive Order further provides:

By this Executive Order, the President has delegated authority to the Department of Army to classify matters Top Secret. The exercise of this authority is, as it must be, discretionary in nature. Judgment in this area is'best rendered by those best equipped with the necessary facilities to do so. The function of this Court is similar to that described in United States v. Reynolds, 345 U.S. 1 , 73 S.Ct. 528 , 97 L.Ed. 727 (1953), by Mr. Chief Justice Vinson:

The Reynolds case was decided before the amendment to Section 3 of the Administrative Procedure Act was adopted and dealt with information being sought by discovery procedures. There is no reason for denying application of the principles announced in Reynolds to this case. Professor Davis seems to accept this viewpoint in his discussion of the first exemption in Section 3 of the Act:

It is the opinion of this Court that Congress has granted it jurisdiction to determine whether the first exemption of Section 3 applies in this ease. Plaintiff admits that the information he seeks has been classified Top Secret by the Department of the Army. The question remaining is whether or not this information is “required by Executive order to be kept secret in the interest of the national defense or foreign policy.” In answering this question, the Court is limited to determining whether the Secretary of the Army has acted capriciously in exercising the authority granted to him by Executive Order 10501.

Although the information before the Court is not extensive, it is sufficient for rendering a decision on the issue of summary judgment. The ultimate facts are practically uncontested. The affidavit produced by Major Gener al K. Wickham states that the documents in question are photographic reproductions made from microfilm copies of records generated by the Allied Force Headquarters which directed the allied military operations in the Mediterranean Theater of Operations. It further states that by direction of the Combined Chiefs of Staff, the original records were released to the United States Government. Top secret classification “was required because the files contained many individual top secret documents of combined or British origin.” Plaintiff, in his brief, states that the file is believed to contain information dealing with about 900,000 anti-Communist Russians who were forcibly repatriated from Germany to the Soviet Union at the end of the Second World War, and were either executed or died in slave camps after their repatriation.

The general subject matter of the file in question is described in the preamble to House Resolution 24, 86th Congress 1st Sess. (1959). Plaintiff has appended to his brief a daily copy of the Congressional Record which describes Congressman Bosch’s presentation of the remarks prepared by plaintiff in support of H.R. 24. In these remarks, the plaintiff himself had quoted and used the preamble to H.R. 24 which reads:

The Court concludes that the information above speaks for itself and thus finds that the circumstances are appropriate for the classification made by the Department of the Army in the interest of “the national defense or foreign policy.”

Accordingly, the motion to dismiss the complaint is denied, and the motion for summary judgment is granted in favor of the defendants.