RANDOLPH Circuit Court: In the wake of several highly publicized spy scandals the Department of Defense began reinvestigating its civilian employees holding security clearances at the "secret" level. The Department requested these employees on a voluntary basis "to provide background information for personnel security investigative and evaluative purposes" by completing the "National Agency Questionnaire " formally designated DD Form 398-2. The Questionnaire informed each employee that "failure to furnish the requested information may result in our being unable to complete your investigation which could result in your not being considered for clearance access entry into a uniformed service or assignment to sensitive duties."

Four civilian Defense Department employees a national union representing federal workers and three of its local unions brought suit challenging four of DD Form 398-2's questions--Questions 18 19 20 and 21. The parties have reached a settlement on Question 21 which had been designed to elicit information about employees' organizational affiliations. The remaining questions are as follows.

Question 18 requests employees to reveal their criminal arrest history without regard to whether charges were dropped or dismissed resulted in an acquittal or whether the employee was a juvenile at the time of arrest.

Question 19 asks employees about their credit history and seeks detailed explanations of any petitions for bankruptcy garnishment of wages tax liens outstanding judgments or delinquent debts.

Question 20 solicits a complete mental health and drug and alcohol use history. Employees are asked to disclose their use of any controlled substances; their involvement with the illegal manufacture production purchase or sale of such drugs; their abuse of prescription drugs or use of alcohol resulting in loss of their job or their discipline arrest or treatment; and any treatment they received for a mental emotional or psychological condition and any Counseling of them by a mental health professional.

Employees are instructed: "Answers to questions in items 18 through 22 are NOT limited to the last 5 10 or 15 years but pertain to your entire life." The Questionnaire also requests each employee to sign a release authorizing the Department to obtain complete background records relating to any of the activities disclosed on the form.

The district court granted plaintiffs' motion for a preliminary injunction forbidding the Defense Department from "compelling answers" to Questions 18 19 or 20 and from using information provided in response to these questions. National Fed'n of Fed. Employees v. Greenberg 789 F. Supp. 430 440 (D.D.C. 1992).

I.

Differences between what plaintiffs argue on appeal and what they alleged in the district court; the grounds on which the district court placed its decision; and a concession in plaintiffs' appellate brief require a more extensive explanation than usual of what legal issues may properly be considered in this appeal.

In their original and amended complaints plaintiffs attacked the drug use portion of Question 20 on the ground that it violated the Fifth Amendment privilege against self-incrimination. The district court decided in plaintiffs' favor and the Fifth Amendment issues raised by this ruling are thus before us. We put them to one side for the moment.

Question 19 (finances) is another matter. The original complaint alleged only that this question violated the Privacy Act 5 U.S.C. SEC. 552a. As we read the district court's opinion the ruling in plaintiffs' favor rested solely on the Privacy Act. See 789 F. Supp. 430 at 433-34. Plaintiffs' amended complaint and their second amended complaint both filed after the preliminary injunction issued also alleged only a Privacy Act violation. In this court plaintiffs "withdraw the Privacy Act challenge to the [Questionnaire]." Brief for Appellees at 2 n.1. One might wonder what is left? Plaintiffs spend several pages in their brief explaining why the government has no compelling need for the financial information sought by Question 19.

This is included as part of their overall argument--the only argument they now press other than their Fifth Amendment contention--that each of the questions deprives them of a constitutional right to privacy. Yet as a matter of prudence if not jurisdiction claims neither raised nor addressed below usually may not be heard on appeal. See Yee v. City of Escondido 118 L. Ed. 2d 153 112 S. Ct. 1522 1531-34 (1992). We include the hedge "usually" because the ban may be overcome. See EEOC v. FLRA 476 U.S. 19 23-24 106 S. Ct. 1678 90 L. Ed. 2d 19 (1986) (per curiam); Roosevelt v. E.I. DuPont de Nemours & Co. 294 U.S. App. D.C. 198 958 F.2d 416 419 n.5 (D.C. Cir. 1992). One reason for doing so here is that both parties have fully briefed and argued the constitutionality of Question 19. Contrast Rollins Environmental Servs. (NJ) Inc. v. EPA 290 U.S. App. D.C. 331 937 F.2d 649 652 n.2 (D.C. Cir. 1991).

Another is that the government failed to object to plaintiffs' new claim. One might say that although plaintiffs had waived their right to mount a constitutional argument against Question 19 the government thereby waived its right to complain. Carlson v. Green 446 U.S. 14 17 64 L. Ed. 2d 15 100 S. Ct. 1468 n.2 (1980) suggests this approach. Cf. Capital Cities Cable Inc. v. Crisp 467 U.S. 691 697 81 L. Ed. 2d 580 104 S. Ct. 2694 (1984). Parties too often frame appellate cases through their combined neglect. Still we will take this case as it has been briefed. The legal issues regarding the constitutionality of Question 19 are fundamentally the same as the issues regarding the rest of the Questionnaire. If we refused to consider them it would still be open to plaintiffs to amend their complaint once again. The issue might then return to us in the same form if the district court allowed the amendment and issued an order granting or denying a preliminary or permanent injunction against Question 19's use.

With respect to Question 18 (arrests) plaintiffs' original and amended complaints also raised only a Privacy Act claim which is all the district court decided. See 789 F. Supp. 430 at 433-34. The second amended complaint added a constitutional right of privacy claim and this as we have indicated is the only issue regarding Question 18 plaintiffs argue on appeal. Although the second amended complaint was filed only after the court issued its opinion we will treat the constitutional claim as one raised in Court below. The case is here on appeal from a preliminary injunction. In theory at least proceedings leading to a decision on a permanent injunction are ongoing. Plaintiffs therefore have the advantaged the familiar rule that on appeal the prevailing party may support a judgment in its favor on any grounds urged or decided below. See e.g. United States v. Williams 118 L. Ed. 2d 352 112 S. Ct. 1735 1738-41 (1992); Dandridge v. Williams 397 U.S. 471 475 25 L. Ed. 2d 491 90 S. Ct. 1153 n.6 (1970); United States v. Williams 293 U.S. App. D.C. 20 951 F.2d 1287 1290 (D.C. Cir. 1991).

The same rule entitles plaintiffs to argue the constitutionality of the mental health portion of Question 20. While their original and their amended complaints contested this question only on Privacy Act grounds which they have now relinquished the district court enjoined the Department from asking for mental health information partly on the ground that this would invade plaintiffs' constitutionally-protected privacy. See 789 F. Supp. 430 at 434-35. *fn1

II.

We therefore have before us the constitutionality of each of the three questions described above. However on the authority of Department of Navy v. Egan 484 U.S. 518 98 L. Ed. 2d 918 108 S. Ct. 818 (1988) the government maintains that the district court should not have passed on them and neither should we. Egan held that the charter of the Merit Systems Protection Board did not empower the Board to consider the validity of the Navy's denial of a security clearance to one of its employees.

Describing the granting of a security clearance as "a sensitive and inherently discretionary judgment call" ultimately resting on a prediction about future behavior Court determined that the Board as an "outside nonexpert body " was not in a position to second-guess the Navy's judgment or to determine "what constitutes an acceptable margin of error in assessing the potential risk." 484 U.S. at 527 528 529.

The government takes Egan two steps further: since the Board may not review the merits of security-clearance denials federal courts may not consider constitutional challenges to such denials; and since the government's security-clearance judgments are thus judicially unreviewable so are the government's judgments about what information employees must disclose during security clearance investigations.

A case decided shortly after Egan undercuts the government's first proposition. It is simply not the case that all security-clearance decisions are immune from judicial review. In Webster v. Doe 486 U.S. 592 100 L. Ed. 2d 632 108 S. Ct. 2047 (1988) an action brought under the Administrative Procedure Act Court ordered the district court to adjudicate a terminated employee's colorable constitutional challenge to the CIA's denial of his security clearance. 486 U.S. at 601-05.

The government dismisses Webster v. Doe on the basis that the CIA Director there was exercising statutory power in firing the employee for security reasons see SEC. 102(c) of the National Security Act 50 U.S.C. SEC. 403(c) whereas the Defense Department's use of the Questionnaire rests on a delegation of the President's constitutional power as Commander-in-Chief under article II section 2. See Dorfmont v. Brown 913 F.2d 1399 1404-05 (9th Cir. 1990) (Kozinski J. concurring) cert. denied 113 L. Ed. 2d 214 111 S. Ct. 1104 (1991). Court in Webster v. Doe did not mention any such distinction and its significance is far from evident.

The power conferred on the President by the Constitution we may assume is more extensive than SEC. 102(c)'s generous grant of authority to the CIA Director to terminate employees in the "interests of the United States." Even if this mattered in cases challenging on constitutional grounds discretionary judgments regarding a particular employee's security clearance such cases are not our concern here. The substantive issues before us relate to the constitutionality of the methods used to gather information on which such judgments presumably will be based. To stretch Egan to cover this case would be to endorse untenable and far-reaching restrictions on judicial review of governmental actions.

All questions of government are ultimately questions of ends and means. The end may be legitimate its accomplishment may be entrusted solely to the President yet the judiciary still may properly scrutinize the manner in which the objective is to be achieved. Suppose the President has unlimited and judicially-unreviewable constitutional power to determine which Executive Branch employees will be given access to the nation's secrets. No one would suggest the government therefore could despite the Fourth Amendment conduct random searches without warrants in the hope of uncovering information about employees seeking security clearances. Still less would anyone consider such unconstitutional searches and seizures to be immune from judicial review.

The government may have considerable leeway to determine what information it needs from employees holding security clearances and how to go about getting it. But a large measure of discretion gives rise to judicial deference not immunity from judicial review of constitutional claims. Harmon v. Thornburgh 278 U.S. App. D.C. 382 878 F.2d 484 491-92 (D.C. Cir. 1989) cert. denied 493 U.S. 1056 107 L. Ed. 2d 949 110 S. Ct. 865 (1990) illustrates the point: we there considered but upheld against a Fourth Amendment challenge random drug testing of Justice Department employees holding top secret security clearances. United States Info. Agency v. Krc 284 U.S. App. D.C. 284 905 F.2d 389 398-99 (D.C. Cir. 1990) is similar; we reviewed but rejected Krc's claim that the United States Information Agency deprived him of due process by firing him for security reasons without following proper procedures.

See also Dorfmont v. Brown 913 F.2d 1399 at 1402-04 ; Jamil v. Secretary Dep't of Defense 910 F.2d 1203 1209 (4th Cir. 1990); High Tech Gays v. Defense Indus. Sec. Clearance Office 895 F.2d 563 570-81 (9th Cir. 1990); Hill v. Department of Air Force 844 F.2d 1407 1411-12 (10th Cir.) cert. denied 488 U.S. 825 102 L. Ed. 2d 49 109 S. Ct. 73 (1988); cf. Doe v. Cheney 280 U.S. App. D.C. 276 885 F.2d 898 909-10 (D.C. Cir. 1989). In none of the cases just cited did Court refuse to render a decision on the ground that the government's actions were exempt from judicial review.

The government further confuses the merits with judicial authority to pass upon them when it argues that most of plaintiffs' contentions are not subject to review because they rest on "generalized privacy claims." Reply Brief for Appellants at 6. That plaintiffs lack any specific constitutional foundation for their claims may be a sufficient reason for rejecting them on the merits. But it is not a reason for refusing to consider them altogether.

To hold otherwise would be to approve a system in which courts pass on the legal sufficiency of constitutional arguments in order to determine whether they may pass on their validity a system in which courts would adjudicate in the guise of not adjudicating. Apart from a wholly frivolous constitutional claim or an immaterial one advanced solely for the purpose of obtaining jurisdiction Court must decide the merits of the claim (see Bell v. Hood 327 U.S. 678 90 L. Ed. 939 66 S. Ct. 773 (1946)) unless other considerations unrelated to the merits show the claim to be unsuitable for adjudication.

We therefore proceed to consider the two constitutional theories urged in support of the preliminary injunction.

III.

The narrower of plaintiffs' claims is based on the Fifth Amendment privilege against self-incrimination and is directed at the portion of Question 20 asking employees to disclose illegal drug use or dealing. The district court ruled that plaintiffs had a substantial probability of succeeding on their Fifth Amendment challenge a prerequisite to the granting of a preliminary injunction. Washington Metro. Area Transit Comm'n v. Holiday Tours Inc. 182 U.S. App. D.C. 220 559 F.2d 841 843 (D.C. Cir. 1977). Court's opinion on this question of law an opinion to which we owe no deference (City of Las Vegas v. Lujan 282 U.S. App. D.C. 57 891 F.2d 927 931-32 (D.C. Cir. 1989)) rested on the possibly incriminating nature of responses to Question 20 and the Questionnaire's general warning that information employees provided may be turned over to "federal state local or foreign law enforcement authorities if the record indicates on its face or in conjunction with other records a violation of law."

Why this should have led Court to enjoin the Defense Department from propounding Question 20 is uncertain. There are four individual plaintiffs each of whom is a long-time civilian employee at an Army facility but the record contains the declarations of only two of these individuals. Neither reports having invoked his Fifth Amendment privilege in response to Question 20.

The other plaintiffs are the National Federation of Federal Employees a union representing nearly 150 000 federal employees some of whom presumably work for the Defense Department and hold security clearances and three of the union's local chapters. There is no indication in the record that any union member refused to answer Question 20 on the basis of the Fifth Amendment privilege. The Chief of the Adjudications Division of the Army's Central Personnel Security Clearance Facility reported in an affidavit that she is unaware of any employee who has asserted the privilege in response to the National Agency Questionnaire.

Ordinarily a person must invoke the privilege in order to gain its advantage. Minnesota v. Murphy 465 U.S. 420 427-29 79 L. Ed. 2d 409 104 S. Ct. 1136 (1984); United States v. Kordel 397 U.S. 1 7-10 25 L. Ed. 2d 1 90 S. Ct. 763 (1970). See also United States v. Haldeman 181 U.S. App. D.C. 254 559 F.2d 31 94-96 (D.C. Cir. 1976) (en banc) cert. denied 431 U.S. 933 53 L. Ed. 2d 250 97 S. Ct. 2641 (1977). If a witness called to testify "makes disclosures instead of claiming the privilege the government has not 'compelled' him to incriminate himself." Minnesota v. Murphy 465 U.S. at 427 (quoting Garner v. United States 424 U.S. 648 654 47 L. Ed. 2d 370 96 S. Ct. 1178 (1976)); Selective Serv. Sys. v. Minnesota PIRG 468 U.S. 841 858 104 S. Ct. 3348 82 L. Ed. 2d 632 (1984).

The reason is apparent: the Fifth Amendment does not forbid the government from asking questions and it does not forbid the government from taking the answers. What is forbidden is compelling an individual to testify against himself. Even so "answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying." Gardner v. Broderick 392 U.S. 273 276 20 L. Ed. 2d 1082 88 S. Ct. 1913 (1968).

Like other individuals government employees enjoy the protection of the privilege against self-incrimination. Yet the government like private employers needs to ensure that its employees are faithfully performing their duties. The government therefore may fire employees who refuse on the basis of their Fifth Amendment privilege to answer questions concerning the performance of their duties so long as the employees' answers could not be used against them in a criminal prosecution. Garrity v. New Jersey 385 U.S. 493 17 L. Ed. 2d 562 87 S. Ct. 616 (1967); Gardner v. Broderick 392 U.S. at 278-79; Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation 392 U.S. 280 284-85 20 L. Ed. 2d 1089 88 S. Ct. 1917 (1968).

For purposes of the Fifth Amendment the threat of firing or other economic sanctions may constitute compulsion. But the protection of the privilege extends only to criminal prosecutions. A government employee would not be incriminating himself within the meaning of the Fifth Amendment if his answers could not be used against him in a criminal case. See generally Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation 426 F.2d 619 (2d Cir. 1970) (Friendly J.) cert. denied 406 U.S. 961 32 L. Ed. 2d 349 92 S. Ct. 2055 (1972).

Plaintiffs' challenge to Question 20 thus encounters a severe obstacle. Admitting the use of illegal drugs at least use so recent that the statutes of limitation have not run would doubtless be incriminating. But are answers to Question 20 compelled? That depends on the consequence of refusing to answer. In Gardner the police officer invoked the privilege refused to waive use immunity and as a result lost his job. The contractor in Lefkowitz v. Turley 414 U.S. 70 38 L. Ed. 2d 274 94 S. Ct. 316 (1973) followed the same course and by statute thereby became ineligible for public contracting work. See also Lefkowitz v. Cunningham 431 U.S. 801 53 L. Ed. 2d 1 97 S. Ct. 2132 (1977).

Here no one has declined to answer Question 20. Compulsion therefore turns on what the government would do in such a case rather than on what in fact it has done. One thing more. The constitutional attack on Question 20 is facial. The burden plaintiffs must shoulder is heavy. They must show that Question 20 in all rather than just some of its possible applications violates the Fifth Amendment privilege. See Rust v. Sullivan 114 L. Ed. 2d 233 111 S. Ct. 1759 1767 (1991); New York State Club Ass'n v. City of New York 487 U.S. 1 11 101 L. Ed. 2d 1 108 S. Ct. 2225 (1988); United States v. Salerno 481 U.S. 739 745 95 L. Ed. 2d 697 107 S. Ct. 2095 (1987).

As to the consequences of an employee's invoking of the privilege in response to Question 20 the Questionnaire indicates only that an employee's failure to answer any question "may result" in the Department being unable to complete the security reclearance investigation which "could result" in a denial of reclearance. The extensive regulations governing the Defense Department's security clearance operation reveal nothing further about how the Department would respond to a claim of Fifth Amendment privilege. See 32 C.F.R. pt. 154. The Executive Order requiring agencies to establish personnel security programs is silent on the subject. See Exec. Order No. 10 450 3 C.F.R. 936 (1949-1953 Comp.). According to an affidavit submitted by the government civilian Army employees invoking the Fifth Amendment privilege would be evaluated on a case-by-case basis.

The most that can be said therefore is that some employees invoking the Fifth Amendment might wind up losing their security clearances while others might not. An employee's failure to answer Question 20 may detract from the thoroughness of the security clearance investigation but this is only one among many factors. "This case is very different from the circumstances before Court in the Garrity-Lefkowitz decisions where refusal to submit to interrogation and to waive the Fifth Amendment privilege standing alone and without regard to the other evidence resulted in loss of employment or opportunity to contract with the State." Baxter v. Palmigiano 425 U.S. 308 318 47 L. Ed. 2d 810 96 S. Ct. 1551 (1976). In light of the record before us it cannot be said that employees confronted with Question 20 are invariably compelled to provide an answer. This in itself is sufficient to defeat the facial attack plaintiffs mount against the question. In at least some of its applications Question 20 does not violate the Fifth Amendment privilege.

Other considerations point in the same direction. Take for example an employee who wishes only to avoid disclosing drug use in the distant past. If the state and federal statutes of limitation would bar prosecution the employee's answer would not be incriminatory and the privilege could not be successfully invoked. See e.g. In re Folding Carton Anti-trust Litigation 609 F.2d 867 872 (7th Cir. 1979). Question 20 in such instances obviously would not run afoul of the Fifth Amendment. Nor would Question 20 implicate the Fifth Amendment when the risk of self-incrimination is not "real and appreciable" but is instead "so improbable that no reasonable man would suffer it to influence his conduct." Brown v. Walker 161 U.S. 591 599-600 40 L. Ed. 819 16 S. Ct. 644 (1986) (citation omitted). See e.g. Devine v. Goodstein 220 U.S. App. D.C. 207 680 F.2d 243 247 (D.C. Cir. 1982) (per curiam).

Question 20 in other words could not possibly be considered unconstitutional as applied to employees who do not reasonably believe their answers would subject them to criminal liability. Question 20 would also survive a Fifth Amendment challenge if the Defense Department responded to an employee's assertion of the privilege by offering use immunity and directing the employee to answer upon pain of losing his security clearance. That the Defense Department does not have regulations spelling out this possible response is not determinative. When incriminating answers are compelled the Fifth Amendment of its own force prevents their use against the individual in criminal proceedings. As Court Friendly said in Uniformed Sanitation Men 426 F.2d at 626 on remand from the Supreme Court "if 'use immunity' thus suffices to permit the discharge of a public employee who refuses to answer questions about his conduction the ground of self-incrimination we see no reason why there must be a statute conferring it."

We therefore conclude that the district court erred in thinking that plaintiffs had shown a probability of succeeding in their facial attack on the drug use portion of Question 20. For the reasons mentioned it appears highly unlikely that plaintiffs could prevail on their Fifth Amendment theory.

IV.

Plaintiffs' remaining argument is that Questions 18 19 and 20 of the National Agency Questionnaire violate a constitutional right to privacy. The Supreme Court has described Stanley v. Georgia 394 U.S. 557 22 L. Ed. 2d 542 89 S. Ct. 1243 (1969) and Griswold v. Connecticut 381 U.S. 479 14 L. Ed. 2d 510 85 S. Ct. 1678 (1965) as decisions protecting the "individual interest in avoiding disclosure of personal matters."Whalen v. Roe 429 U.S. 589 599 51 L. Ed. 2d 64 97 S. Ct. 869 (1977). See also Nixon v. Administrator of Gen. Servs. 433 U.S. 425 455-58 97 S. Ct. 2777 53 L. Ed. 2d 867 (1977). In Tavoulareas v. Washington Post Co. 233 U.S. App. D.C. 126 724 F.2d 1010 1019 (D.C. Cir. 1984) a panel of this court took Whalen and Nixon to mean that "a litigant's interest in avoiding public disclosure of private information is grounded in the Constitution itself.

"Whether the panel's focus on "public disclosure" would advance plaintiffs' argument about disclosure only to government investigators is not worth pondering. Court sitting en banc vacated the panel's decision in Tavoulareas and it therefore has no precedential value. See 238 U.S. App. D.C. 23 737 F.2d 1170 (D.C. Cir. 1984). When we return to Whalen and look behind the Supreme Court's general remark quoted above we find ambiguity. What "individual interests" receive protection from disclosure? Plaintiffs suggest the interest in avoiding humiliation or embarrassment entailed in the disclosure of personal information. What "personal information" and disclosure to whom? To the government as employer or to the world? However one defines the scope of the protection what are the provisions in the Constitution that are said to confer it? Cf. Dronenburg v. Zech 239 U.S. App. D.C. 229 741 F.2d 1388 (D.C. Cir. 1984). We cannot tell from plaintiffs' brief. It refers to nothing more specific than "the Constitution" as the foundation for this constitutional right. And what of the government's interests in carrying out its constitutional responsibilities?

Much to our relief this case does not require any extended survey of this uncharted terrain. Plaintiffs' second amended complaint presented only a facial challenge to the National Agency Questionnaire. *fn2 As mentioned in the previous section and as American Library Association v. Barr 294 U.S. App. D.C. 57 956 F.2d 1178 1188-89 (D.C. Cir. 1992) explains in greater detail "[a] facial challenge to a legislative Act is of course the most difficult challenge to mount successfully since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno 481 U.S. 739 745 95 L. Ed. 2d 697 107 S. Ct. 2095 (1987). See also Rust v. Sullivan 114 L. Ed. 2d 233 111 S. Ct. 1759 1767 (1991); New York State Club Ass'n v. City of New York 487 U.S. 1 11 101 L. Ed. 2d 1 108 S. Ct. 2225 (1988). If "some quite straightforward applications" of the law are constitutional plaintiffs therefore lose. Webster v. Reproductive Health Servs. 492 U.S. 490 524 106 L. Ed. 2d 410 109 S. Ct. 3040 (1989) (O'Connor J. concurring in part and in the judgment).

As the case has progressed thus far plaintiffs appear to have little chance of prevailing on their privacy theory. For one thing the record casts doubt on whether they are being forced to reveal the information and therefore doubt about whether their privacy is being invaded. Even on plaintiffs' theory questions do not invade privacy answers do. But the Questionnaire itself informs employees that their compliance is "voluntary." The consequences of an employee's refusing to respond are unclear and on this record unknowable. Much will depend on the individual's circumstances and the particular question or questions that remain unanswered. Question 18 for example calls for arrest records. Despite an employee's recalcitrance the Defense Department might be able to obtain the same information from other sources. The same is true for some financial data sought in Question 19. On the face of it the Questionnaire suggests that if the investigation can be completed nothing detrimental will follow the employee's refusal to cooperate.

It is also plain to us that none of the three questions could possibly be considered unconstitutional on their face even if employees were forced to respond as a condition of retaining their security clearances. Plaintiffs' complaint about Question 18 which seeks information about arrests is that non-relevant information may be elicited. Unaccountably the government does not even cite Paul v. Davis 424 U.S. 693 713 47 L. Ed. 2d 405 96 S. Ct. 1155 (1976) holding in the clearest possible terms that no constitutional right of privacy is violated by the disclosure "of an official act such as an arrest." Paul aside it is clear that answers to Question 18 may reveal highly pertinent information.

Consider for example a person holding a security clearance who had been arrested but not yet tried. Or take a person with a history of recent arrests for driving while intoxicated who avoided conviction by attending a rehabilitation program. To paraphrase Jefferson if a man cannot govern himself he cannot be trusted with the government of others. There are in other words possible valid applications of Question 18 applications not even plaintiffs contest. The same is true for Questions 19 and 20. Substantial debts with the attendant financial pressure exerted on employees holding security clearances or on-going mental health problems are by anyone's light important elements of the "predictive judgment " Egan 484 U.S. at 529 involved in determining whether a person can be trusted to maintain the nation's secrets.

Plaintiffs' quarrel with Questions 19 and 20 like their objection to Question 18 is that the questions sweep too broadly that they ask for information from the distant past information with no discernible bearing on present performance. But in a facial challenge the fact that there may arguably be some invalid applications is beside the point; what matters is whether there are any valid ones. Here the district court acknowledged the existence of legitimate applications noting that "the Department may be entitled to some information with respect to some employees." National Fed'n of Fed. Employees 789 F. Supp. at 434. Court's error was in not recognizing that its conclusion compelled rejection of plaintiffs' claim.

One further point deserves mention. Plaintiffs' brief contains several references to "overbreadth." In First Amendment cases and in First Amendment cases only the Supreme Court has struck down laws having some valid applications (even to the plaintiffs before Court) on their face because the laws if allowed to stand could "inhibit the constitutionally protected speech of third parties." City Council of Los Angeles v. Taxpayers for Vincent 466 U.S. 789 798 80 L. Ed. 2d 772 104 S. Ct. 2118 (1984). See generally New York v. Ferber 458 U.S. 747 766-73 73 L. Ed. 2d 1113 102 S. Ct. 3348 (1982).

The concern underlying the overbreadth doctrine chilling protected speech--is absent here. See Salerno 481 U.S. at 745; Schall v. Martin 467 U.S. 253 268 81 L. Ed. 2d 207 104 S. Ct. 2403 n.18 (1984). See also Lutz v. City of York Pa. 899 F.2d 255 271 (3d Cir. 1990). The Questionnaire asks about arrests finances mental health difficulties and drug and alcohol use. These are not activities within the freedom of speech and in any event disclosing information about these subjects could not conceivably deter plaintiffs or their members from engaging in any protected speech. See American Library Ass'n 956 F.2d at 1190.

Because neither of plaintiffs' theories support the preliminary injunction we vacate the district court's order and remand for further proceedings.

Concuring: EDWARDS; SENTELLE

CONCUR: EDWARDS Circuit Court concurring: I concur in the judgment of Court and in much of Court Randolph's opinion. I write separately to stress several points and to explain where I differ with the majority.

First in addressing the claims based on the Fifth Amendment privilege against self-incrimination we do not reach the question whether the Government may lawfully fire an employee who refuses to answer a question relating to say drug or alcohol use. The majority cites Garrity v. New Jersey 385 U.S. 493 17 L. Ed. 2d 562 87 S. Ct. 616 (1967) for the proposition that an employee may be fired if he refuses "on the basis of [his] Fifth Amendment privilege " to answer questions "concerning the performance of [his] duties." In this case it is far from clear that inquiries about an employee's drug or alcohol use over the course of his "entire life" always will pertain to "the performance of his duties " especially if the alleged conduct was off-duty and the employee has a long history of exemplary service with the Government. We do not and need not address whether such information is job-related and if not whether an employee has constitutional or statutory protections against discharge for refusing to answer questions relating thereto.

Second as the majority opinion makes clear compliance with the questionnaire is "voluntary." Furthermore at least on the record now before us it is impossible to know whether or how the Government might seek to compel the release of information that an employee may be reluctant to give because it is highly personal and unrelated in any meaningful way to security clearance. It is hardly insignificant that employees are advised that their compliance is "voluntary " and this surely will have some bearing on Government actions (and judicial assessments thereof) in the future.

Third I find no "ambiguity" in the core principle undergirding the Supreme Court's decision in Whalen v. Roe 429 U.S. 589 51 L. Ed. 2d 64 97 S. Ct. 869 (1977) which describes the constitutional right to privacy as protecting the "individual interest in avoiding disclosure of personal matters." Id. at 599 (footnote omitted). The majority is correct in concluding that this case does not warrant a "survey" of the law covering an individual's right to privacy but this cannot be taken to mean that the right itself is in doubt. I therefore do not join in the questions posed by the majority following what I view as a dubious suggestion that the essential point underlying Whalen is ambiguous.

Fourth I do not read Paul v. Davis 424 U.S. 693 47 L. Ed. 2d 405 96 S. Ct. 1155 (1976) as the majority seemingly does to say that the Government does not violate an employee's right to privacy if it "forces" the employee (on threat of job loss) to reveal personal information that arguably has no relevance to job performance. Rather in Paul the Supreme Court merely held that the right of privacy did not prohibit the State from publicizing a known record of an official act such as an arrest." Id. at 713 (emphasis added). Court did not say that the State could compel disclosure of personal matters whether or not job-related--as a condition of continued employment.

In a similar vein I do not accept the majority's example that "driving while intoxicated" is clearly related to a security clearance. The majority supports this example by citing the proposition that "if a man cannot govern himself he cannot be trusted with the government of others." The case law requires more than an epigram to justify revocation of a security clearance; it is common understanding I think that many people engage in questionable activity off of the job that in no way impairs their job performance. See e.g. Hoska v. United States Dep't of the Army 219 U.S. App. D.C. 280 677 F.2d 131 138 (D.C. Cir. 1982) ("In most security clearance cases courts have specifically insisted upon a rational nexus between the denial or withdrawal of an individual's security clearance and the individual's ability to protect classified information.") In any event I do agree that the relevance of these matters must be left for another day.

Apart from the foregoing concerns I concur.

SENTELLE Circuit Court concurring: I concur in the opinion of Court and write separately (and briefly) only to point out what I understand Court not to be doing. I do not understand us to be doing any more than passing on the constitutionality of a particular method of information-gathering in the pursuit of national security interests by the Department of Defense. That is to say I understand us to recognize that we are not positioned to displace the Executive as the decisionmaker in the area of defense.

Jurisdiction over an issue does not automatically imbue a Court with the expertise needed to address all its intricacies. Particularly in matters relating to national security a Court's inclination to substitute his judgment for that of qualified experts in the Executive branch can be pernicious. "If the Constitution gives the Executive a large degree of unshared power in the conduct of foreign affairs and the maintenance of our national defense then under the Constitution the Executive must have the largely unshared duty to determine and preserve the degree of internal security necessary to exercise that power successfully." New York Times Co. v. United States 403 U.S. 713 728-29 29 L. Ed. 2d 822 91 S. Ct. 2140 (1971) (Powell J. concurring).

That is to say while our constitutional scheme provides Court with the clear responsibility to adjudicate narrowly-drawn constitutional questions it does not offer us license independently to assess the wisdom or the necessity of internal Department of Defense policies and to pass judgment thereon. Without clear congressional authorization courts traditionally have demonstrated a reluctance to encroach on Executive prerogative in the area of military and national security affairs.

See e.g. Chappell v. Wallace 462 U.S. 296 76 L. Ed. 2d 586 103 S. Ct. 2362 (1983); Schlesinger v. Councilman 420 U.S. 738 757-58 43 L. Ed. 2d 591 95 S. Ct. 1300 (1975); Gilligan v. Morgan 413 U.S. 1 10 37 L. Ed. 2d 407 93 S. Ct. 2440 (1973); Burns v. Wilson 346 U.S. 137 142 144 97 L. Ed. 1508 73 S. Ct. 1045 (1953); Orloff v. Willoughby 345 U.S. 83 93-94 97 L. Ed. 842 73 S. Ct. 534 (1953).

It is not for us as it was not for the District Court to justify our conclusions by inferences drawn either from world events--such as the breakup of the Soviet Union weighed by the District Court in determining the public interest component of the preliminary injunction--or from prior agency policy that is the Defense Department's earlier failure to conduct periodic reinvestigations for secret clearances. Such bases for judicial decisions run perilously close to political judgments about foreign policy which under Article II of the Constitution are committed to the Executive alone.

I do not understand our decision today to abandon our tradition of deference to the Executive on matters regarding national security and note that the determination of trustworthiness is an "inexact science at best " Adams v. Laird 136 U.S. App. D.C. 388 420 F.2d 230 239 (1969) cert. denied 397 U.S. 1039 25 L. Ed. 2d 650 90 S. Ct. 1360 (1970).