H.R. 10174, 87TH CONGRESS, A BILL 'TO AMEND THE INTERNAL SECURITY ACT OF 1950.'

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP64B00346R000300070002-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 15, 2016
• Document Release Date: September 23, 2003
• Sequence Number: 2
• Publication Date: March 6, 1962
• Content Type: MF

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DEPARTMENT OF DEFENSE
OFFICE OF GENERAL COUNSEL
Washington 25, D.C.
March 6, 1962
MEMORANDUM FOR THE SECRETARY OF THE ARMY
Attention: Major General H. A. Gerhardt
Chief of Legislative Liaison
THE SECRETARY OF THE NAVY
Attention; Rear Admiral Robert E. M. Ward
Chief of Legislative Affairs
THE SECRETARY OF THE AIR FORCE
Attention: Major General Thomas C. Musgrave, Jr.
Director, Legislative Liaison
THE ASSISTANT SECRETARY OF DEFENSE (COMP)
Attention: Assistant General Counsel (Fiscal Matters)
THE ASSISTANT SECRETARY OF DEFENSE (Manpower)
SUBJECT: H. R. 1017b, 87th Congress, a bill '"To amend the Internal Secu-
rity Act of 1950."
There is attached a proposed report on the above subject bill on
which the views of the addressees are requested not later than the close
of business, March 14, 1962.
Hearings are scheduled for March 22, 1962.
Inclosure
Prop rept
Frank J./herlock
Director
Legislative Reference Service
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GENERAL OWUNSEL OF THE DEPARTMENT OF DEFENSE
Washington 25, D. C.
This is in response to your request for the views of the Department
of Defense on H. R. 101741 87th Congress, a bill "To amend the Internal
Security Act of 1950."
The bill prescribes the personnel security procedures to be fol-
lowed in employing, detailing, or assigning personnel to the National
Security Agency. Among other provisions, it provides that every employees
including those assigned or detailed to the Agency, shall receive a full
field investigation, that boards of appraisal shall pass upon their eli-
gibility for employment and access to classified information, and that
the Secretary of Defense may summarily terminate the appointment of any
such officer or employee.
The Department of Defense is in full agreement with the over-all
objective of this bill, namely, to insure that only those whose loyalty
and suitability meet the highest standards are permitted access to sensi-
tive information of the National Security Agency. In the Department's
view, the provisions of the bill may be characterized as follows: (a)
those which properly exempt the Agency from the disclosure of classified
information in the execution of certain personnel functions; (b) those
which call for the same security practices as are presently being ad-
ministered by the Agency; and (c) those which are so restrictive as to
deny to the Secretary of Defense, and more immediately the Director of
the Agency, the necessary flexibility in carrying out the Agency's mission.
For these reasons which are more fully set forth below, the Department of
Defense recommends that the bill be revised in certain respects.
Section 301(a) would provide that the employments assignment, or
detail of all persons to the Agency must be "clearly consistent with the
interests of national security." This would impose by statute the same
employment standard that is prescribed by Executive Order 10450. While
this standard has been in effect in the National Security Agency since
1953, the Department interposes no objection to enactment of a statutory
standard.
Section 301(b) would require that no person assume duties in the
Agency unless "in connection with such employment, details or assignment"
he has been the subject of a full field investigation and has been cleared
for access to classified information. Exceptions would be authorized on a
temporary basis in time of war, national disaster, "or in exceptional cases
in which the Secretary makes a determination in writing that his action is
necessary or advisable in the national interest."
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This provision would depart from the present practice of the Agency
in that it would require a full field investigation to be completed on
individuals prior to their actual employment instead of, as at present,
prior to granting clearance for access to sensitive cryptologic informa-
tion.
Because of the very sensitive nature of the Agency's operations,
those seeking employment must pass very rigorous screening procedures.
The Agency does not hire any applicant until a favorable evaluation has
been made of the National Agency Check, and of such additional investi-
gations, examinations, and inquiries as are necessary to determine the
applicant's loyalty and suitability. Only upon the successful comple-
tion of these requirements is an applicant offered a conditional appoint-
ment, subject to the favorable evaluation of a current full field investi-
gation.
Upon receiving a conditional, appointment, the newly hired employee
is assigned to a training school in a restricted area for useful and neces-
sary basic orientation and training, If, upon the completion of formal
training the full field investigation is not yet completed, he is assigned
to productive work which may require limited access to classified informa-
tion. However;, under no circumstances is he authorized access to sensitive
cryptologic information. To insure that such information is not disclosed
to a person in this category, he is assigned to an especially established
work area which is physically separated from areas in which sensitive
cryptologic work of the Agency is performed. Only upon a favorable evalu-
ation of the full field investigation, the granting of a Top Secret clear-
ance, and the completion of security indoctrination, is the employee
given access to sensitive cryptologic information. It is within this
context that the Department of Defense has serious reservations regarding
the necessity for the requirement of a full field investigation before
being employed by the Agency.
Furthermore., to complete background investigations expeditiously,
under provisions of Section 301(b), it would be necessary to greatly ex-
pand the investigative work force. Even then, the refusal of applicants,
particularly those possessing skills or aptitudes in high demand, to await
employment until all aspects of the investigation have been completed
would seriously endanger the Agency's efforts to recruit personnel neces-
sary to carry out its missions which are vital to the national security.
The Department recommends that it be permitted to continue to employ
successful applicants under the controlled conditions outlined above.
Section 301(b) is consequently opposed,
Section 301(c) would provide for the creation of boards of appraisal
to pass upon the loyalty, suitability, and fitness of employees and of
persons assigned or detailed who require access to classified information.
If the board recommends that employment, assignment, detail, or clearance
be denied, only the Secretary or his designee for such purpose, may rule
to the contrary, provided a determination is made in writing that such
employment, assignment., or detail is in the national interest.
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While the Department of Defense has no basic objections to the cre-
ation of boards of appraisal, it is recommended that section 301(c) be
changed in certain respects. The requirement that a board's recommenda
tion can only be overruled by a "written determination" constitutes an
unnecessary administrative burden on the Secretary or his designee. Ac-
cordingly, it is recommended that the section be revised so as to delete
a requirement that the determination be in writing. Secondly,, the re-
quirement that the board members be cleared by the Secretary, constitutes,
in our mind, an inflexible requirement. Further, as the Director of the
National Security Agency is charged with the immediate responsibility for
the administration of his Agency$ it is submitted that these boards should
be established in the National Security Agency by the Director, NSA, and
that the Director, NSA, will appoint and issue clearances to the members
thereof. Thirdly, it is recommended that the boards of appraisal confine
their recommendations to loyalty and suitability, and that the requirement
concerning fitness be deleted from the bill. The term "fitness" relates
to qualification requirements for Federal employment and is not considered
to fall within the security procedures objectives of the bill as stated in
Section 301(a). Fourthly, because of the conditional appointment process
outlined previously, the board must, and should, limit itself to recom-
mending on final clearance for access to Top Secret classified information,
Fifthly, from the standpoint of a good administration and sound security
practices, it is necessary that clearances issued by one office of the
Defense Department be respected throughout the Defense Establishment.
Those military and civilian members who are assigned or detailed from
other echelons of the Department of Defense,, and who have already been in-
vestigated and cleared by their respective military departments, should
not be required to undergo a second evaluation. The bill should therefore
concern itself with employees of the Agency and other personnel being con-
sidered for initial or continued access to classified information.
Sixthly, it is considered that the use of boards would be too unwieldy a
device for acting upon a large volume of cases which are clear cut and can
be resolved readily. It is submitted, therefore, that the Director, NSA,
should refer to the boards only those cases in which he determines there
is a doubt as to whether final clearance for or continued access to
classified information would be clearly consistent with the national
security,
Section 301(d) would authorize the Department of Defense to utilize
the services of any investigative agency provided the head of that agency
oonscrits. In those instances in which the Department of Defense has
found it necessary or desirable to seek the assistance of other investi-
gative agencies of the Government, it has experienced marked cooperation.
While enactment of this section would merely give statutory recognition
to what has been a long accepted administrative practice, the Department
interposes no objection to its enactment.
Section 301(e) would give the Secretary of Defense, or his designee,
summary authority to terminate the employment of any officer or employee
of the Agency. Any employee so discharged would be entitled to accept
employment with any other department if he is otherwise eligible for such
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employment. The effect of this section would be to remove the statutory
and administrative procedural restrictions imposed upon the National
Security Agency with respect to termination of employment. Under present
law, removals on security grounds are carried out under Public Law 733,
81st Congress (5 U.S.C. 22-1), removals on suitability grounds, in the
case of veterans, under section 14 of the Veterans Preference Act
(5 U.S.C. 863).
The authority to discharge an employee on a determination that it is
"in the interest of the United States" is equivalent to that granted the
Director of the Central Intelligence Agency by section 101(c) of the
National Security Act of 19!i.7, as amended (50 U.S.C. 403(c)). In this
respect, section 301(e) has a statutory precedent.
While there may be some instances when the procedural requirements
of these "discharge" statutes should give way to the demands of national
security, there are other occasions in which the termination of an em-
ployee can be effected under circumstances which do not give rise to the
disclosure of classified matters. From a morale standpoint, it is espe-
cially important that each employee be informed of the reasons prompting
his proposed dismissal, and be given the opportunity to present his side
of the case. Subject to the necessary limitations of national security,
both the Government and the employee stand to benefit by a proceeding
that makes a full inquiry into the employee's eligibility for continued
employment.
In the light of these considerations, the Department of Defense does
not object to the enactment of section 301(e), but recommends that it be
amended in two respects. First, that this authority be reserved solely
to the Secretary of Defense; secondly, that this authority be invoked
only upon a determination that the normal removal procedures where appeal
rights are involved cannot be invoked consistently with the national
security. This authority would be similar to that granted the Secretary
of Defense by Section 9 of Executive Order 10865 relating to the Indus-
trial Security Program.
Section 301(f) defines "classified information" in the same manner
as it is defined in the criminal statute imposing penalties for unauthor-
ized disclosure of certain categories of classified information (18 U.S.C,
798). The Department concurs in the enactment of this section.
Section 301(g) and (h) would exempt personnel appointments from the
provisions of Civil Service laws and exempt the Agency from the Perform-
ance Rating Act. The Department favors enactment of these sections as
these exemptions would provide statutory assurance that classified infor-
mation about the Agency's activities need not be disclosed in adminis-
tering these aspects of its personnel program.
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Cost and Budget Data
Enactment of H. R. 10171,, as introduced, would involve an annual
cost to the Department of Defense of approximately X800,000, As proposed
to be amended by the Department of Defense, the cost is estimated at
35, 000 per year.
The Bureau of the Budget advises that, from the standpoint of the Ad-
ministration's program, there is no objection to the presentation of this
report for the consideration of the Committee.
Sincerely,
Cyrus R. Vance
Honorable Francis E. Walter
Chairman$ Committee on Un-American
Activities
House of Representatives
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