LEGAL EFFECT OF S. 1035 ON THE INTELLIGENCE ACTIVITIES OF CIA

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP72-00310R000200100025-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 41
• Document Creation Date: December 16, 2016
• Document Release Date: July 11, 2005
• Sequence Number: 25
• Publication Date: September 5, 1968
• Content Type: REPORT

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5 September 1968 ?
Legal Effect of S. 1035 on the Intelligence Activities of CIA
1. A memorandum by the American Law Division of the
Library of Congress, dated January 29, 1968, concerning the
effect of S. 1035 on the .Central Intelligence Agency has been
recently filed in the Congressional Record (Cong. Rec. , 2 July 1968,
pp. S8088 and S8089) after being presented to the Senate Subcommittee
on Constitutional Rights.
2. The author o; the article has conducted considerable
research into the statutes which have a bearing on the Agency and its
functions. He also cites several cases which have a bearing on
the applicability of various laws and legal principles to the functions
of intelligence. Unfortunately, however, the author has not had the same
opportunity to research the sensitivities of security agencies generally or of
Central Intelligence Agency, specifically. It is the purpose of this paper to
acquaint those interested in the subject with the actual issues involved
and with certain court rulings in other, perhaps lesser known, legal
proceedings. This discussion demonstrates that there are inherent
in S.1035 conflicts with statutes and in fact conflicts with judicial
concepts of the necessity for secrecy in intelligence matters.
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3. The article refers to a number of: statutory provisions which
it claims were designed to allow CIA to maintain secrecy concerning its
operations and personnel. It cites 50 U.S. C. 403(d)(3) as authorizing
the Director of Central Intelligence to protect intelligence sources arid
methods from =authorized disclosure. That statute places a responsi-
bility on the Director of Central Intelligence for protection of intelligence
sources and methods but in fact arms him with no authority to carry out
that responsibility.
4. Although 50 U.S. C. 403(d)(3) provides no authority to the
Director of Central Intelligence for carrying out the obligation which
it places upon him to protect intelligence sources and methods, the
Supreme Court has steadfastly held to the view that intelligence is a
very special subject. As was stated in the Totten case (Totten v.
United States, 92 U.S. 105 (1876)):
all secret employments of the Government in time
of war or upon matters affecting our foreign relations, where
a disclosure of the service might compromise or embarrass
our Government in its public duties, or endanger the person
or injure the character of the agent... " cannot be disclosed
in a court of law. "A secret service, with liability to publicity
in this way, would be impossible;... The secrecy which such
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contracts (of employment) impose precludes any action for
their enforcement... It may be stated that public policy forbids
the maintenance of any suit in a court of justice, the trial
of which would inevitably lead to the disclosure of matters
which the law itself regards ,s confidential...greater reason
exists for the application of the principle (of not allowing disputes
involving state secrets to be aired in court) to cases of contract
for secret service with the Government, as the existence of a
contract of that kind is itself a fact not to be disclosed. "
The Totten case has been repeatedly cited with approval by the Supreme
Court. (The most recent case concerning government privileges
decided by the Supreme Court was United States v. Reynolds,
345 U.S. 1 (1953) in which Totten was favorably cited. 97 L. ed. 729,
732, 733, 735.)
5. Any suit filed before a court charging a violation of S.1035 would
inevitably require assertion of the facts tending to support the violation.
These facts are inextricably involved with Agency functions and operations and
identities of Agency personnel. On the other hand 50 U.S. C. 403gfsection 6 of
the CIA Act of 1949, as amended] specifically exempts the Agency from the
provisions of any law requiring publication or disclosure of the Agency organization,
functions, names, official titles, salaries, or numbers of personnel
employed by ,the Agency. For example, if an employee stationed abroad
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asserted in court a violation of S.1035 by his superior, the mere
identification of the Agency personnel could reveal classified information
in violation of the secrecy oath which all employees are required to take, and
in itself would be a breach of security contrary to the interests of the United
States and possibly endangering lives of people.
6. This then is the crux of the issue--if the CIA is to be subject
to suits to prove its innocence or the innocence of one of its officers, as
provided in S.1035, all efforts to maintain the security of its operations become
an exercise in futility. It is apparent that when a court action is maintainable
concerning the performance of a service for the Government, despite the
secrecy required to perform that service, then the service becomes useless
because secrecy is its essence. A mere appearance in court could result
in possible disclosure of names and employment relationships, the very
existence of which are state secrets. If any employee has a statutory right
to a court hearing of his grievance, no matter how wrong or how frivolous
his suit may be and no matter how strong the case for the CIA is, once that
suit is filed a great disservice has been done to the integrity of the Agency's
security system and to its ability to operate anonymously, for the public
examination into the grievance is a serious breach of security and in many
cases may prove hazardous to the lives of certain classes of Agency employees.
It must also be noted when discussing facts which may be revealed in court
that it is a determination of the court in any given case as to whether a
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hand, intelligence sources and methods should not be subjected to com-
promise, by design or otherwise, by a statute which would tend to
encourage employees in sensitive positions to jeopardize the security
system which they are working to protect. In point of: fact, our concern
lies not so much with the possibility of revelations by CIA employees but
rather by the use which may be made of this administrative remedy by
those who seek to destroy our national security systems. If such a statute
were applied to CIA, the Agency would be faced with one of two alternatives:
to remain silent in the face of charges and concede the merits, or to contest
the merits and give away the information which the Director is charged
by law to protect.
9. The fact is that although the CIA has some statutory authority
(and a clear statutory responsibility) to protect its secret information,
these mandates are not always enough when the Agency is brought into
court. The obvious question then becomes how much firther will the
Agency be either harassed frivolously or sued in earnest and damaged
under the provisions of S.1035? It is apparent that while the cases to date
show serious compromise of classified information under present protective
statutes, the probable compromise in the future would be substantially
more because of statutory authorizations of suits against the CIA.
10. The American Law Division's report concedes the possibility
of conflict between Section 4 of S.1035 and the Director's authority to
terminateA0
!,
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upheld in a number of cases where the individual has sought to contest
his termination, Kochan v. Dulles, Civ. No. 2728-58, D. C. D. C. (1959),
and Torpats v. McCone, 300 F. 2d 914 (1962), LT. S. Court of Appeals for
D. C. Circuit. Particularly in the Torpats case the court refused to allo
on the record information concerning intelligence operations which the
plaintiff knew were classified. Our experience has shown however that
a court proceeding cannot be confined solely to the matter of a single
allegation, but that all sorts of peripheral and background matters are
inevitably brought forward. S.1035 would virtually farce the courts to
explore these areas publicly.
11. Possibly an even more clear-cut conflict involves section 201(c)
of the CIA Retirement Act of 1964 (P. L. 88-643). That provision states
that any determinations made by the Director authorized under the
provisions of the CIA Retirement and Disability Act of 1964 "shall be
deemed to be final and conclusive and not subject to review by any
court." This provision was included in the law because the CIA retire-
ment system covers those employees engaged in the most sensitive
work of the Agency, primarily overseas activities, and the committees
of the House and the Senate which held hearings on the Act realized
the serious harm that would result from a public airing of any such cases.
12. As a hypothetical case, consider an employee who is mandatorily
placed in a retired status under the CIA Retirement Act by the Director.
Assume further that the employee brings an action in a district court
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claiming that his retirement resulted from an interrogation concerning
misconduct during which he requested and was refused counsel (section 1(k)
of S.1035). Under the provisions of section 4, the employee would be
authorized to maintain the action, and the court would review in detail
circumstances of the forced retirement. Such a review by the courts
would directly conflict with section 201(c) of the CIA Retirement Act,
and would result in a public airing of sensitive information which that
section was designed to protect. Since 6.1035 would be the later-enacted
law, a court might hold that section 4 prevailed over the provisions of
the CIA Retirement Act.
13. The requirement of presence of counsel or other person provided
for in section 1(k) of S.1035 would impose a particularly difficult dilemma.
In effect, that section provides that before an employee could be subject
to an interrogation which could lea,d to a disciplinary action, he has the
right of counsel or other person of his choice. This statutory requirement
could be extremely burdensome administratively. Of more importance,
in the case of this Agency where classified information inevitably would
be involved, there would be the requirement of investigation of the counsel ?
or other person chosen. If for some reason the counsel or other person
were determined to be untrustworthy to receive classified information, the
Agency would be in a serious dilemma under S.1035. On the one hand, it
has the responsibility-to protect intelligence sources and methods, and on
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the other hand there is the requirement in S1035 that counsel or other person
be present. In theory then, if the Agency refused to permit the presence
of the person designated by the employee during the interrogation which
involves the classified information, the complaining employee could allege
violation of S.1035 in deprivation of his rights. This is a serious infringement
of the Agency's ability to protect classified information.
14. As indicated above, experience has shown that most every court
action poses serious problems for the Agency. In order that the processes
of law may go forward, there is some dilution of matters that should
remain secret. The very concepts of S.1035 in granting rights to employees
and applicants to sue and to name individual employees of the Agency as
defendants is at the outset inconsistent with the purposes behind the various
exemptions granted the Agency to maintain secrecy, as well as the responsi-
bility of the Director to protect intelligence sources and methods. These
new rights granted employees of the Agency are furthermore inconsistent
with the judicial concepts of protk. cting state secrets and the special
nature of employment in secret activities. On balance, we believe that
the desirability of protecting sensitive intelligence information far
outweighs the need for relief of the type provided by S.1035 to CIA employees
who generally have accepted as a condition of employment the necessity for
?
protecting that information. For these reasons, we believe that a complete
exemption from this legislation for this Agency is essential.
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? )AL
privacy invasions, we RTC not trifling with
the great constitutional truths which but-
trees our Society. I believe we are.
Regrettably, it would appear that we have
conic far from the nature of the truths which
we once thought important; hut in the case
- Or the polygraph, we have conic not very far
at all from the ancient methods of seeking
the truth. It is not too far from the ancient
trial of ordeal by fire or water to the concept
of the "wiggle seat." Nor is there much dif-
ference between the polygraph and the old
deception test used by the Indiana, They
thought that fear inhibited the secretion
of saliva, To test his credibility, an accused
was given rice to chew. If he could spit it out
he was considered innocent; but if it stuck
? to his gums he was judged guilty.
What do polygraph techniques do ? to the
concepts underlying the Fourth and Fifth
Amendments? To the principles that there
shall be no search and seizure without war-
rant, and that no man should be compelled
to incriminate himself? Is there anything
more destructive to our system of government
than attempting to seize a man's innermost ?
. thoughts; compelling him to confess his be-
liefs, his religions practices, his every sin;
'requiring him to bare his soul to a machine
in order to hoki a job?
Hardened criminals are safeguarded in this
. area of the law, yet an applicant for Federal
employment is not.
In the employment process, however, it is
to the First Amendment that this twentieth
century witchcraft does the Most violence.
That Amendment guarantees a citizen free-
dom from interference with his freedom or
expression in his thoughts and beliefs. And
It includes not only his right to express them
but his right to keep silent about them. This
is a crucial issue in a free society.
To condition a citizen's employment end
his future job prospects on his submission to
' the pumping Of his mind, his thoughts, and
? beliefs about personal inatters unrelated to
his dUtieS, is to exercise a form Of tyranny
and control over his mind Which is alien to a
society of free men. It is to force conformity
? of his thought, speech and action to whatever
?subjective standards for conduct and thought.
Might be held by a polygraph operator, or
his company, or an agency official. It is to
Weaken the fabric of our entire 'society.
I submit that the Constitution can and
does protect us from such incursions on our
liberties.
EMPLOYMENT AS A PRIVILEGE
To say that employment is a privilege is
? to avoid the issue. For, as the Supremo Court
has said, It does not matter whether or not
there is a constitutional right to employ-
ment. Tho moans and procedures employed
by government should not be arbitrary,
CONSENT
Nor does It help to reply that a person
"consents" to such an invasion of his liberty.
Where the full force of government is behind
the request, where he knows that great com-
puter and data systems of government will
retain forever his refusal to reply, or his an-
swers to the queries, there is no free consent,
CONFIDENTTALITY OF RECORDS
Proponents argue that the records are con-
fidential. It is no secret that his employment
records, with all of the medical and security
data, follow a man throughout his career.
They are officially transmitted through the
subterranean passages of our complex bu-
reaucracy.
It was to prevent the practice of such tyr-
annies on Federal employees that I intro-
filmed my bill, S. 1035.
This bill is premised on the belief that just
because he goes to work for government, the
S. 1035 is designed to prohibit unwarranted.
governmental invasions of employee privacy
and is sponsored by 55 Members of the Sen-
ate. I am happy to report that it was ap-
proved by the Senate on September 13 by a
vote of 79 to 4.
Section (f) of S. 1035 makes it unlawful
for any officer of any Executive department
or agency to require Or request, or attempt
to require or request, any civilian employee
serving in the department or agency, or any
person applying for emnioyment in the Ex-
ecu dye branch of the United States Govern-
ment "to take any poregeaph test designed
to elicit from him inf'oennation concerning his
personal relationship with any person con-
nected wlith him by blood or marriage, or
concerning his religious beliefs or practices,
or concerning his attitude or conduct with
respect to sexual matters."
This measure is now pending in a Sub-
committee of the House Poet Office and Civil
Service Committee under the Chairmanship
of Congressman David Henderson, I am hope-
ful that the Congress will enact It promptly.
It is time we put R. rein on the Federal.
Government's use of twentieth century
witchcraft to find the truth. It is time the
Federal Government was told what truths it
should be seeking.
:MEMORANDA Coreoseesiero TIIE EFFECT -
S. 1055 ON THE, SECURITY LGENCIES
? Tree Leseeree' OF Co:ere:mess,
Washington, D.C., January 29, 1968. '
To: Senate Subcommittee On Constitutional
' Rights.
From: American Law Division,
Subject: Effect or 8, 1035 on C.I.A. Secrecy.
This is in response to your request for a
consideration of the poesible effects of S.
1035, to protect the privacy of governmental
employees, upon the secrecy of an organiza-
tion like the Central Intelligence Agency.
A number of statutory provisions are de-
signed to allow the C.I.A. to .maintain almost
absolute coerecy about its operations and
personnel, In 50 U.S.C. 1 4:03 (d) (3), the Di-
rector of C.I.A. is authorized, inter alia, to
protect intelligence sources and methods
from unauthorized disclosure. The Agency
is exempted by 50 U.S.C, ? 403g from the
provisions of any law requiring the publica-
tion or disclosure of the organization, func-
tions, names, official titles, salaries, or num-
bers of personnel employed by it. The Direc-
tor is authorized, by 50 U.S.C. ? 403(c), in
his discretion, to terminate the employment
of any officer or employee of the Agency
whenever he deems it necessary or advisable
In the interests of the United States.
Additionally, liaofics of criminal statutes
prohibit unlawful disclosure of confidential
information respecting the national defense,
703, 79e1, 793, 1005. And, finally,
it appears that the C.I.A. requires of most If
not an .of their employees the execution of
a secrecy agreement under which the em-
ployee swears to maintain in confidence in-
formation gained. because of his employment
and under which it is specifically recognized
that an intentional or negligent violation of
the agreement might subject the employee
to prosecution under at least 18 U.S.C. ?? 793
and 704. See, Heine v. aus, 261 F. Supp. 670,
671-672 (D.C.D.Md. 1066).
It is, of course, a rule of statutory con-
struction that when .two statutes conflict,
the one later in date will govern. Therefore,
if any provision of S. 1035, upon enactment,
conflicts with any provision of the statutes
listed above, S. 1035 would prevail. Would
there be any conflict?
In order to protect the privacy of govern-
ment employees, S. 1035 prohibits those in
authority from engaging, in certain activi-
assemblage for the purpose of adivsing, in-
structing, or indoctrinating the perform-
ance of or in regard. to anything other than
official duties will be noticed or acted upon,
(3) requiring one to participate in activi-
ties or undertaking not relating to official
duties, (4) requiring one to report on his
activities or undertakings not related. to his
official duties, (5) requiring one to submit
to any interrogation or examination designed
to elicit information concerning such per-
sonal matters as relationships to other peo-
ple, religious beliefs or practices in sexual
matters, (6) requieingithe taking of e poly-
graph test designed to elicit ouch personal
information, (7) requiring one to participate
.in any way in the support or any person for
political office of any political party, (3) re-
quiring ono to invest one's money in bonds
or other obligations, (0) requiring one to
disclose personal finances except in certain
conflict of interest situations, (10) requiring
.or requesting one to participate in ally in-
vestigation which could have dieciplinaey
consequences without the presence or coun-
sel or other persons of his choice, (11) and
discharging or otherwise discriminating
against one because of a refusal to comply
with a request or demand. made illegal by
the bill.
Certain provisions of the bill recognize the
existence of security interests nceeseitating
deviation from the provisions of the hie
For example, a proviso permits inquiry
the national origin of an employee e.
deemed necessary or advisable to determ..
suitability for assignment to ectivieier, of
undertaking related to the national seen-
irity of the United States or to activities or
'undertakings of any nature onts;de the
United States.
And Section 6 of the bin permits the
requiring of polygraphing, personality test-
ing or financial inquiry to elicit otherwiee
impermissible. personal information of any
employee of the C.I.A., the National Secu-
rity Agency or the _F.B.I. IX the Director of the
appropriate agency, or his designee, makes a
personal finding with regard to each in-
dividual to be tested that such test is re-
quired to protect the national security.
Enforcement of the act would be placed
In a Board of Employee Rights and hence
to federal district court.
It appears then that the issue in any
matter taken to the Board and to court sub-
sequently would be whether sonic prohibi-
tion of the act had been violated. That is,
the only relevant issue to be adjudicated
would be whether, for example, someone had
been requested or forced to take a polygraph
test in regard to his sexual activities and
had, perhaps, boon discriminated against,
by being fired, demoted, or somehow been
retaliated against. Thus, it is difficult to see
how an issue involving government secrets
could be relevant to any determination the -
Board or court might be called up to make.
One possibility might arise should the as-
sig,nment of an operative be made to attend
some assemblage or to take part in some -ac-
tivity be made and refused, for which re-
fusal disciplinary action might 'follow,
It could be claimed by the affected. em-
ployee. that the requirement violated one or
another provision of the act. But it will be
noted that such assig,nments would violate
the act only if not part of an employee's
"official duties." Should determination of s.
possible violation depend upon Whether or
not the assignment involved "official cinties,"-
the precedents seem clear that to avoid dis-
closure .of confidential or secret information
a court will accept the certification by the
Agency head to that effect. Heine v. Baas,
supra 577-78e and, see United States V.
tics in regard to government employees. f Reillnolds, 365 U.S. 1 (1053) ?
Individual does nolmi,pr,eadel ilia-hasj.cra;ifats s,.c,tivAticzsat4i.M..ecuirinc, the Thus, it would seem that Issues involeine.
and liberties as ft? oteaso4WitDdCbilola
?
OR72-0041110R000200441002 would not he relevae
render 1113 right to a proper respect by his origin or that of his forebears, (2) inch- to issues beeove no Board and to a sulxxi-
Joveriunent for hie privacy and other rijhts. eating that the failure of ono to attend any quent court. The Issues would turn eafflie:
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d'aly 2, 1968, CONa..-::::iSSiON.1..,:_. ',.;:-ECK.'.,..-.':> ? SEN:AT-i .
-upon whether specific provisions of S. 1035 ram loved her mother, if oho eoes to church "Thi3 incident almost ended the deep de
-
had. been violated. .'very week, la she 'behoves in God, if she &ire I had for service in the American gov-
In regard to the question of any conflict believes in the aecond coming of Cnariet, .11 ernment, but fortunately I teirried to the
between present statutes and the proposed her sex life is satisfactory, if she has to Foreign Service. But if it happened to me
mit, it asmiears that in all but one instance 'urinate more often than othei. people, what it must have happened and be happening, to
no conflict would occur, That instance arises she dreams about, and many other extrane- hundreds oil other applicants for various 10 rid-
with regard to 50 U.S.C. ? 403(c). Permitting ous matters? era]. posons."
AFL-
the Director to terminate the employment Why cio?these two agencies want ?
the license On the subject of polygraphs, the AFL-
of any employee or officer in his dikretion. to coerce their employees to contribute to .CIO in 1005 stated:
Under S. 1036, it would seem that the Diree- chririty arid to buy bonds? The Subconunittee "The AFL-CIO Executive Council deplores
tor could not terminate employment for a has received fearful telephone calls from the use of so-called 'lie detectors' in public
refusal to carry out any request to do any- employees stating that they were told their and private employment. We object to the
-Lb lug prohibited by the bill. He could not, use of these devices, not only because their
security clearances would be in jeopasdy if
'for example to buy they wer
, fire anyame for refueinsa e not bu yM bond becaus
g e, e it was claims to reliability are dubious but becleuse
U.S. savinge bOEHG. Dia, RS has been noted, they infrimre on the fundamental rights of
an inclierc'sion of their lack of patriotism.
the no evould be simply 'whether this vio- American citizens to person rd privacy. Nei-
Why ahould Comsress grant these agencies
the cause of dismissal or not; no thee the government nor private 01 1)101
lation was
the right to spend thousands of dollars to go
confidences, no disclosure of any should be permitted to engage in this sort of
secrets or con
around the country recruiting on college
other reason, would have to be made known. police etate surveillance of the lives of in-
campuses, and the right to strap young ap-
.dividual citizene." ,
And, as already noted, there are exemp- plicants to machines and ask them questions
Legislatures in 5 States and several cities
Lions. The Director may make inquiry of all
about their family, and personal lives such
sorts of personal information if he makes a have already outlawed these devices, and
as:
finding that security requires it. No disclos- many unions have forced their elimination
"When was the first time you had sexual
ure would be required of the reason for. such through collective bargaining, The Director
relations with a woman?
a finding, if it became an issue before the of the Federal Bureau of Investigation has
"How many times have you had sexual said they are unreliable for personnel pur-
Doard, only disclosure that the finding had intercourse? poses.
in fact been made. ? - "Have you over engaged in homosexual Why should Congress take a step backward
-1. ehort, it appears that enactment of
S. 1055 would create no conflict with present activities? by specifically authorizine their continued,
"Have you ever engaged in /sexual activities use on American citizens in these two :igen-
etatutes nor change any os them, with the with an animal? ?cies to ask about their sex lives, their religion,
limited exception noted above. "When was the first time you had inter- and their family relationships?
JOHNNY I-I, NILLIAN,
, Legislative Attorney. course with your wife? ? Bear in mind that, reprehensible as these
"Did you have intercourse with her before lie detectors are, the bill only limits their
COMMENTS By SENATOR ERVIN: WHY TiE CIA you were married? use in certain areas, and the Director may
"How many times?" still authorize their use if he thinks it nec-
AND NSA SHOULD NOT -BE EXCLUDED FROM
Per-
TUE Pnovasimes op S. 1035, ME Bfax. 'To. What an introduction to American govern- essary to protect the national security. Pee-
PaOTECT. EMPLOYEE RIGHTS . ment for these young people I sonally, I fear for the national security if its
The Subcommittee has also received COM,. protection depends on the use of such de-
The Central Intelligence Agency and the rnents from a number of professors indi- vices.
National Security Agency have asked that eating the concern on their faculties that Similarly, the question may be asked, why
the guarantees in S. 1035 not be extended their students were being subjected to such should these agencies force their employees
to their employees or to citizens who apply practices. . to disclose all of their and their families' as-
ter employment with those agencies. That we are losing the talent of many sets, creditors,- personal and real property,
I see no practical or policy reasons for qualified people who would otherwise choose unleSs they are responsible for handling
granting this request, and find no constitu- to servo their government. is illustrated by money? Nevertheless, under the bill, the CIA
Lionel grounds fen it. It le neither neeeSsary the f0110Wing letter which was received by and NSA have been granted the exemption
1101' MSC/liable. ' IiepreeeritatiVe Cornelius Gallagher, Maar- they wished, to require their employees to
The men who dratted the Constitution man of the Special House Government Op- disclose such information, lithe Director says
envisioned a government of laws, not of men, orations Committee investigation of inva- it is necessary to protect the national se-
They meant that wherever our national sions of privacy; ? curity. What more do they want?
boundaries should reach, there the controls "I am now a Foreign Service Officer with Apparently, what they want is to stand
established in the Constitution should apply the State Department and have been most above the law. ?
to the actions of government. The guarantees favorably impressed with the 'Department's Taken all together, their arguments for
of the amendments hammered out in the security measures. complete exemption suggest only one conclu-
' state constitutional conventions and in the "However, sonic years ago I was considered hon?that they want the unmitigated right
meetings of the First Congress had no limi- for employment by the CIA and in this con- to kick Federal employees around, deny them
tations. They were meant to apply to all motion had to take a polygraph test. I have respect for individual privacy and the basic
Americans; not to all Americans with the never experienced a more humiliating, situs,- rights which belong to every American re-
exception of those employed by the Central Lion, nor one which so totally violated both gardless of the mission of his agency.
Intelligence Agency and the National Se- the legal and moral rights of the individual. The idea that any government agency is
curity Agency. ? In particular, I objected to the manner in entitled to the "total man" and to knowledge
My research has revealed no language in which the person administering the test and control of all the details of his personal
our Constitution which envisions enclaves posed questions, drew subjective inferences and community life unrelated to his employ-
in Washington, Langley, or Fort IVIcado, and put my own moral beliefs up for just- ment or to law enforcement is more appro-
where no law governs the rights of citi- neaten. Sufi:tee it to say that after a short prints) )or totalitaeian countries than for a
zens except that of the Director of an time I was not a 'cooperative' subject, and society of free men. The basic premise of
agency. Nor have I found any decision of the administrator said he couldn't make any S. 1035 is that a man who works for the Fed-
the highest court in the land to support sense from the polygraph and called in his oral government sells his services, not his soul,
e81.1011a proposition. eupezior, the 'deputy chief.' _
Why, then, do these agencies want to bo "The deputy chief begali in patronizing, Ease= To CENTRAL INTELLIGENCE AGENCY
exempt from this bill? reassuring tones to convince me that all he OBJECTIONS TO S. 1033, A BILL TO PROTECT
IS it that, unbeknown to Congress, their wanted was that I tell the truth, I then made THE RIGHTS OF FEDERAL EMPLOYEES .
mission is such that they must be able to a statement to the effect that I had gone to The Central Intelligence Agency, in a re-
order their employees to go out and lobby a Quaker school in Philadelphia, that I had, port which was stamped "secret." stated a
In their communities for open-housing leg- been brought up at home and iii school with number of objections to this bill. At tile
islation or take part in Great Society poverty certain moral beliefs and principles, that I request of CIA representatives. these wore
programs? had come to Washington from nay University also explained to nee at length in personal
Must they order them to go out and sup- at the invitation of the CIA to apply for a discussions. Their suggestions weee care-
port organizations, paint fences, and hand position, not to have my statements of a fully considered in Committee and the bill
out grass seeds, and then to come back and personal and acrious nature questioned not was carefully redrafted and amended to meet
tell their supervisors what they did in their only as to their truth but by implication as them. I believe the agency now has no legit-
spare time and with their Weekends? to their correctness, and that I strongly oh- imato complaint other than their natural
Do they have occasion to require theic jected to the way this test Was being admin- lack of enthusiasm about being subject to
employees to go Out and work for' the nomi- istered. any law, Following is a summary of their
Ill-Lion or election of candidates for public. "The deputy chief gave nee a wise smile objections and the Provisions in 8. 1035
oflice? Must they order them to attend meet- and leaning forward said, 'Would you prefer which meet them. I believe the seine aesni-
Inge and fund-raising dinners for political ' that we need the thumb screws?' ( I) I was ments will apply to other security positions
parties in the United StatAn-
pproved' For Release t20Q5/0p10 ?I'VA41DP11124130340ROG020010002514r. w"cro v'''of,es
Do they not know how to evaluate a scors-. emended that a liar ly thchignt is was a mice- posi -dons are not coverer , the Sobemionittee 1 3
tees, for employment without pelting hee *Won of oltber polyurnpil oi: the thurob femet ran.lre a policy cleci/Aon that, eiihject ee
leiese ilia' X',,Y,.6-it am If A110 his (lifirriMit l; Th'..i'vV;::, liPq WV *10 0;170. ;--,Q1*vico 15:,:i.;;1ti01-,;,;? .;:.-.
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Honor Zvi, 3r.Cha4rmar.
\tb?coolmitterta trAitatiormi iti,03.t4 ?
Cernmittee OA the judietary
rated $teatite Soiaate -
Weehington. C. 20510
My dear Mr. Chairrna
I very much app
toe S. 78Z with Ova Conera
ii
..Ag-ency.
you took last Monday to
el ad 1.0,0alative Counsel
As you know, we still believe thure. are serious problems
connecte4 with certain provisions of this bill. I would, thoreforo,
like an opportunity to present our VieWID to the Subcommittee.
LC4 order to discuse ma ?problem fully
you could see your way. clear for no t
exeCUtlVe 6064i0.41.
d cd1dy, I would
clve ray t ny
?/a/ B1 ca!'i ilottfd
i4Z4 cl Helm a
Director
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JR.
CAROLINANORTH
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"ilenifeb Ziatez Zonate
WASHINGTON, D.C. 20510
March 5, 1969
Honorable Richard Helms
Director
Central Intelligence Agency
Washington, D. C. 20505
Dear Nr. Helms:
Notwithstanding the fact that I do not see any way
In which the Federal Employees Bill of Rights will substantialky
disadvantage the CIA in the performance of its duties,' would ?-
appreciate it very much if your Counsel would present to me
drafts of any proposed amendments which you and he deem essential.
I believe that the CIA now enjoys as totalitarian
powers as can be tolerated by a free society, and for this reason,
am unwilling to consent to any amendment which would grant the
CIA total exemption from a bill which merely attempts to secure
to federal employees basic rights belonging to every American.
Sincerely yours,
Sam J. Ervin, Jr.
SJE:mm
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C
AMES O. EASTLAR pm/946E0r Release 2005/07/13 : CIA-RDP72-003145,000200408025E8
EVERETT MCKINLEY ogjes,CN, ILL. SAM J. ERVIN, JR., N.C., CHAIRMAN
SSOAH.N.t.EMC,ZEJLRL.ANN,.cA.RK.
ROMAN L. HRUSKA, NEBR.
THOMAS J. DODD, CONN. HIRAM L. FONG, HAWAII
PHILIP A. HART, MICH. HUGH SCOTT, PA.
EDWARD V. LONG, MO. STROM THURMOND, S.C.
EDWARD M. KENNEDY. MASS,
BIRCH BATH, IND.
QUENTIN N. BURDICK, N. OAK.
JOSEPH D. TYDINGS, MD.
GEORGE A. SMATHERS, FLA.
JOHN H. HOLLOMAN III
CHIEF COUNSEL AND STAFF DIRECTOR
JOHN L. MCCLELLAN, ARK. ROMAN L. HRUSKA, NEBR.
EDWARD V. LONG, MO. HIRAM L. FONG. HAWAII
EDWARD M. KENNEDY, MASS. STROM THURMOND. S.C.
BIRCH BATH, IND.
GEORGE A. SMATHERS, FLA.
Cniteb Zenate
COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS
(PURSUANT TO S. RES. 298, BOTH CONGRESS)
WASHINGTON, D.C. 20510
March 4, 1969
Honorable Richard Helms
Director, Central Intelligence Agency
Washington, D. C.
Dear Mr. Helms:
PAUL L. WOODARD.
CHIEF COUNSEL AND STAFF DIRECTOR
In response to your letter of February 28, the Subcommittee will be
happy to arrange an open hearing so that you may discuss S. 782, the
federal employee privacy bill.
Since the Subcommittee's agenda, like my own, is quite full, I would
hope this can take place within the next two weeks.
I had thought all the issues were thrashed out two years ago when
this proposal was amended to meet the objections of your agency. If
there are any others, I hope we can get them cleared up so the bill can
be enacted.
With all kind wishes, I am
Sincerely yours,
Sam J. Ervin, Jr.
Chairman
SJE :mine
SZ40
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DRAFT
14 March 1969
The Honorable Sam J. Ervin, Jr. , Chairman
Subcommittee on Constitutional Rights
Committee on the Judiciary
United States Senate
Washington, D. C. 20510
My dear Mr. Chairman:
In your letter of March 4th responding to my request for a
hearing in executive session in connection with S. 782, you
.state that the Subcommittee would be happy to arrange an open
hearing. In your subsequent letter of March 5th you say you
would appreciate a draft of any proposed amendments which we
deem essential. You further state that you are unwilling to
consent to any amendment which would grant CIA total exemption
from a bill which merely attempts to secure to Federal employees
basic rights belonging to every American.
I wish to make the record clear that my colleagues and
I in the Central Intelligence Agency are as keenly interested as
any American in protecting the constitutional rights and freedoms
of all of our citizens. Most of us joined the Agency in the first
place, and continue to work for it, because we believe in the basic
democratic freedoms and because we believe in them strongly
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enough to be concerned over the threat to these freedoms by
external, aggressive forces. Our men undertake difficult and
often dangerous missions abroad in the firm conviction that they
are helping to preserve the democratic rights of the American
people.
It is an undeniable, if unfortunate, fact of life that the
international community is neither bound by ironclad guarantees
against aggression and subversion nor composed exclusively of
peaceful, stable democracies. It is this reality which confronts
the U. S. Government, which shapes the mission of the Central
Intelligence Agency. In the real world the survival of the United
States as a free and democratic state depends on its ability to
protect itself against the aggression and subversion of hostile
powers.
Survival requires that the forces, the plans, and the
weapons with which we would defend ourselves are safeguarded
from potential enemies. Similarly, it is vital that we have fore-
knowledge of the capabilities and intentions of a potential enemy
to attack us. And so it is clear that in this struggle which has
been forced upon us we have no choice but to ensure the integrity,
the high morale, and the competence of the men and women who
work with our vital secrets and seek out those of the potential
enemy.
2
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The record is clear that the various departments of the
U. S. Government responsible for our national security are
prime targets for penetration by Communist intelligence services.
They have initiated world-wide projects to seek out and recruit
Americans --official and private, civilian and military--to conduct
penetrations and subversions and acquire this Government's
sensitive national security information. We are all too keenly aware
of the successes which have been achieved.
The overriding emphasis of our enemies on the recruitment
of people, particularly Government employees, may help to explain
the significance which must be attached to our ability to rely
implicitly on the security, loyalty and integrity of those persons
we employ. Such reliance can be possible only if we have the fullest
knowledge about each employee so we can assess his integrity,
emotional stability under stress, and any weaknesses which might
make him susceptible to hostile influence.
I believe S. 782 inhibits our ability to obtain this essential
knowledge, but beyond this it provides for certain administrative
procedures which raise even more serious problems. As you
know, I have statutory responsibility for protecting intelligence
sources and methods from unauthorized disclosure. This is a
heavy responsibility and important to the national security.
3
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Three provisions of S. 782 are, I believe, in conflict with this
responsibility:
Section 1(k) gives any employee the right to counsel
or other person of his choice if he is asked to submit to
interrogation which could lead to disciplinary action.-
Such interrogation can involve most sensitive information,
particularly as to intelligence sources and methods, and
this would permit presence of uncleared and possibly
hostile counsel at the earliest stages.
Section 4 gives any employee or applicant who alleges
he is affected or aggrieved by the violation or threatened
violation of any provision of the act immediate access to
the United States District Court without regard to whether
such employee or applicant shall have exhausted any
administrative remedies which may be provided by law.
Again, sensitive information, particularly as to sources
and methods, may well be involved and would thus be
revealed in open court.
Section 5 establishes a Board on Employees' Rights
which would have the authority and duty to receive and
investigate written complaints from or on behalf of any
person claiming to be affected or aggrieved by any violation
4
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or threatened violation of the act. This would permit
airing before this Board situations which might again
involve the most sensitive information.
These three administrative provisions are, I believe, in clear
conflict with my statutory responsibilities and are unnecessary,
as adequate machinery is provided for any employee or applicant
for employment who considers himself aggrieved.
A thorough exploration of the foregoing points would
necessarily go into the inner workings and detailed operations
of the Agency. I believe it would not be in the national interest
to do so in an open hearing, but I would be pleased with the
opportunity to do so in executive session. The solution which
appears to be most nearly consistent with the national security
_ ?
a complete exemption from the bill for the Central Intelligence
Agency and for other sensitive agencies similarly situated.
We are, -however7?pr---:?eparing ]The-li-anguage w ic mig a e
those features of the bill we believe to be seriously objectionable
and will submit our suggestions shortly in accordance with your
request.
Sincerely,
Richard Helms
Director
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S.782 *Isie
1:13E
The objectives of S.782 we would all agree are laudable in attempting to assure against
inreasonable actions with regard to Government employees. However, as phrased, a number
)f provisions would have an adverse and disruptive effect on procedures and practices of
21A which have been developed over the years to screen out disloyal or unsuitable employees.
rhe bill would:
1. Preclude the Agency from taking notice of any employee's attendance at a meeting
held by a subversive group or organization. [Sec. 1(b) and Sec. 1(d)]
2. Give any employee the right to counsel or other person of his choice if he is asked
to submit to interrogation which could lead to disciplinary action. Such interrogation can
involve most sensitive information, particularly as to intelligence sources and methods, and
this would permit the presence of uncleared and possibly hostile counsel at the earliest stages.
[Sec. 1(k)]
3. Would require a personal finding by the Director, or his designee, in each case
with respect to certain key questions in polygraph or psychological tests. [Sec. 63 CIA asks
these questions of all applicants because it has been determined that they are required to
protect national security. It is a fact that literally hundreds of homosexual cases have been
uncovered during polygraph interviews where prior full-field investigations had failed to
uncover the true situation. The requirement for individual determinations would impose an
arbitrary and unnecessary impediment to an otherwise orderly and systematic procedure.
4. Permit an employee or applicant, who alleges that he is affected or aggrieved by
any violation or threatened violation of any provision of the act, immediate access to the U.S.
district court without regard to whether such employee or applicant shall have exhausted any
administrative remedies which may be provided by law. Communists, or other subversives
acting on their own or on instructions from foreign agents, could file suits for the sole
purpose of harassment based on allegations of improper questioning during recruitment
interviews. There is little doubt that such groups would be quick to recognize and exploit
:he weapon provided by this Section. The mere filing of such complaints let alone a hearing on
he merits would involve almost inevitably classified information concerning the Agency and
cs activities. [Sec. 4] Moreover, a campaign of leftist inspired harassing litigation would
eriously burden Agency administrative resources and might virtually paralyze our recruitment
?rogram.
5. Establish a Board of Employees' Rights which would have the authority and duty to
receive and investigate written complaints from or on behalf of any employee or applicant
claiming to be affected or aggrieved by any violation or threatened violation of any provision of
the act. This would permit airing before this Board situations which might again involve
information which would be detrimental to the national security. In a CIA case it might well be
that a defendant employee had been ordered by the Director not to provide information on a
matter since it was highly classified; thus, we would have a conflict between the Board's
authorities and the Director's responsibility for protection of intelligence sources and methods.
[Sec. 5]
These provisions are, we believe, in clear conflict with the statutory responsibilities
of the Director of Central Intelligence and are unnecessary, since adequate machinery is
provided for any employee or applicant for employment who might consider himself aggrieved.
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01sT CONGRtSS
iST SESSION
Se 782
IN THE SENATE OF THE UNITED STATES
JANUARY 31, 1969
Mr..14'invIN- (for himself, Mr. BAY'', Mr. BIBLE, Mr. BROOKE, Mr. BtnuncK, Mr.
.13-rnD of Virginia, Mr. Oilmen, Mr. CooK, Mr. COOPER, Mr. DIRKSEN, Mr.
DODD, Mr. DOLE, Mr. DomiNrcic, Mr. EAGLETON, Mr. 14'ANNIN, Mr. FONG,
Mr. GoLDwATER, Mr. (nAvEL, Mr. GURNEY, Mr. HANsEN, Mr. HATFIELD,
? Mr. HnusKA, Mr. INourE, Me. JORDAN of North Carolina, Mr. JORDAN of
? IDAHO, Mr. McGARTur, Mr. TlicerEE, Mr. MeGovERN, Mr. McINTyllE., Mr.
MAgNusoN, Mr. MATMAS, Mr. METCALF, Mr. MILLER, Mr. MONTOYA, Mi',
MuNDT, Mr. MtsKIE, Mr. NELSON, Mr. PEARSON, Mr. PERCY, Mr. PROUTY,
Mr. PROXMIRE, Mr. RANnoult,, Mi.. SAX13E, Mr. SCIEWRIKER, Mr. SCOTT, Mr.
"SPARKMAN, Mr. SPONG, Mr. 8q1VEri8, Mr, TALMADGE, Mr. LIURM0ND1
TOWER, Mr. TYDINOS, MT. WILLIAMS of New Jersey, and Mr. YARBonovon)
introduced the following bill; which was read twice and. referred to the
? -,, - ?
Committee on the Judiciary . 1
,
A BELL
To protect the civilian employees of the executive'branch of the
United States Government in the enjoyment of their con-
stitutional rights and to prevent unwarranted governmental
invasions of their privacy.
1 Be it enacted by the Senate and House of Representa-
2 aims of the United States of America in Congress assembled,
3
4
SECTION 1. It shall be unlawful for any officer of any
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3
1 son acting or purporting to act under his authority, or by any
2 outside parties or organizations to advise, instruct, or in-
3 doctrinate any civilian employee of the United States serving
4 in the department or ,agency in respect to any matter or
5 subject other than the performance of official duties to which
he is or may be assigned in the department or agency, or.
7 the development of skills, knowledge, or abilities which
8 qualify him for the performance of such duties: Provided,
9 however, That nothing contained in this subsection shall be
10 construed to prohibit taking notice of the participation of a
11 civilian employee in the activities of any professional group
12 or association.
13 (c) To require or request, or to attempt to require or
14 request, any civilian employee of the United States serving
15 in the department or agency to participate in any way in
16 any activities or undertakings unless such activities or under-
17 takings are related to the performance of official duties to
18 which he is or may be assigned in the department or agency,
19 or to the development of skills, knowledge, or abilities which
20 qualify him for the performance of such duties.
21 (d) To require or request, or to attempt to require
22 or request, any civilian employee of the United States serv-
23
24Aolia44Faiamea&s.)ailott.A4P Fagfita641 unless such
- - 000200100025-25 8
activities or undertakings are related to the performance .of
ing in the department or agency to make any report 'con-
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4
1 official duties to which he is or may be assigned in the
2, department or agency, or to the development of skills, knowl-
edge, or abilities which qualify? him for the performance of
4 such duties, or unless there is reason to believe that the
, 5 civilian employee is engaged in outside activities or employ-
(*) ment in conflict with his official duties.
.7, '
(e) To, require or request, or to attempt to require or
request, any civilian employee of the United States serving
9 , in, the department or agency, or any person applying for
1? employment as a civilian employee in the executive branch
11 of the United States Government, to submit to any interroga-
12 tion or examination or to take any psychological test which
13 is designed to elicit from him information concerning his
14 . personal relationship with any person connected with him
15 by blood ,or marriage, or concerning his religious beliefs or
practices, or concerning his attitude or, conduct with respect
17 to sexual matters: Provided, however, That nothing con-
18 tamed in this subsection shall be construed to prevent
19,a physician from eliciting such information or authorizing
20 such tests in the diagnosis or treatment of ,any civilian
21, employee or applicant where such physician deems such
11.
22 information necessary to enable him to determine whether
.1,
23 or not such individual is suffering from mental illness: Pro-
24
,
vided further, however, That this determination shall be made
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25
in(vi
1. 'd cases and not pursuant to,,generai practace or
:1,
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NI
5
1 regulation governing the examination of employees or appli-
2 " cants according to grade, agency, or duties: Provided further,
3 however, That nothing contained in this subsection shall be
4 construed to prohibit an officer of the department or agency
5 from advising any civilian employee or applicant of a specific
G' 'charge of sexual misconduct made against that person, and
,
7 L' affording him an opportunity to refute the charge. ?
8 (f) To require or request, or attempt to require or
9 request, any civilian employee of the United States serving
10 in the department or agency, or any person applying for
11 employment as a civilian employee in the executive branch
12 "'of the United States Government, to take any polygraph
13 test designed to elicit from him information concerning his
14 personal relationship with any person connected with him
15 by blood or marriage, or concerning his religious beliefs or
, ;
10 practices, or concerning his attitude or conduct with 'respect
17 to sexual matters.
18 (g) To require or request, or to attempt to require
19 or request, any civilian employee of the United States serving
20 111 the department or agency to support by personal 'endeavor '
?
21 '' or eontributiai of money or any other dung of value the
22' nomination or the electlim of any person or group of 'persons
to publio aloe in the' Government of the United States or of
24 .'any State, 'district, Commonwealth, territory, or possession
,y?
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6
1 of the United States, or to attend any meeting held to pro-
,'
2 mote or support the activities or undertakings of any political
3 party of the United States or of any State, district, Common-
4 wealth, territory, or possession of the United States.
5 (h) To coerce or attempt to coerce any civilian
6 employee of the United States serving in the department or
7 agency to invest his earnings in bonds or other obligations
or securities issued by the United States or any of its depart-
9 ments or agencies, or to make donations to any institution
10 or cause of any kind: Provided, however, That nothing con-
tained in this subsection shall be construed to prohibit any
12 officer of any executive department or any executive agency
13 of the United States Government, or any person acting or
14 purporting to act under his authority, from calling meetings
15 and taking any action appropriate to afford any civilian cm-
16 of the United States the opportunity voluntarily to
17 invest his earnings in bonds or other obligations or securities
11
?
18 issued by the United States or any of its departments or
19 agencies, or, voluntarily to make donations to any institution
20 or cause.
21 (i) To require or request, or to attempt to require
22 or request, any civilian employee of the United States
23 , serving in the department or agency to disclose any items
of his property, income, Or other assets, source of income,
roormigtv*swiNofkluart-RpFeamaioRoop2adition26=er
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7
1 those of any member of his family or household: Provided,
2 however, That this subsection shall not apply to any civilian
3 employee who has authority to make any final determination
4 ? with respect to the tax or other liability of any person, cor-
5 poration, or other legal entity to the United States, or
6 claims which require expenditure of moneys of the United
7 States: Provided further, however, That nothing contained
8
9
10
11
in this subsection shall prohibit the Department of the
Treasury or any other executive department or agency of
the United States Government from requiring any civilian
employee of the United States to make such reports as may
12 be necessary or appropriate for the determination of his
13 liability for taxes, tariffs, custom duties, or other 'obliga-
tions imposed by law.
15 (j) To require or request, or to attempt to require
or request, any civilian employee of the United States
17 embraced within the terms of the proviso in subsection
18 (1) to disclose any items of his property, income, or
19 other assets, source of income, or liabilities, or his personal
20 or domestic expenditures or those of any member of his,
21 family or household other than specific items tending to
22 indicate a conflict of interest in respect to the perform-
,.
alive of any of tho official duties to which he is or may be
24 assigned.
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8
request, any civilian employee of the United States serving
2 in the department or agency, who is under investigation for
'3 misconduct, to submit to interrogation which could lead to
4 disciplinary action without the presence of counsel or other
5 person of his choice, if he so requests.
(1) To discharge, discipline, demote, deny promo-
7 tion to, relocate, reassign, or otherwise discriminate in
8 regard to any term or condition of employment of, any civil-
9 ian employee of the United States serving in the department
10 or agency, or to threaten to commit any of such acts, by
11 reason of the refusal or failure of such employee to submit
12: to or comply with any requirement, request, or action made
13 unlawful by this Act, or by reason of the exercise by such.
14 civilian employee of any right granted or secured by this
- 15 Act.
16 SEO. 2. It shall be unlawful for any officer of the United
17' States Civil Service Commission, or for any person acting
18 or purporting to act under his authority, to do any of the
19 following things:
20 ' (a) To require or request, or to attempt to ',moil%) or
21 request, any executive department or any executive agency
22 of the United States Government, or any officer or mployco ,
23 serving in such department or agency, to vioialo any of Lim
24 _ provisions of section of 0144 Act.
Approved
FAR9ligeoaMPIT007PhilTet'Nfr7r R8,190993P9MOM-ge.
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9
1 request, any person seeking to establish civil service status
2 or eligibility for employment in the executive branch of the
?
United States Government, or, any person applying for cm-
4 ployment in the executive branch of the United States Gov-
5 ernment, or any civilian employee of ,tho United States
6 serving in any department or agency of the United States
7 Government, to submit to any interrogation or examination
8 or to take any psychological test which is designed to elicit
9 from him information concerning, his personal relationship
10 with any person connected with him by blood or marriage,
.1 or concerning his religious beliefs or practices or concerning
12 , his attitude or conduct with respect to sexual matters: Pro-
13 vided, however, That nothing contained in this subsection
14 shall be construed to prevent a physician from eliciting such
15 information or authorizing such tests in the diagnosis or
16 treatment of any civilian employee or applicant where such
17 physician deems such information necessary to enable him
18 to determine whether or not such individual is suffering
19 from mental illness: Provided further, however, That this
20 determination shall be made in individual cases and not pur-
21 suant to general practice or regulation governing the exami-
22 nation of employees or applicants according to grade, agency,
23 or duties: Provided further, however, That nothing contained
24 in this subsection shall be construed to prohibit an officer of
8. 782?.`)
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Approved For ReWeve,2005/07/13 : CIA-RDP72-00310ROC*00100025-8 ?
10
1 the Civil Service Commission from advising any civilian '
'2 employee or applicant of a specific charge of sexual miscon,-
3 duct made against that person, and affording him an oppor-
4 tunity to refute the charge.
5 ' (c) To require or request, or to attempt to require
6 or request, any person seeking to establish civil 'service
' 7 status or eligibility for employment in the executive branch
8 of the United States Government, or any person applying
9 for employment in the executive branch of the United States
?. 10' Government, or any, civilian employee of the United States
? 11 serving in any department or agency of 'the United States
12 Government, to take any polygraph' test designed to elicit
13 from him information concerning his personal relationship
14' with any person connected with him by blood or marriage,
15 or concerning his religious beliefs or practices, or concerning
16 his attitude or conduct with respect to sexual matters.
17 SEC. 3'. It shall be unlawful for any commissioned officer,
' as defined in section 101 of title 10, United States Code, or
19 any member of the Armed Forces acting or purporting to
2.0 act under his authority, to require or request, or to attempt
21 ' to require or request, any civilian employee of the executive
branch' of the United States Government under his authority
23 ;'or subject to his supervision to perform any of the acts or
submit to any of the requirements' made unlawful 'by section
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,:4`) 1 of this Act.
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11
8E0. 4. Whenever any officer of any executive depart-
2 ment or any executive agency of the United States Gov-
3 ernment, or any person acting or purporting to act under his
4 authority, or any commissioned officer as defined in section
5 101 of title 10, United States Code, or any member of the
6 Armed Forces acting or purporting to act under his author-
7 ity, violates or threatens to violate any of the provisions of
8 section 1, 2 or 3 of this Act, any civilian employee of the
9 United States serving in any department or agendy of the
10 United States Government, or any person applying for
11 employment in the executive branch of the United States
12 Government, or any person seeking to establish civil 'service
13 ' status or eligibility for employment in the executive branch
of the United States Government, affected or aggrieved by
15 the violation or threatened violation, may bring a civil action
16 in his own behalf or in behalf of himself and others
17 'similarly situated, against the offending officer or person in
18 the United States district court for the district in which the
19 , violation occurs or is threatened, or the district in which the
20 offending officer or person is found or in the United States
21
24
25
District Court for the District of Columbia, to prevent
the threatened violation or to obtain redress against the
consequences of the violation. The Attorney General shall
defend all officers or persons sued under this section
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'W110 acted ' pursuant to an order," regulation, or directive,
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12
.1.., or who, ?n his opinion, ,did not willfully , violate the
2,; provisions, of this Act.. Such United, States district court
3 shell have jurisdiction to try and determine such civil action
, 4, , irrespective of the actuality :or amount of pecuniary injury
,done. or threatened, and without regard to, whether the
;aggrieved . party shall have exhausted any administrative
7 remedies that may be provided by law, and to issue such
?8 :restraining order, , interlocutory : injunction, permanent in-
. 9, junction, or ,mandatory injunction,. or, enter such other judg-
10, ment or decree as may be necessary or appropriate, to prevent
n? the threatened violation, or to afford the plaintiff and others..
12. similarly situated complete relief against the, consequences of
13. the violation. With the written consent of any person
14 effected or aggrieved by a violation or threatened violation
15 of section 1, 2, or 3 of this Act, any employee organization
16 may bring such action on behalf of such person, or may
17 intervene, in such action. For the purposes. of . this section,
.18 employee organizations shall, be construed to include any
19 brotherhood,_ council, federation, organization, union, or pro-
20. fessional association made up in whole or in part of civilian
21 employees of the United States and which has as one of its
22 purposes dealing with departments, agencies, commissions,.
23 and independent agencies of the United States concerning
24 ..the condition and terms of employment of' such employees..
AEroved ,FiRelea se lO7/!3? I-112-52?2229-8go.5.(an0;0, hereby established
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13
1 Employees' Rights (hereinafter referred to as the "Board").
2 The Board shall be composed of three members, appointed
3 by the President, by and with the advice and consent of the
4 Senate. The President shall designate one member as chair-
5 man. No more than two members of the Board may be of
? 6'1 the same political party. No member of the Board shall be
7- an officer or employee of the' United States. Government.
8" ."(b) The term of office of each - member of the Board
9 :shall be five years, except that (1) of those nieniberS? first ?
10' .appointed, one shall serve for fiNio years, one for threeVears,
,
U and one for one year, respectively, from the date ofenact- ,
12 ''lialent of this Act, and (2) any'' member' 'appointed to fill
13 a vacancy occurring prior to the expiration of the term for
,
11 which his predecessor was appointeLshall'be 'pointed for
15 the remainder of such term.
16 (c) Members of the Board shall be compensated at the
17 ??rate of $75 a day for each day' spent in the work ofl the
18' 'Board, and -shall be paid actual travel expenses and per
19 diem in lieu of subsistence expenses when 'away' from their
20 "' usual places of residence, as authorized -byiSeCtiori 5703 of
21 title 5, United States Code.
2210 d ). ? Two Members shall constitute' a 4uortith 'for the-
23 ' 'transaction of business.
? I ,
1' ,,
.11!?
24 :'''''''(o) The''Board may 'appoint and' fix th6' 'corn onsation
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c)iwo
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14
of such officers, attorneys, and employees, and make such
2,,. expenditures, as may be necessary to carry out its functions.
3 (1) The Board shall make such rules and regulations
4 as shall be necessary and proper to carry out its functions.
5
7
8
(g) The Board shall have the authority and duty to
receive and investigate written complaints from or on be-
half of any person claiming to be affected or aggrieved by
any violation or threatened violation of this Act and to con-
9 duct? a hearing on each such complaint. Within ten days
10
.11
12
after the receipt of any such complaint, the Board shall
furnish notice of the time, place, and nature of the hearing
thereon to all. interested parties. The Board shall render
13,1 its final decision with respect to any complaint within thirty
14 days after the conclusion of its hearing thereon.
15 (h) Officers or representatives of any Federal employee
16! , organization in any degree concerned with employment of
17 the category in which any alleged violation of this Act
18 occurred or is threatened shall be given an opportunity to
19 participate in each hearing conducted under this section,
20 through submission of written data, views, or arguments,
? 21 and in the discretion of the Board, with opportunity for oral
22 presentation. Government employees called upon by any
23 party or by any Federal employee organization to participate
24 in any phase of any administrative or judicial proceeding
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25 under this section shall be free to do so without incurring
Approved For Re!ego 2005/07/13 : CIA-RDP72-00310R00621513100025-8
15
travel cost or suffering loss in leave or pay; and all such em-
2 pToyees shall be free from restraint, coercion, interference,
3 intimidation, or reprisal in or because of their participation.
4 Any periods of time spent by Government employees during
5 such participation shall be held and considered to be Federal
G employment for all purposes. s.
7 ,(i) Insofar as consistent with the purposes of this sec-
8 tion, the provisions of subchapter II of chapter 5 of title 5,
9
10
11
12
United States Code, relating to the furnishing of notice and
manner of conducting agency hearings, shall be applicable
to hearings conducted by the Board under this section.
(j) If the Board shall determine after hearing that a
13 violation, of this Act has not occurred or is not threatened,'.
14 the Board shall state its determination and notify all inter-
15 ested parties of such determination. Each such determina-
16 tion shall constitute a final decision of the Board for pur-
17 poses of judicial review.
' 18 (k) If the Board shall determine that any violation
19 of this Act has been committed or threatened by any civil-
20 ian officer or employee of the United States, the Board shall
21 immediately (1) issue and cause to be served on such of-
22 ficer or employee an order requiring such officer or employee
.)."1
21
to cease and desist froin the unlawful act or practice which.'
constitutes a violation, (2) endeavor to eliminate any such
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16
1' 'unlawful act or practice by informal methods of' Conference,
2 'I 'conciliation, and persuasion, and (3) maY-
3111j1",
4
'(A) (i) in the case of the 'first offense by any
" civilian officer or employee of the. -United States,' 'other
than any officer appointed by the President, by and with
6 the advice and consent of the Senate, issue an official
reprimand against such officer or employee or order the
8 "1 suspension without pay of such officer or employee from
9 the position or office held by him for a period of not to
10. exceed fifteen days, and (ii) "in the case- of 4- second
or 'subsequent offense by any such officer or employee;
12 HI 'order the suspension without pay of such' 'officer or em-;
13'0 ploye,e from the position or office held by him' for a
14 1, period of not to exceed thirty days or order the removal
-15 '"'i ' 'of such officer or employee. from 'such' position or' office;'
16.',i
'and?
17:f
(B) in the case of any offense by 'any officer" ap-
' pointed by the President, by 'and with the' "advice and
19
I /
consent of the Senate, transmit a report concerning ?such-
violation to the President and the Congress.
21 , (1) If the Board shall determine that any violation
, 22 of this 'Act has been committed or threatened by any officer
23 of any of the Armed Forces of the United States, or any
24" person purporting to act under authority'. conferred by' such
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25 officer, the Board shall (1) submit a report thereon to the
;11
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17
President, the Congress, and the Seeretary, of the military
2 department concerned, (2) endeavor to eliminate any un-
3 lawful act or practice which constitutes such a v,iolation by
4,, informal methods of conference conciliation, and persuasion,
5 , and. (3) refer its determination and the record in the case
,to any person authorized to convene general courts-martial
74 under section 822 (article 22) of title 10, United States
Code. Thereupon such, person shall take immediate steps
9 to dispose of the matter under chapter 47 of tit1e10,,Knited
10 States Code (Uniform Code of Military, Justice) .
11 (in) Any party aggrieved byany ,final determinati9n
12 or order of the Board may institute, in the district court of
13 the United States for the judicial district wherein the viola-
14 tip or threatened violation of this Act, occurred, or in the
15 United States District Court for the District of Columbia,
16 a civil action for the review of such determination or order.
17 In any such action, the court shall have jurisdiction to (1)
18. affirm, modify, or set aside any determination or;order made
19 by the Board which is under review, or, (2) ,require the
201 Board to make any determination or order which it is author-
21 ized to make under subsection (k) , but which it has refused
22 to ,make., The reviewing court shall set ,aside any finding,
23
conclusion, determination, or order of the,13op,rd as to which
vomplaiut maclo which -is unsupported by s,nbstantial evi- ?
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, clime? on the recora conswerect as a Wil.010. f
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18
? 1 (n) The Board shall submit, not later than March 31
?2 of each year, to the Senate and Nouse of Representatives,
3 respectively, a report on its activities under this section dur-
4 ing the immediately preceding calendar year, including a
,5 statement concerning the nature of all complaints filed with
6 it, its determinations and orders resulting from hearings
? 7 thereon, and the names of all officers or employees of the
8 United States with respect to whom any penalties have been
9 imposed under this section.
10 (o) There are authorized to be appropriated sums neo-
n essary, not in excess of S 100,000, to carry out the provisions
12 ' of this section.
13 Sal. 6. Nothing contained in this Act shall be construed
14 to prohibit an officer of the Central Intelligence Agency or
15 of the National Security Agency or of the Federal
16 Bureau of Investigation from requesting any civilian em-
17 ?ployee or applicant to take a polygraph test, or to take a
18 psychological test, designed to elicit from 'him information
19 concerning his personal relationship with any person con-
20 nected with him by blood or marriage, or concerning his
21 religious beliefs or practices, or concerning his attitude or
22 conduct with respect to sexual matters, or to provide a per-
23 'sonal financial statement, if the Director of the Central
24 ' Intelligence Agency or his designee or the Director of the
Alt" Icel.,Mge 111?frrgli)14c IIINCWAV?892E ?Mao r
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19
1 of the Federal Bureau of Investigation or his designee makes
2 a personal finding with regard to each individual to be
3 so tested or examined that such test or information iS required
4 to protect the national security.
5 SEc. 7. Nothing contained in sections 4 and 5 shall be
6 construed to prevent establishment of department and
7 agency grievance procedures to enforce this Act, but the
8 existence of such procedures shall not preclude any appli-
9 cant or employee from pursuing the remedies established
10 by this Act or any other remedies provided by law: Pro-
vided, however, That if under the procedures established,
12 the employee or applicant has obtained complete protection
13 against threatened violations or complete redress for vio-
14 such action may be pleaded in bar in the United
15 States District Court or in proceedings before the Board on
16 Employee Rights: Provided further, however, That if an
17 employee elects to seek a remedy under either section 4 or
18 section 5, he waives his right to proceed by an independent
19 action under the remaining section.
20 SE'. 8. If any provision of this Act or the application
21 of any provision to any person or circumstance shall be held
22 invalid, the remainder of this Act or the application of such
23 provision to persons or circumstances other than those as to
124 whieh it is held inv4ilid, shall not he a (Tooted.
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Olsr CONGRESS
lsr SESSION
S. 782
A BILL
-
To protect the civilian employees of the executive
branch of the United States Government in the
enjoyment of their constitutional rights and to
prevent unwarranted governmental invasions of
their privacy.
By Mr. ERVIN, Mr. BAYII, Mr. BIBLE, Mr. BROOKE, Mr.
BURDICK, Mr. BYRD of Virginia, Mr. CHURCH, Mr;
COOK, Mr. COOPER, Mr. DIRKSEN, Mr. DODD, Mr.
DOLE, Mr. DOMINICK, Mr. EAGLETON, Mr. FANNIN,
Mr. FONG, Mr. GOLDWATER, Mr. GRAVEL, Mr. GUR-
NEY, Mr. HANSEN, Mr. HATFMLD, Mr. FIRUSKA,
Mr. I).70UYE, Mr. JORDAN of North Carolina, Mr.
JORDAN of Idaho, Mr. -MCCARTHY, Mr. McGEE, Mr. -
2v.ticGovEEN, Mr. McINTEBE, Mr. MAGNusas, Mr,
MATHIAS, Mr. METCALF, Mr. 3ITT.T.PR, Mr. MONTOYA,
Mr. MUNDT, Mr. MusRLE, Mr. NELSON, Mr. PEAR-
SON, Mr. PERCY, Mr. PROUTY, Mr. PROXMIRE, Mr.
RAxDoLea, Mr. SAXBE, Mr. SCHWEIKER, Mr. SCOTT,
Mr. 'SPARKMAN, Mr. 'SPONG, Mr. STEVEN'S, Mr. TAL-
MADGE, Mr. TEC-DIMOND, Mr. Tows, Mr. TYDINGS, '
Mr. 'WILLIAMS Of New Jersey, and Mr. YARBOROUGH
JANUARY 31,1969 ---
Read twice and referred to the Committee on the
Judiciary.:.
7 -
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AMENDMENTS TO S. 782
Page 19, line 2, following "finding" delete "with regard to each
individual to be so tested or examined. "
Page 19, following line 19, insert a new paragraph:
"8. Section 1(b), 1(d), 1(k), and 1(1), and Sections 4 and 5
of this Act shall not apply to the FBI, NSA, CIA, or to
persons employed by, or detailed to, such agencies.
Page 19, line 20, renumber to read SEC. 9.
(These amendments would eliminate all the provisions troubling
the Agency and leave certain limitations which are no problem.
They are, therefore, tantamount to a complete exemption. )
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.5'743
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MEMORANDUM FOR:
SUBJECT:
21 February 1969
The Director
Ervin Bill - S. 782
742N
13111 Woodruff, Scoop Jackson, among others, have suggested you
might want to mention at an early Subcommittee session the problem of
the Ervin bill (S. 782, to protect the constitutional rights and privacy of
Government employees). I hope you find a chance to do this and if so
suggest you make the following points;
1. Our Subcommittee is certainly well aware of the sensitivity
of the kind of material we handle and the kind a operations we
engage in.
2. It is also aware of the Director's statutory responsibility
to protect our sources and methods.
3. We need only look at some of the past experiences of
U.S. agencies (NSA cases for example) and cases of friendly foreign
countries (Philby, Blake, Runge, Imre, etc.) to see the incalculable
damage done by successful Soviet penetrations of free world intelli-
gence organizations.
4. Indeed we have a mass of evidence ttat one of the highest
priorities of the KGB is the penetration of U.S. intelligence agencies.
One successful such penetration might enable the Soviets to identify
and neutralize many of our own operations; learn what we know and
don't know about Soviet capabilities and intentions; gain insights
enabling thorn to confuse and deceive us; and acquire vital information
about U. S. policy, capabilities, technology, etc., with which our
own personnel become familiar in the course of their work.
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5. For these reasons we are very seriously concerned
about the implications of certain provisions of the Ervin bill:
? a. As you know, over the years we have developed a
thorough system of screening and assessing our personnel.
If we didn't carefully chock their security and suitability,
we wouldn't be doing our duty. The Ervin bill would severely
limit us in this regard. It apparently would forbid us to
question an employee regarding his association with known
Communist agents.
b. Perhaps even more serious, provisions of the bill
grant any employee whose performance has been brought into
question, the right to bring in private counsel at the very
outset of an inquiry and to appeal his case to a U.S. district
court. In such cases we would be faced with the problem of
either letting command authority and discipline fall apart,
or going to public trial and being forced to reveal a great
deal more about the Agency and its operations than we would
want.
Especially troublesome too is the provision allowing any A2.2jkar_4
the right to file suit in a district court for alleged violations or threatened
violations of the provisions of the bill (1. e.. questioning an applicant about
his personal life). Under these provisions, leftist organizations, dissident
youth groups, etc., could launch a campaign of litigation virtually paralyzing
the Agency recruitment program and severely straining its administrative
resources.
JOHN M. IvIAUltY
Legislative Counsel
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