S. 1035

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00818R000100010002-1
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 23
• Document Creation Date: December 16, 2016
• Document Release Date: February 7, 2005
• Sequence Number: 2
• Publication Date: May 9, 1968
• Content Type: MF

r[ J t"
Approved For Release 2005/03124: CIA-RDP81-00818R00010001000Z}7;C - bet ' sat 7 /
DEPARTMENT OF DEFENSE
OFFICE OF GENERAL COUNSEL
WASHINGTON, D. C. 20301
May 9, 1968
MEMORANDUM FOR Mr. Lawrence R. Houston, General Counsel
Central Intelligence Agency
For your information, I am enclosing a copy of the proposed DOD
report on S. 1035.
As soon as formal DOD approval is obtained, the report will be
submitted to the Bureau of the Budget.
Robert T. Andrews
Office, Assistant General Counsel
(Manpower and Reserve Affairs)
Approved For Release 2005/03/24: CIA-RDP81-00818R000100010002-1
 Approved For Release 2005/03/24: CIA-RDP81-008R000100010002-1
DEPARTMENT OF DEFENSE
OFFICE OF GENERAL COUNSEL
WASHINGTON, D. C. 20301
May 7, 1963
onorable Sam J. .rvin. Jr.
Chairman, Subcommittee on
Constitutional i'tights, Committee
on the Judiciary
i :..teal States Scnatc
'VL'cc.3 hino,toa. D. C. 2051.0
v
efercnce is made to your request to the Secretary of Defense
for the views of the Department of Defense ,;,ith respect to S. 1035, 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 ;ove-4 nrnental invasion of their
privacy. t0
The purpose of S. 1035 is to make it unlawful to require or
request a civilian employee, or person seeking employment in the
Dear Ldr. Chairman:
c:.;>ecutive branch of the United States Government, to cdisclose his
race, religion, or national origin,, or t'.-.e race, religion, or national
origin of any of his for ebea s o attend. meetings or to participate in
activities un.rclatcd to the performance of his official duties; report
outside activiticS or employment unless there is reason to believe that
those activities conflict with his official duties;, submit to questioning
about his reii iosa. personal relationships or sexual attitudes through
Approved For Release 2005/03/24: CIA-RDP81-00818R000100010002-1
 Approved For Release 2005/03/24: CIA-RDP81-00818R000100010002-1
itG 1VVic'j;i , pz ycholo icy l of poly rac; 11 ), Cu -,PO political
c~~ n6or att~. nd I olitic rac_ tins; buy bonds ar Other o`aliv'.r4 -
tion.s isuued by th_e. United Stat c'i:claw any itcs?;:~~ of his or hi;5
~ t:;ily's property Or income rather than spceific items t nrlin" to
icat a rconfl:lct of intcxe;at with respect to the performance of any
of his official duties, or s'-'C mit. ;,ihcn he is under invcst;i .tiof for
conrlt;.ct, to interrogation which couic4 lead to di.iciplinary action
.
v,ithout the i;xeFsence of requeste cc~'uuc el, d provide a:niorce: ze:ixt
bill vets juri ,d .c'tian. in the United States District Courts POVJ
to hear c .eeo urtde r the Act and to p ovidce injunctive relief. It also
for a Board en :inplcycc a ]%ir.:,trh to invcstxgate and, hear
:3 t.
cozn plaitxts chazgir; violation or threatened violation of the rfs.ct.
L i; aitec? e cccptiof to certain of he, bill's' provisions are e.Rtcnried to
'i'he Contra Into igence sL .cncy (CL ), tm3 National Security Agency
and `mac- 'eederai Bureau of Investigation (f I}.
The c ysarts2zeat of Defense is citpozed to the enactment of
S. 1035 in its present form. Set forth i.77 aediately below is a
sW:zarna?y of the principle: ?sbjeections.
1. The bill fails to c?i.::ttngzai sli between eli ibil ty for
t tsv't;y;IIY en ,.r2tIoymeat as fsti-ch, arid the' $pccial reoronsibilities
Of a national security nature entrusts-d to certain Departmental
pcrsonfel. The b- iiacar, of inhibit-in esl,,ionagc by careful
Approved For Release 2005/03/24: CIA-RDP81-00818R000100010002-1
 Approved For Release 2005/03/24: CIA-RDP81-00818R000100010002-1
sclcction of persons to be viven access to sensitive inforniation
is e,:tree ely difficult at beet. Viithout adequate information
concerning the background, affiliations, personal relationships,
mores, and financial and general integrity of persons considered
for such access, it may well be impossible. The cxernption of
inquiries made for the purpose of determining eligibility for
s. nsitive positions (rather than simply for general employment)
would seem the r.-Ani um necessary to preserve the integrity
of the oddnting security pro era .2s.
2. The bill fails to e :cmpt certain sensitive activities
of the Department of Defense from its provisions, despite the
fact that those activities b volvo access to classified defense
information of equal or greater import to national security than
positions in the agencies cited in section 6. The exemptions
granted to the CIA, NSA and 1'BI are based on a recognition
of the sensitivity of their Missions and, for the same reasons,
should he e:rteaded to the aforementioned activities of the
Department of Defense.
3. The provisions per -hitting civil actions to be filed
in the united States. Court vit? out claiming damages or
Approved For Release 2005/03/24: CIA-RDP81-00818R000100010002-1
 Approved For Release 2005/03/24: CIA-RDP81-00818R000100010002-1
e?: haustin ad,ninistra?ive remedies are disruptive tQ the
llp aztment's grievance: procedures and to employee-
;:nana.gcmcnt relationships. To permit disregard of the
juri ,elictional prerequisites to judicial review v*rould most
certainly encourage the filing of spurious suits and open the
door to broad and possibly organized harassment of executive
actions.
4. The provision authorizizxg the Board on Employees'
=tights to reprimand. suspend or remove civilian violators
is in derogation of the responsibilities of the employing agency
nd of the Civil Service Commission. Furthermore, the
Board's audlority to initiate court martial proceedings against
offending military supervisors is discriminatory, since penalties
involving fin or imprisonment may not be imposed on civilian
supervisors who violate the terms of the Act.
S. The f'fectiveness of the employee organization system
of r presentation established by E. 0. 10988 would be seriously
disrupted. Under section z,, an employee organization could
join in a court suit at the employee's request, even though the
organization does not represent the employees of that Defense
activity. Furtherinore. under section, 5 an employee organization
Approved For Release 2005/03/24: CIA-RDP81-00818R000100010002-1
 Approved For Release 2005/03/24: CIA-RDP81-00818R000100010002-1
could intervene in proccedin+,s before the Board on Employ~:es'
i).t if "in any degree [it is] concerned with employment
of the category in which any alleged violation of thie act occurred. "
In this instance, it could intervene even without regard to the
wishes of the complaining employee.
.r"Attached is a section by section analysis which elaborates
on the position of the Department summarized above.
The Bureau of the. Budget advises that, from the standpoint
of the Adrairi stration's Progrp-raj there is no objection to the pr Msenta..
tion of this report for the consideration of the Committee.
Approved For Release 2005/03/24: CIA-RDP81-00818R000100010002-1
 Approved For Release 2005/03/24: CIA-RDP81-00818R000100010002-1
SECTION BY SEC x IGs ANALYSIS
Scctioa 1(a) would prohibit, 'a:;ith certain exceptions, inquiries
about an GTyi'y,loyee's race., replica or rational origin or "hat of his
forebears. it i recon .mended that tine second prop.>iso beginning on
.an,e , line 8 bo amended to read, is part: ' rovided further, That
iothi 4 . contained in this subsection shall ba construed to prohibit
in~c,uiry ccncernin the national origin of any employee or Of any per on
tin C: ~.')~`aJTT11c ) , or the atio'ial oriG:'1i2 of any t}F2u^on co n ct d
e it aer by blood or z .a.rriage, -:, xen such inquiry is deem
eed necessary
or ad.vi.sa.biY (ex. ph,,sis added) 'ihe need for this authority is
cop cially important wThere an applicant or an cr .ployce ia. to he entrustted
v.?ith hi, hly sensitive ixzforrnatio ., or is to be assiCued to overseas areas
, Eaere coeercion might be brou-..at a ainst him or his close relati res.
Section t(b), fa protecting an ems loyee against conipulsory
att;: udance. at rrtc ?tins, forbid. taking notice of an employee' participa-
tio. in subvert;ivy; activities or -with other groups whose interests might
be hostile to United States interer t . ;weir a restriction is stron;ly
op:osed by the Department, and is contrary to.we11: accepted security
p rcctices. Accordingly, it is recommv ndeel twat a proviso be added to
.ection I(L) readinc as follows: 'Provided further, - That nothi'ag,
is Iris s?zbsecti.on shall be construed to prohibit takin notice o. the
Approved For Release 2005/03/24: CIA-RDP81-00818R000100010002-1
 Approved For Release 2005/03/24: CIA-RDP81-00818R000100010002-1
ticipatio 2 of arc employee in the activiti.s of organizationct, groups,
and movements deemed relevant to the national security. " This section
is a.1% -o objectionable because it appears to bar taking notice that an
L=r~3j loye e fa.ile:d to aatU-ncl ciecurity indoctxinettioa lcctarco. In -some
itistariccs, those: counseling, sea--ions would not relate. specifically to.
"the performance of his official dutics. of or emplc, the sessions
ire relate exclusively to an explanation of foreign intelligence opera-
tions, and zhow e anloyecs holdin- extrercly sensitive positions may
become tar ,etz7 of foreign espionage. Obviously, efforts to secure
attendance at such ses wiorts should not be pxejudic.d..,Accordingly,
s ctionn 1(b) should be further revised to meet this consideration.
e:ction 1(c) would prohibit recxvtiriug an e wtployee to participate
in activities unrelated to his official duties or to the development of
work ekills. It is assumed that the term "official cutieste is. to be
broadly construed and that it would not bar issuing Instruction a rid
guidance to p r-aons assigned to highly sensitive duties. For example,
-uch employees may be required to report security v-iolatiorteo attend
security indoctrination lectures, and report definite indications of
mntal instability and other unu zual behavior on the part of other
eyis,-ilarly assigned employees. With the understanding that these pro.
c?.utionary measures to safeguard highly sensitive information are
Approved For Release 2005/03/24: CIA-RDP81-00818R000100010002-1
 Approved For Release 2005/03/24: CIA-RDP81-00818R000100010002-1
3
art of the "official duties" of every such cn pioyce, the Department
cf Defense iitter::oses no objection to this section.
ciion 1(c} .would prohibit requiring or requesting an employee
to inake any report concerning his activities or unrlertakin s unless they
rc t to the perforn-iasace of his official duties, the development of hi
work skills, or them: is rca on to believe that he is engaged in outside
activities or employment in conflict with his official duties. The
par`rtraent rEcog nizE?.S that this provision was designed to eliminate certain im?: roper reporting practices, and in this respect we support
the princiJlc behind this provision. However, there are some instances
in ::rhich t:-,ere: is a good and sufficient cause for requiring such reports.
~'ox eexarnplc, it may be necessary to determine whether an employee
is v aged) in political activitie proscrib -d. by the }.latch Act. Obviously,
the best way to ascertain the facts is to as the employe for an
c cpianation. It is also it :portant that an employee assigned to sensitive
duties report any approach by known intellig n.cc agents, his planned
travel to conmrriunist-controlled countries, or his attendance at such
eetinns where representatives of such countries will he in attendance.
To make provision for theac special circumstances.,- it Is recomai-.:.nded
that a proviso be added at the end of page 3,. line reading substantially
Approved For Release 2005/03/24: CIA-RDP81-00818R000100010002-1 .
 Approved For Release 2005/03/24: CIA-RDP81-00818R000100010002-1
aw follows: "Provided, however, that nothing contained in this subsection
aizall be cot trued to prohibit reeixcstingg a rrpoxt when necessary for
la enforccr.ment purposes or when the cniployee is assigned to
activities or undertakings r