LETTER TO HONORABLE CHARLES J. ZWICK FROM L. NIEDERLEHNER

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00818R000100020022-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 13
• Document Creation Date: December 16, 2016
• Document Release Date: March 1, 2005
• Sequence Number: 22
• Publication Date: May 28, 1968
• Content Type: LETTER

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GENERAL COUNSEL OF 1 -IE DEPARTMENT OF DEFENSE
WASHING ON, D. C. 20301
28 May 1968
Honorable Charles J. Zwick
Director, Bureau of the Budget
Washington, D. C. 20503
Reference is made to your request to the Secretary of Defense for the
views of the Department of Defe isc with respect to S. .1035, a bill
"To protect the civilian employees of the executive branch of the
United Sta~cs Government in the enjoyment of their constitutional
rights and to prevent unwarranted governmental invasion of their
privacy. "
The purpose of S. 1035 is to make it unlawful to require or request a
civilian employee, or person seeking employment in the executive
branch of the United States Government, to disclose his race, religion,
or national origin, or the race, religion, or national origin of any of his
forebears; attend meetings or to participate in activities unrelated to
the performance of his official duties; report outside activities or
employment unless there is reason to believe that these activities
conflict with his official duties; submit to questioning about his religion,
personal relationships or sexual attitudes through interviews, psy-
chological tests or polygraphs, support political candidates, or attend
political meetings; buy bonds or'other obligations issued by the United
States; disclose any items of his or his family's property or income
other than specific items tending to indicate a conflict of interest with
respect. to the performance of any of his official duties; or submit, when
he is under investigation for misconduct, to interrogation which could
lead to disciplinary action without the presence of requested counsel.
To provide enforcement powers, the bill vests jclrisdiction in the United
States District Courts to hear cases under the Act and to provide in-
junctive relief. It also provides for a Board on Employees' Rights to
investigate and hear complaints charging violation or threatened viola-
tion of the Act. Limited exceptions to certain of the bill's provisions
are extended to the Central Intelligence Agency (CIA), the National
Security Agency (NSA), and the Federal Bureau of Investigation (FBI).
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The Department of Defense is c4bposed to the enactment of S. 1035 in
its present form. Set forth imr_iediately below is a summary of the
principle objections.
1. The bill fails to distinguish between eligibility for
government employment as such, and the special responsibilities
of a national security nature entrusted to certain Departmental
personnel. The business of' inhibiting espionage by careful
selection of persons to k.e given access to sensitive information
is extremely difficult at best. Without 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 exemption of
ingt.iries made for the purpose of determining eligibility for
sensitive positions (rather than simply for general employment)
would seem the minimum necessary to preserve the integrity
of the existing security programs.
2. The bill fails to provide the Secretary of Defense
with authority to exempt- certain sensitive activities of the
Department from its provisions, despite the fact that those
activities involve access to classified defense information of
equal or greater import; to national security than positions in
the agencies cited in section 6. The exemption authority granted
to the CIA, NSA and FBI is based on a recognition of the sensi-
tivity of their missions and, for the same reasons, should be
extended to the Department of Defense when the Secretary
determines the national security so requires.
3. The provisions permitting civil actions to be filed
in the United States District Court without claiming damages
or exhausting administrative remedies are disruptive to the
Department's grievance procedures and to employee-management
relationships. To permit disregard of the jurisdictional pre-
requisites to judicial review would most ccrtainly encourage .he..
filing of spurious suds and open the door t.cu broad and possibly
organized harassment of etiecut.ive actions.
4. The provision authorizing the 13oarcl on Ei.iiployeesc
Rights to reprimand, suspend or remove civilian violators
is in derogation of the responsibilities of the employing agency
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and of the Civil Servic( Commission. Furthermore, the
Board's authority to in' ;fate court martial proceedings
against offending military supervisors is discriminatory,
since penalties involving fines or imprisonment may not
be imposed on civilian supervisors who violate the terms
of the Act.
5. The effectiveness of the employee organization
system of representati, n established by E. 0. 10988 would
be seriously disrupted. Under section 4, an employee
organization could join in a court suit at the employee's re-
quest, even though the organization does not represent the
employees of that Defense activity. Furthermore, under
section 5 an employee ''Organization could intervene in pro-
ceedings before the Bo, rd on Employees' Rights if "in any
degree it is] concerneL with employment of the category in
which any alleged violation of this act occurred. " In this
instance, it could intervene without regard to the wishes of
the complaining employee.
A more complete exposition of these points is set forth in the attached
"Section by Section Analysis. " The attachment includes recommended
language changes in the bill to meet the objections summarized above.
L. Niederlchncr
Acting General. Counsel
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Section 1(a) would prohibit, witi certain exceptions, inquiries about
an employees race, religion o national origin or that of his fore-
bears. It is recommended that the second proviso beginning on page 2,
line 8 be amended to read, in part: "Provided further, That nothing
contained in this subsection shall be construed to prohibit inquiring
concerning the national origin of any employee or of any person seeking
employment, or the national origin of any person connected. with either
by blood or marriage, when su,'ih inquiry is deemed necessary or
advisabley