S.1438- PROTECTION OF THE PRIVACY AND OTHER RIGHTS OF EXECUTIVE BRANCH EMPLOYEES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00818R000100050027-0
• Release Decision: RIFPUB
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• Document Page Count: 8
• Document Creation Date: December 16, 2016
• Document Release Date: August 1, 2005
• Sequence Number: 27
• Publication Date: May 18, 1972
• Content Type: OPEN

S 8092
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CONGRESSIONAL RECORD -SENATE May 18, 1972
have never done anything to us." I have
listened as political leaders commented
that "this shows you this country is in
trouble," and that "political assassina-
tion is becoming as American as apple
pie," and that our country "is in really
great danger when those-differing-
voices can't be heard."
This is an assessment of the situation
which might have been justifiable in the
heat of the moment when a public offi-
cial is killed and there is some evidence
that it might be a plot, It is an assess-
ment which no sound thinking person
should make today, even under stress,
unless he deliberately seeks to infect the
country with an unwarranted sense of
corporate guilt for political purposes.
For the truth of the matter is that the
previous assassinations have all been at
the hands of deranged individuals. As a
society we, bear no more guilt for their
acts than for the acts of Richard Speck
or the skyjackers, or any other unstable
individual whose own torment leads him
to acts of desperation.
I, too, believe we should continue to
search for ways to minimize the oppor-
tunity or incentive to commit such crimes
against our unheralded citizens as well
as our national leaders.
But we must keep our perspective. We
must remember our history: That an
assassination- attempt was made on An-
drew Jackson's life in the first quarter of
the 19th century; that in 1866 a Member
of Congress beat Senator Charles Sum-
ner senseless on the floor of the Senate
and crippled him for life; that a mad-
man killed President Lincoln in 1860;
that another madman assassinated
President Garfield in 1881 and still an-
other took the life of President McKinley
in 1901.
Eleven years later an assassination at-
tempt seriously wounded President Theo-
dore Roosevelt and others of his party
.while he campaigned for the presidency.
In 1935 an assassin took the life of Lou-
isiana Governor Huey P. Long. In 1954
there was a vicious attack on Members of
the House of Representatives, several of
whom were seriously wounded; and an
attempt was also made to assassinate
President Truman. Only 9 years sepa-
rated that attack from the killing of
President Kennedy, and no more than 25
years have separated any of the attacks
mentioned.
Further, I do not set this forth as an
exhaustive summary of such crimes or
attempted crimes against political fig-
ures. Hardly a presidential election has
gone by that some.-Private citizen has not
died in a quarrel over politics.
But we do not and must not attribute
these individual acts to a whole Nation.
If anything contributes to the atmos-
phere that causes such acts it is the poli-
tics of confrontation in times of severe
testing. If there is any lesson here, it is
for the press and politicians to use the
utmost discretion in inflaming passions
for political purposes.
C . 1438-PROTECTION OF THE PRI-
VACY AND OTHER RIGHTS OF EX-
ECUTIVE BRANCH EMPLOYEES
Mr. ERVIN. Mr, President, last De-
cember, the Senate by unanimous con-
sent gave its approval for the third time
to S. 1438, a bill to protect the constitu-
tional rights of executive branch employ-
ees and prohibit unwarranted govern-
mental invasion of their privacy.
The bill is now pending before the
House Post Office and Civil Service-Com-
mittee. That committee also has on its
agenda H.R. 11150, an amended version
of S. 1438 reported from the Employee
Benefits Subcommittee presided over by
Representative JAMES HANLEY. H.R. 11150
Is sponsored by Representatives HANLEY,
BRASCO, UDALL, CHARLES H. ' WILSON,
GALIFIANAKIS, MATSUNAGA, and MURPHY
of New York.
Since it was first introduced in 1966
in response to complaints raised during
the Kennedy and Johnson administra-
tions, the need for this bill has been self
evident to everyone but the White House
and some of those who do its political
bidding in the civil service.
Its bipartisan nature is obvious from
the fact that in three Congresses more
than 50 Senatofs cosponsored it, and an
overwhelming majority of the Senate ap-
proved it each time.
The history of the fight for enactment
of this legislation is set out in an illumi-
nating article written by Robert M. Foley
and Harold P. Coxson, Jr., in volume 19
of the American University Law Review.
Although the article discusses the bill as
S.. 782 in the 91st Congress, that version
was identical to S. 1438 as passed by the
Senate.
The authors have reservations about
certain inadequacies of the bill, which
I confess I share, but these are the re-
sults of compromises thought necessary
to obtain passage. They also believe the
bill does not go far enough in meeting
other serious due process problems often
encountered by individuals in their Fed-
eral employment. There are, I agree,
major omissions in the -statutory guaran-
tees of the constitutional rights of these
citizens and the authors define them
well. As a practical matter, however, one
piece of legislation cannot effect all of
these changes. I believe we must begin
with the passage of S. 1438.
I wish to offer the observation that a
great deal of careful legislative drafting
is reflected in the balance S. 1438
achieves between the first amendment
rights of individuals and the needs of
government as an employer. It is my
sincere hope that the balance so care-
fully developed over a 5-year period will
not be disturbed as the bill makes its way
toward passage.
The authors conclude their analysis
with these observations, which I com-
mend to the attention of Members of
'Congress interested In protecting the
right of privacy of all Americans:
There is no question of greater impor-
tance to a free society than that of defining
the right of privacy. This right is the most
important pillar of freedom. The framers
of the Constitution, with a keen awareness
of the case with which tyrannous power
can be used to erode freedom had this. right
clearly in mind as they wrote that citizens
should be "secure in their persons, houses,
papers, and effects, against unreasonable
searches and seizures .. In fact, the
heart of the Bill of.Rights is predicated upon
this right. In this light one must view the
governmental incursions into this consti-
tutionally protected area. To allow en-
croachments upon the right to privacy of
federal employees, within the framework of
free society may lead to an irrevocable dis-
integration of the right . to privacy for all.
The Court has been able to define some
areas where, privacy is protected, but this
is not enough. There is no definitive guide-
line for such an interpretive process. The
time is ripe for Congress to begin a com-
prehensive definition of this right, since
this process obviously cannot be achieved
entirely through the courts. The, guideline
must come from Congress, which is the only
government body charged with expressing
the common will of society. S. 782 appears
to be a good stepping stone.
Mr. President, I ask unanimous con-
sent that the article, entitled "A Bill to
Protect the Constitutional Right to Pri-
vacy of Federal Employees," be printed
in the RECORD.
There being no objection, the article
was ordered to be printed in the RECORD,
as follows:
[From the American University Law Review]
S. 782-A BILL To PROTECT THE CONSTITU-
TIONAL RIGHT TO PRIVACY OF FEDERAL EM-
PLOYEES
LEGISLATIVE HISTORY
A State which dwarfs its men, in order
that they may be more docile instruments in
its hands even for beneficial purposes--will
find that with small men no great thing can
really be accomplished...
Legislative attention has recently been
focused on the unwarranted invasions of
privacy and restrictions on liberty perpe-
trated by the Federal Government against
its nearly three million civilian employees.
S. 782,2 recently proposed in the 91st Con-
gress, addresses the question posed by the
philosopher John Stuart Mill a little over a
century ago: What are the limits of legiti-
mate interference with individual liberty? E
Today, expanding federal activities and in-
creasing reliance on technological innova-
tions have extended the traditional limits to
the point that further interference 'will ren-
der "individual liberty" a hollow phrase.
Although occasional encroachments on tra-
ditional areas of liberty and privacy might
be justified by the overriding interests of
society,4 there is a need to periodically re-
examine the extent to which such encroach-
ments will be sanctioned. "There is once
again serious reason to suggest that the law
must expand its protection if man's tradi-
tional freedoms are to be preserved.""
S. 782 is a legislative atempt to protect
federal employees from specific violations of
their constitutional rights 6 and to provide
a statutory basis for the redress of such vio-
lations.7 The major emphasis of the bill is
the protection of federal employees from
unwarranted invasions of privacy by gov-
ernment officials. This article will demon-
strate the need for S. 782, analyze its pro-
visions, and measure its effectiveness.
For the past five congressional sessions,
violations of federal employee rights have
been the subject of "intensive hearings and
investigation" by the Subcommittee on Con-
stitutional Rights of the Senate Judiciary
Committee' As a result of numerous com-
plaints from civil servants ,g the Subcommit-
tee initiated legisiataive hearings in June,
1965, on "Psychological Tests and Constitu-
tional Rights," 10 Following these hearings,
the Chairman of the Subcommittee, Senator
Sam J. Ervin, Jr. (D.-N.C.), wrote to then-
President Lyndon B. Johnson:
"The invasions of privacy have now reached
such alarming proportions and are assuming
such varied forms that the matter now de-
mands your immediate and personal atten-
tion." U
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May 18, 1972 CONGRESSIONAL RECORD - SENT k.TE
But instead this impounded disaster now
makes it possible to release 10,000 to 15,000
cubic feet a second more at Gavins Point on
the Nebraska-South Dakota state line than
in the early 1960a when the huge lakes were
still filling. It is difficult now to recall the
sharp disputes of those years between the
various water interests over priorities. Now
there is plenty for all, especially with a
mountain snowpack still largely in place at
130 per cent of normal depth.
These big Pick-Sloan lakes cost several
hundreds of millions f dollars. But they are
returning that inves ent lavishly-to say
nothing of the outdoor recreation they pro-
vide for millions of viAltors. They will be
there to do the flood-stopNng job next year
or whenever these same ootxtitions develop.
As one backer of these much-th signed "pork
barrel" river projects asserted, MtXf this is
pork, I'll take another helping." -.
INAUGURATION OF GENERALIS-
SIMO CHIANG KAI-SHEK FOR'
FIFTH TERM AS PRESIDENT OF
REPUBLIC OF CHINA
Mr. DOMINICK. Mr. President, on
May 20, Generalissimo Chiang Kai-shek
will be inaugurated to his fifth term as
President of the Republic of China. Over
the years, Chiang has brought the island
of Taiwan tremendous peace, growth,
and prosperity-progress rivaled by few
in the developing nations of the world.
The past year has been a turbulent
and confusing one for the Republic of
China. Many changes, including expul-
sion from the United Nations, have
caused some fears and doubts in the
minds of the people of Taiwan as to just
what the United States commitment to
their country will be in years to come.
I have reiterated my strong support
and admiration for the people of Taiwan
many times in the last few months, and I
am sure that all Senators join me in ex-
pressing once again our greatest friend-
ship and admiration for the people of the
Republic of China and their President on
the occasion of his inauguration.
UPPER COLORADO RIVER BASIN
AUTHORIZATION
Mr. MOSS. Mr. President, on May 10,
the senior Senator from Wisconsin (Mr.
PaoxMntE) commented on the passage of
H.R. 13435, a bill to increase the author-
ization for appropriations for continuing
work in the Upper Colorado River Basin
by the Secretary of the Interior.
The purpose of the bill was to provide
sufficient funds to completethe construe-,
tion of the Upper Colorado River Basi
project which was authorized to be con-
structed by the act of April 11, 1956 ('70
Stat. 105). The original authorization
provided $760 million for the work,' in-
eluding the major storage reseptoirs
which now control the widely varying
flows of the Colorado River and several
water supply projects as well which
utilize a part of the water made available
by the storage.
The Senator from WisconQAi stated
that the Senate Committee 6n interior
and Insular Affairs held no hearings on
this measure. I wish to inform the Senate
that while the Senator is correct that the
committee held no hearings on H.R.
13435, this bill was not pending before
the Senate at that time. But the Sub-
committee on Water and Power Re-
sources held a hearing on April 12, on
S. 3287 and S. 3283, Senate companion
bills which were identical to H.R.:13435
as introduced.
I wish to assure Senators that the im-
plication that insufficient study was
given to this legislation is particularly
unwarranted. The Interior Committees
of both Houses have had close and con-
tinuing associations with the Upper
Colorado River Basin project since the
exhaustive consideration given to it be-
fore it was authorized in 1956. 'Chere
have since been a number of additional
participating projects considered for
either study of construction, each involy-
ing a review of the financial and eco-
nomic status of the storage project, and,
of course, the whole matter was rev.ew8d
in great depth when the Congress was
considering the Colorado River 3asin
Project Act of 1968 (82 Stat. 885).
The authorizing act of 1956 (70 Stat.
105)`qequires the Secretary of the In
tenor 'IQ report to the Congress anr. uall
on the \tatus of the Colorado R$#er
storage p ject and participating Idroj-
ects. The 1 th of these annual ports
was transmi d to the Presiden c?f the
Senate on Dec ber 28, 1917, and Is, of
course, available to any intergsted Sen-
ator. I am sure m , colleagues will find it
to be a comprehen4ve anc''detailed ac-
counting of the financial jkspeets c-f the
project as well as a stdtement of the
diverse and impressive ._ neflts which the
project already is provi g to ou:- Na-
tion. I am pleased to r ort that the
project already ha,5'return more than
$20 million to the Treasu although
many of the revofiue produci features
are still under =construction. ore-over,
construction fufids for storage a jiower
production is:fepaid with interes to the
U.B. Treasurj. These funds are a p ldent
investment;' not a nonrecoverabii ex-
penditure.
Furtheflnore, the Colorado Rive.- B--
on t Colorado River system. My col-
leases will find that the report fcr the
1971 operations and 1972-projected op
er tions is an informative document in-
clAding discussions of river regulation,
v/ater use, and environmental mea 3ures,
among other items, on a reservoir-by-
reservoir basis. -
The Interior Committee, therefore,
came to the consideration of H.R. 13435
and its companion bills with conrdder-
able current knowledge of the situation
and insights into the significant i3sues.
I am sure that Senators will agree: that
the value of legislative hearings are not
always measured by their length.
The Senator from Wisconsin also
made quite a point of the fact that there
was no new benefits to cost analy~ais of
each of the projects in the report oa the
bill. Of course there was not. The i easi
bility of each of the projects was care-
fully evaluated when the projects were
originally authorized in 1956. It a an
unpardonable delay that they are still
waiting to be built-some 16 years after
authorization. We should get on with
the job.
S 8091 -
NEED FOR STRONG EXPORT ARM
IN MARKETS OF THE WORLD
Mr. TOWER. Mr. President, I am
pleased that the Senate has taken action
to delete from S. 3526, the Foreign Rela-
tions Authorization Act of 1972, the pro-
vision which would have reduced over-
seas personnel of the Department of
Agriculture. -
Agricultural exports were worth more
than half a billion' dollars-$553.9 mil-
lion-to Texas fariners and ranchers last
fiscal year, and that is important to them
and also to the merchants, the imple-
ment dealer A' and to others in the Main
Street ecomies of the Lone Star State.
Those,exports are important, too, to
the po of Texas, which are part of the
gulf mplex through which the bulk of
our ,exports of corn and soybeans move.
We have much to gain from a vigorous
aid expanding agricultural-export posi-
tion. Right now, we are working to recoup
the losses to Texas in agricultural ex-
ports and shipping revenues suffered in
the dock strike of last October and No-
vember.
We need a strong export arm in the
markets of the world, and that is what
the Department of Agriculture is pro-
viding. For these reasons, I commend the
Senate - for the adoption of the amend-
ment of the Senator from Oklahoma
(Mr. BELLMON).
CRIMES OF VIOLENCE AGAINST
POLI'TICAL, FIGURES
Mr. CURTIS. Mr. President, I am deep-
ly shocked and grieved, as I know every
American citizen of good will Is shocked
and grieved, at the horrible crime of
violence committed last Monday against
Governor Wallace. My prayers have been
and continue to be with Governor Wal-
lace, his family, his doctors, and the
others who were wounded in this sense-
less attack. I earnestly pray for the Gov-
ernor's full recovery. -
I feel it is equally important to add
that my prayers go out for the soul of
the young man who perpetrated this
deed. It was the act of an individual
who must face the consequences. That
I 'am deeply concerned over the tendency
to attribute to the act, as to the horrible
kilgs of. President Kennedy, Senator
Ro rt Kennedy, and Dr. Martin Luther
Kink, some national disease or sickness
in w' ich we all share guilt and are made
to feel as if we are participants In the
crime.
I ann as horrified as anyone could be
that such an act of violence can happen
here. I elm aware, too, that attacks on
our political leaders seem to be hap-
pening with increasing frequency.
I do not believe it In any way mini-
mizes the tragedy of this event to paint
out that it is not a new phenomenon,
and, given the increased population, mo-
bility, and physical access to political
leaders, even the increasing frequency of
such incidents is not necessarily a symp-
tom of sickness in our society.
I have listened to newsmen link this
event to our "senseless and unjustifiable
killings of people in another country who
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May 18, 197,2 CONGRESSIONAL RIECORD - sENA
On August 9, 1966, Senator Ervin Intro-
duced S. 3703; ' a bill "to protect the em-
ployees of the executive branch of the United
States Government in the enjoyment of their
constitutional rights and to prevent unwar-
ranted invasions of their privacy." 16 On Au-
gust 26, 1966, Senator Ervin introduced S.
3779,14 a bill similar in intent to S. 3703 but
differing in the provision of penalties16 Both
S. 3703 and S. 3779 were sent to the Senate
Judiciary Committee and then referred to
the Subcommittee on Constitutional Rights.
As a result of the Subcommittee hearings,
amendments to S. 3779 were proposed to meet
"legitimate objections to the scope and lan-
guage raised by administrative witnesses and
to clarify the intent of its cosponsors. " 16
The most notable amendment to S. 3779 re-
sulted from Professor Alan F. Westlin's pro-
posal for a Board. on Employees' Rights 17
Professor Westin commented:
"A new agency ought to be set up within
the executive branch, along the lines of what
is generally called the ombudsman principle,
which would be empowered to receive em-
ployee complaints, to hold hearings, and de-
termine whether the Federal right to privacy
for employees against unreasonable intru-
sions has been invaded without justification,
or without proper cause.... It is a mistake to
see this function as one which the Civil Serv-
ice Commission either can or should perform.
I think it calls for an independent agency"?6
On February 21, 1967, Senator Ervin intro-
duced S. 1035,10 an amended version of S.
3779. The bill was referred to the Senate
Judiciary Committee and, on September 13,
1967, it passed the Senate by a vote of 79-4.20
On June 13, 1968, exactly nine months after
passage by the Senate, hearings on S. 1035
(and H.R. 17760) 21 were begun in the House
Subcommittee on Manpower and Civil Serv-
ice" where S. 1035 died.= On January 21,
1969 a bill encompassing the same provi-
sions as S. 7035 was introduced in the Sen-
ate as S. 782.13 In Introducing this bill, Sen-
ator Ervin noted that:
"On reflection, however, it may be that
concerted opposition to the bill IS. 10351
mounted by the federal agencies and depart-
ments is only one more example of the ef-
fective and smooth cooperation which gov-
ernment agencies can demonstrate when the
occasion demands. As they viewed it, I sup-
pose impending enactment of S. 1035 was
such an occasion" ... ?6
S. 782 was referred to the Senate Subcom-
mittee on Constitutional Rights, and on
July 22, 1969, the Subcommittee met in
executive session to receive the testimony
from Richard Helms, Director of the Central
Intelligence Agency (CIA) 20 On the basis of
his testimony, and after a number of meet-
ings with officials of the National Security
Agency (NSA) and the Federal Bureau of
Investigation (FBI), committee amendments
were drafted to meet the approval of the Di-
rectors of those agencies .27 On May 15, 1970,
S. 782 was approved unanimously by the Sen-
ate Judiciary Committee,28 and on May 19,
1970, the Senate passed the bill viva voce .w
On May 20, 1970, S. 782 was sent to the
House Post Office and Civil Service Commit-
tee and referred to the Subcommittee On
Manpower and Civil Service,31 where the bill
is now pending. Senator Ervin predicted that
"although the bill IS. 10351 died in a House
Post Office and Civil Service Subcommittee
in the last Congress, I believe prospects are
much brighter for passage [of. S. 782] this
year.,, n
The need to protect federal employees from
unwarranted invasions of their privacy was
amply documented throughout the legislative
history of S. 782. Several blatant examples of
privacy-invading techniques follow.
. The example most frequently cited during
the hearings was the salacious interrogation
of an eighteen year-old college sophomore
co-ed, applying for a summer job as a secre-
tary at a federal agency. She was asked inti-
mate questions regarding her personal rela-
tionship with a boy whom she was dating. A
few illustrative questions should suffice: "Did
he abuse you?", Did he do anything unnat-
ural with you?", "You didn't get pregnant,
did you?" 82 Of course, one can see the rele-
vance of such questions to secretarial skills,
A second and more subtle means of in-
vading privacy is demonstrtaed by the use of
psychological examinations, personality in-
ventories, and even polygraph tests. Perhaps
a legitimate argument might be advanced
that such precautions are necessary for jobs
involving national security. However, these
mind probing techniques often require em-
ployees to answer intimate questions relat-
ing to sex, religion, family relationships, or
personal beliefs having little to do with
national security.
The Minnesota Multiphasic Personality In-
ventory (MMPI) is one of the tests frequently
utilized by government agencies. The test
contains 566 true/false questions which must
be answered, "quickly and without thinking
or deliberating." 38 Examples of these ques-
tions are :
(20) My sex life is satisfactory.
(58) Everything is turning out just like the
prophets in the Bible said it would.
(95) I go to church almost every week.
(115) I believe in a life hereafter.
(177) My mother was a good woman.
(216) There is very little love and com-
panionship in my family as compared to
other homes.
(258) I believe there is a God.
(320) Many of my dreams are about sex
matters.
(387) I have difficulty holding my urine.
(519) There is something wrong with my
sex organs.94
Martin L. Gross, author of a study on
psychological testing," testified before the
Senate Subcommittee on Constitutional
Rights that there has never been a validated
psychological test, nor a single statistically
significant experiment indicating that a per-
sonality test predicted emotional behavior?6
To make matters worse, the agencies have
used these invalid tests improperly. The use
of untrained personnel and the random se-
lection of questions removed from their test
context, have destroyed even the reliability
of the tests. Yet despite this, and the inva-
sion of privacy inherent in such tests, the
agencies continue to use them with little
reservation.8'
The disclosure of family financial affairs
is another serious intrusion into the right
to privacy. Pursuant to Executive Order No.
11222,-`8 the Civil Service Commission im-
plemented a questionnaire requiring periodic
disclosure of the personal finances of federal
employees and their immediate families. The
purpose of this questionnaire is to prevent
conflicts of interest among the upper echelon
employees of the federal government. How-
ever, section 402 36 of the Executive Order
provides that other employees may be re-
quired to file similar disclosures. Obviously
this requirement is ineffectual in disclosing
the unethical employee, since it would not
be difficult for him to falsify the question-
naire in order to conceal a conflict of interest.
Yet, for the overwhelming majority of ethical
employees, the requirement is a particularly
objectionable invasion of privacy. As Sen-
ator Ervin commented:
"[T]his policy amounts to a demand that
the employee, on pain of losing his job, prove
every few months that he and members of
his family are not violating or even appearing
to violate federal laws. To my mind, this
questionnaire constitutes a colossal vote of
no-confidence." . . w
One of the most clandestine intrusions
into the area of individual privacy and one
of the hardest to legislate against, is the
subtle coercion of employees to follow the
S 8093
whims. and desires of supervisory personnel.
These include the solicitation for charities,
contributions to favorite funds, involvement
in savings bond programs and attendance
at unrelated meetings, activities, and the
like. An individual employee could hardly
be expected to refuse such "requests" by his
supervisor, when the same supervisor will
determine his qualifications for promotion .a
Of particular concern in the current pe-
riod of political activism is the denial of
federal employment to those persons who
have engaged in demonstrations and protests.
Although intended to meet legitimtae objec-
tions to the abuses of the political process,
in a reactionary period, such stringent pro-
hibitions may also serve to stifle individual
initiative and involvement in an area having
little to do with one's employment with the
federal government. These sanctions might
be invoked merely because the propriety of
such involvement is questioned. As Senator
Ervin has commented, "it is essential to as-
sure that any denial of a security clearance
or of a federal job is rendered on equitable,
just, and timely standards of social be-
havior." 12
S. 782 is a legislative attempt to remedy
these and other practices which are eroding
the traditional pillars of freedom today. Ob-
viously, passage of the bill will not eliminate
"all the ills besetting the federal service, all
of the invasions of privacy," 46 nor all of the
isolated incidents of coercion and intimida-
tion. As Senator Ervin has commented: "We
cannot legislate against all manner of fools
or their follies." 44 But, as an analysis of the
bill will demonstrate, S. 782 is an attempt
to provide basic standards for governing
the individual rights of those under federal
employment.
S. 782
The Act encompasses four major provi-
sions which include: government officials
who are forbidden to pursue certain activ-
ities, the four classes of prohibited activities
themselves, judicial remedies for violation of
the Act, and several protective or balancing
clauses.
There are three classes of government of-
ficials against whom S. 782 is directed. Sec-
tion 1 provides that "[a]ny officer of an
executive department or executive agency .. .
or any person purporting to act under his
authority . . ." 46 is prohibited from partici-
pating in certain enumerated activities. Sec-
tion 3 provides that "[a]ny commissioned
officer ... or any member of the Armed Forces
acting or purporting to act under his au-
thority . . ." 46 is prohibited from engaging
in the same activities as prescribed in sec-
tion 1. And section 2 provides that "[a]ny
officer of the United States Civil Service Com-
mission, or any person purporting to act un-
der his authority . . ." n is prohibited from
performing certain of the selected activities
forbidden to the above two classes of per-
sonnel.
The Act contemplates a number of activ-
ities which are considered in violation of
the individual's basic right to privacy. Among
these activities are the following, which are
specifically denied to the first two classes of
supervisory personnel:
RACE, RELIGION, AND NATIONAL ORIGIN-
SECTION 1 (A)
It is unlawful to require by any manner
"[a]ny civilian48 employee . . in execu-
tive branch ... to disclose his race, religion,
or national origin, ... or [that] of his fore-
bearers." 46 However, inquiry into national
origin is not prohibited where this factor
may adversely affect national security.b3 Such
inquiry is only permitted in cases where -it
is a statutory prerequisite for employment
or job assignment.
NON-JOB RELATED ACTIVITIES SECTION
I (B), (C), (D), (0), & (H)
Executive department officer are prohib-
ited from informing or intimating to em-
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CONGRESSIONAL RECORD -SENATE May 18, 19 72
ployees that notice will be taken of their at-
tendance or nonattendance at any non-job
related meeting or any other outside activ-
ities. Furthermore, an employee may not be
required tomake a report on activities which
are unrelated to his job, unless there is "ref.
son to believe ... [that the activities are] in
conflict with his official duties."" "Exception
to this injunction is made for meetings which
provide for the development of skills qualify-
ing an employee for the performance of his
job." 52
In addition, it is unlawful to coerce an
employee to invest in government bonds or
securities or to make donations to charitable
causes. However, it is appropriate that super-
visory personnel call meetings or take other
actions which afford the employee the op-
portunity to participate in the aforemen-
tioned activities.
Finally, by a provision similar to the Hatch
Act,M executive officers are forbidden in any
way to require their employees to participate
or not participate in political activities 56
INVESTIGATION INTO PERSONAL AND FAMILY
MATTER-SECTION 1 (C),(f),(1) AND (j)
It is unlawful to elicit from an employee or
applicant information concerning: personal
relations with his spouse or blood relatives;
religious beliefs or practices, and attitudes or
conduct concerning sexual matters w via any
of the following techniques; interrogation,
examination, psychological testing,--,7 or poly-
graph testing." This prohibtion is made with
the following provisos: (1) that the clause
will not be "construed to prevent a physi-
cian ... from authorizing such tests in the
diagnosis or treatment of any civilian em-
ployee or applicant ... where such informa-
tion [is] necessary ... to determine [if that]
... Individual is suffering from mental ill-
ness;" bs (2) that such treatment is "not
pursuant to general practices or regulations
governing" 0? a class of individuals; and (3)
that nothing contained in the clauses will
be "construed to prohibit ..`. advising ...
(the] employee of specific charges of sexual
misconduct made against [himi...... e1
Furthermore, it is unlawful to require an
employee or prospective employee to disclose
family financial matters. However, the em-
ployee will not be freed, as a result of these
prohibitions, from making the usual dis-
closures to the appropriate governmental de-
partment or agency of such records as tariffs,
taxes, customs duties, and other lawful obli-
gations.?' In addition, disclosures may be re-
quired of an employee who, in his job ca-
pacity, has the power of final determination
of tax or other liability of any person or
legal entity, or who may have a conflict of
interest between his personal financial deal-
ings and the performance of his official
d uties e
OTHER PROTECTIONS-SECTION 1(k) & (1)
The third class of supervisory personnel,
officers of the Civil Service Commission, is
enjoined from requiring any executive de-
partment official to violate the provisions of
section 1. Requiring civilian employees or
applicants to disclose, by any of the above
mentioned methods, any of the information
enumerated in sections 1(e) and (t), is un-
lawful.
The Act further provides that an employee
should not have to present his case without
aid .14 To implement this protection, any per-
son under interrogation for misconduct which
could lead to disciplinary action is permitted
the presence of counsel or another repre-
sentative of his choice at such inquisitions
However, the foregoing right is severely cur-
tailed in the case of the NSA and CIA.
Counsel or representative must either be an
employee of the agency or must be given se-
curity clearance for access to available in-
formation. To protect an employee who files
a complaint, the Act makes it unlawful to
discriminate In any way against at empk;
who refuses to submit to the demands or
other actions of his superior which are m:. e
illegal by this bill, or for exercising any rl t
granted by it.
One of the primary rights granted by 7l' e
Act is the ability to seek judicial as well! Ls
administrative remedies. Standing to sue: )r
file a grievance action with the Board on E. =i-
ployees' Rights,"? (hereinafter desigli)t`~,.d
"the Board"), is provided by the Act for: a-y
person with a personal complaint, fny per' a
representing a class of aggrieved employ: s,
or any employee organized on behalf of -'s
membership,68 for any activity mute llle;;:::ti
by this bill.
Sections 4 and 5 afford two I Drums 'n
which remedial action may be taken, bt"h
of which are given primary jurisliction o
hear the complaint. The first is the Bov.aaf
which is nonpartisan, separate from the Ci ril
Service Commission, and norigov,arnmeri?'.41
in its composition. It is endowed with t,re
power to issue: administrative :srnctio7;
cease and desist orders; arbitration procee,.i-
ings; recommendations for gener.tl courr
martial, where appropriate; and ilk the
of a federal appointee, a report to the =-
gress and the President.0 For purposes .,f
judicial review, decisions emanating from +
Board are to be considered final. 514o magi!
which route is chosen, judicial review is: t,
gun at the U.S. District Court level?"
The second path is to file a suit seek:
diciary,m (2) what are the major loopholes
and legislative omissions, and (3) how does
the Act relate to the whole issue of privacy
in our society today?
As measured against the avowed purpose,
the Act fares only moderately well. The pur-
pose of the Act in general, is to extend to all
civilian employees of the United States Gov-
ernment the basic constitutional right to in-
dividual privacy which has been infringed
upon by government officers with alarming
frequency. Specifically, the legislation is de-
signed to meet three exigencies: (1) to es-
tablish 'a statutory basis for protecting cer-
tain rights and liberties of government em-
ployees, meeting not only present but also
future needs; (2) the need to attract the best
qualified employees for federal service; and
(3) to set an example for state and local
government and private industry.n
In providing immediate statutory relief,
this Act makes a major contribution in ful-
filling the present needs of federal employees
and applicants. Previously, there was no way
by which an employee couldgain standing
to sue except at the discretion of a govern-
ment grievance committee. The established
grievance, procedures carry any complaint
regarding invasion of the right of privacy
down a bureaucratic cul-de-sac. The em-
ployee would file his complaint, which in
turn would be passed through the channels
to the grievance committee. The grievance
committee in turn would return such com-
plaint to the employee's superior for refuta-
tion of the allegations, wherein the com-
plaint would die. The provisions of this Act
allow the employee the opportunity to di-
rectly test through adversary proceedings,
either in open court or in a quasi-judicial
hearing, the constitutionality of some rather
questionable government practices .a En-
dorsement of the bill is widespread among
employee organizations, attesting to the fact
that the Act apparently meets present needs
for statutory protection.
One consideration relevant to the ability
of the bill to meet future needs is the grow-
ing size of governmental involvement in the
business of the country. In many instances
the government requires the same kind of
security precaution3for industry's employees
as it does for its own, and national security
frequently requires legitimate curtailment
of an individual's constitutional rights. As
governmental operations affect more and
more lives in this manner, extension of leg-
islative protection seems inevitable. Increas-
ingly closer scrutiny will have to be paid to
the balancing of individual rights against the
necessities of society. Two prominent jurists
sounded the warning eighty years ago:
"[f]rom time to time society must redefine
the exact nature of the right of privacy ac-
cording to political, social, and economic
changes . [recognizing] new rights if es-
tablished freedom is to be maintained." A'
It is hoped that this bill will be but a step
in a continually evolving process.
The second function of the bill, the attrac-
tion and retention of career federal em-
ployees, is difficult to assess by objective
criteria. Although it is possible that some
highly qualified applicants refuse federal
employment because of the various screening
procedures employed by many agencies and
departments, it seems more likely that the
vast number of people seeking employment
with the executive branch of the government
are unconcerned by the invasions of privacy
at the initial interviews for their new jobs.
The reason is simple; such practices are fre-
quently utilized by private industry. How-
ever, raising the issue of initial refusal of
federal service begs the question. There are
far more compelling reasons for rejecting
federal employment, such as low initial salary
and lack of adequate career advancement
opportunities, which must be considered be-
fore the issue of invasion of privacy can be
reached- To the Government, retention of
civil damages, before the appropriate Unit-d
States District Courtn The Act obviates t~e
necessity of first exhausting other admit:)
trative remedies before filing a ;omplai t
with the Board or the courts.
The forum chosen for the initial act! n
must be elected prior to commenueement 'f
the proceedings, since the respective pat'-s
are mutually exclusive= The civil court re-c. Ile
seems the most attractive, since it affor- s
damages as one type of remedy. Howes^::
there are three critical factors whic'i mays, r; -
courage complainants to proceed via t' =e
Board: delay because of overloaded court
calendars,73 the expense of courtroom Iiti,s -
tion, and the fact that section 5(m) allo ,-s
civil action review of Board decisions in`c! I " e
United States District Court, the court f
original jurisdiction for civil actio:ls.
There are two clauses balancing individd
against societal rights. The first Elves )32a:-
stantive protection to the employees' rig .t
to litigate an alleged invasion of privacy'
The second balances the right of sot fetal te> !'-
preservation against the individual a right
privacy by insuring that investigative age! -
cies will retain the ability to ferret out a-:-
ments which may be subverting societ;(
Section 5(h) protects the complainant a.3A
any necessary witnesses against sconce:
coercion. It provides that all employees slo)
appear before the Board will beconlpensa'- l
for the work time lost and will be remunt.
ated for any additional expenses results:;
from such appearance. In addition all e7rr-
ployees appearing will be "free from restrain,
coercion, interference, or reprisal to or Is
cause of their participation." 7"
Section 6, at the request of Senator Bay%
and Senator Young,A preserves the :nvestl~,,,-
Live prerogatives of the three majo' securi r
agencies. By negative implication, my diva= -
tor or employee designated by the direcs' r
of the CIA or NSA, is permitted 1 o puft:; ze
activities forbidden other executive o>ne