LETTER TO MICHAEL J. O'NEIL FROM STEVEN W. HERMES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000300380016-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 21, 2016
• Document Release Date: August 22, 2008
• Sequence Number: 16
• Publication Date: March 28, 1984
• Content Type: LETTER

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OLL 84-1245
28 March 1984
Mr. Michael J. O'Neil
Chief Counsel
Permanent Select Committee on Intelligence
House of Representatives
Washington, D.C. 20515
Enclosed are the Agency's suggested comments to your
proposed amendment to the revision of H.R. 4681 drafted by
Congresswoman Schroeder's staff. As indicated STAT
in your earlier conversation, we believe that your proposed
amendment is a vast improvement over the Civil Service
Subcommittee's revision. The Agency, however, has two
principal concerns with your proposed amendment.
Our first concern relates to the definition of "covered
employee" contained in your proposed amendment. Under the
present definition, a distinction is drawn between employees at
the Department of Defense (DOD), the Federal Bureau of
Investigation (FBI) and the Federal Emergency Management. Agency
(FEMA), and employees at other covered agencies. Any employee
at DOD, FBI or FEMA having access to either cryptographic or
special access program information is considered a covered
employee, whereas employees at other covered agencies are
considered covered employees only if they have access to
cryptographic information. Because the harm which may result
from unauthorized disclosure of either type of information is
identical, we do not see any reason to distinguish between
access to cryptographic or special access program information
in terms of requiring prepublication review or polygraph
examinations.
The second concern also relates to the definition of
covered employee, and the requirement that individuals must
have "regular and continuous" access to covered information to
qualify as such employees. In authorizing an individual access
to such information, an agency is, in effect, permitting an
employee to have regular and continuous access to such
information. It is difficult, if not impossible, for an agency
to anticipate whether an individual's access to information
will be regular and continuous once a clearance is granted in
most cases. Given this fact, and the requirement of
notification of covered employees contained in your proposed
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amendment, we believe that the implementation and possible
resulting litigation problems that would result in attempting
to delineate "regular and continuous" access are considerable.
We thus would suggest that the words "regular and continuous"
be deleted in defining the type of access which would qualify
individuals as covered employees.
Other suggested changes to your proposed amendment are
indicated directly on the draft enclosed herein.
With respect to the Civil Service Subcommittee's revision,
we had one suggestion with respect to the exemption which was
afforded the Agency, which we provided directly to Andy
Feinstein. The exemption in the Subcommittee revision was
limited to individuals employed by or detailed to the CIA, as
well as experts, consultants and applicants to this Agency.
Because the Agency distinguishes between detailees and
assignees, we felt that the exemption should specifically
include individuals who are "assigned to" the Agency.
Mr. Feinsten, in our conversation, agreed to amend the
exemption to accommodate this concern.
We very much appreciate the opportunity to comment on your
proposed amendment and will be happy to provide whatever
further assistance you may require in this matter.
Sincerely,
Chief, Legislation Division
Office of Legislative Liaison
DISTRIBUTION:
Original - Addressee
1 - OLL Chrono
- LEG File: Polygraphs
1 - LEG File: Prepublication Review
1 - ST,TH? Signer
1 - D/OLL
1 - DT)/OLL
1 - C/SECO1
1 - OS
1 - ALD
OGC
SWH: csh (28 March 1984)
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INSTRUCTIONS: Additions are bracketed; Deletions are lined-out.
"(A) the term 'covered agency' means the Department of
Defense, the Federal Bureau of Investigation, the Federal
Emergency Management Agency, and any other agency (other than
the Central Intelligence Agency or the National Security
Agency) which employs individuals in positions the pfiaafy
duties of which
technology- [require access to covered information;]
"(B) the term 'covered employee' --
"(i)
means an individual
employed by or [assigned or] detailed to ate[a covered]
agency, an individual applying for a position in the [a
covered] agency, and an expert or consultant under contract
with [a covered] the agency, who [is granted] has rogula-
and access to covered information as such an
employee (or, in the case of an individual applying for a
position, would -have[be granted] such access to covered
information in such position);--and
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sf s bparagrap~i--(C) (ii), an
"(C) the term 'covered information' means
^oitiv? classified information --
"(i) subject to a special access program established
[to protect intelligence sources and methods] in accordance
with the provisions of section 4.2(a) of Executive Order
12356, [or pursuant to predecessor authorities and] as in
effect on the effective date of the Federal Polygraph
Limitation and Anti-Censorship Act of 1984; or
(ii) concerning cryptographic communications or
technology.
"(2) Under regulations [prescribed] issued by the
Prs idan [the Director of Central Intelligence with respect
to covered information described in paragraph (C)(i) and the
Secretary of Defense with respect to covered information
described in paragraph (C)(ii)], the head of a covered agency
may-[is authorized to] impose the special security procedures
specified in paragraph (3) or (4), or both, with respect to a
covered employee of such covered agency. [Nothing in
section 7364 of this title shall create any civil liability for
the United States, any department or agency thereof, or any
officer or employee thereof in official or personal capacity
for implementing regulations promulgated under this paragraph.]
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"(3) (A) A covered agency may [is authorized], as a
condition for access to covered information, [to] require a
covered employee to enter into an agreement requiring the
individual to submit for prepublication review those portions
of any writings of such individual which [purport to contain
covered information or which] such individual
'= [knows certain covered information or has reason to
believe] might contain covered information. [The covered
agency is authorized to take any administrative steps and any
legal steps it deems appropriate to ensure employee execution
of compliance with such an agreement.]
"(B) Nothing in section 7363 of this title shall revert
as deseri-ho-d--n eubparagZaph [apply to a covered agency
implementing regulations promulgated under paragraph (b)(2).]
"(4) A covered agencymaw[is authorized], as a condition
for access to covered information, [to] require a covered
employee to submit to a polygraph examination, subject to the
following conditions:
"(A) The head of a covered agency may require a
covered employee to submit to a polygraph examination only
if the agency head deteEmines, in writing, [makes a written
determination, in his sole and unreviewable discretion,]
that such covered employee has (or, in the case of an
applicant, would have) access to covered information, the
unauthorized disclosure of which could reasonably be
expected to result directly in the loss of --
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(i) human life;
(ii) intelligence sources or methods which are
v-sta-l- [important] to the fulfillment of national
security requirements or which provide
[an essential] capacity to intelligence agencies
of the United States; or
(iii) technologies, plans, or procedures vital
[important] to the strategic advantage of the
United States.
"(B) A polygraph examination under this paragraph --
"(i) shall be limited to questions designed to
ascertain whether the covered employee has
oemmi t } Mends to commit
[acted, is
acting, or intends to act on behalf of a foreign
power; or the covered employee has disclosed or
intends to disclose classified information to
agents of a foreign power or other unauthorized
persons.] and
"(ii) may be administered only as provided in
section 7362(b)(2) of this title.
"(C)(i) A covered agency may not take or threaten to
take any action against a covered employee, or fail to
take or threaten to fail to take any action on behalf
of a covered employee, on the basis of any inference
or determination (referred to in section 7361(4) of
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this title) made from that individual's performance in
the course of a polygraph examination, unless the
appropriate agency head personally determin-
rpting [makes a written determination, in his sole
and unreviewable discretion] that a decision not to
carry out the measure concerned would pose an
unacceptable risk to national security.
"(ii) For purposes of clause (i), the term
'measure concerned' means the taking or
threatening to take an action against a covered
employee, or the failing to take or threatening
to fail to take an action on behalf of a covered
employee, as referred to in such clause.
"(5)(A) Before placing an individual in a position which
is subject to the special security procedures specified in
paragraph (3) or (4), or which the covered agency, with
reasonable certainty, anticipates will be made subject to such
procedures during the individual's expected tenure, such agency
shall --
"(i) provide written notice informing the individual --
"(I) of the fact that the position is subject to
those procedures, or
"(II) of the agency's intention to make the
position subject to those procedures (including
the anticipated effective date)
as the case may be; and
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"(ii) provide to such individual a copy of the
then-current regulations under paragraph (2) which
apply to such position, or which would apply to such
position if it were then so subject to those
procedures, as the case may be.
"(B)(i) Notwithstanding any other provision of law, the
failure of an individual described in clause (ii) to comply
with any of the special security procedures specified in
paragraph (3) or (4) may serve as the basis for denying or
withdrawing clearance for access to covered information for
purposes of any decision concerning separation, a reduction in
grade or pay, or other action against such individual, [unless
or until the individual receives notice under subparagraph
(a) (1) (II) . ]
"(ii) An individual shall be considered to be an
individual described in this clause if such individual --
"(I) is holding a position as of the date on which it
first becomes subject to any of the special security
procedures specified in paragraph (3) or (4); and
(II) was afforded no advance notice under
subparagraph (A)(i)II) with respect to such position.
"(6) The President shall submit to eeeteuseef the-
[the Senate Select Committee on Intelligence and the
House Permanent Select Committee on Intelligence] for each
calendar year beginning after the effective date of the Federal
Polygraph Limitation and Anti-Censorship Act of 1984 a
[classified] report which shall include --
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"(A) a list identifying each agency which was a
covered agency during any part of the year;
"(B) the number of covered employees within each such
agency during such year;
"(C) the number of covered employees, in the
aggregate and by agency, required to enter into an
agreement under paragraph (3) during such year;
"(D) the number of covered employees, in the
aggregate and by agency, subject to any agreement under
paragraph (3) during such year;
("E) the number of writings submitted during such
year in accordance with any agreement entered into under
paragraph (3); and
"(F) the number of covered employees, in the
aggregate and by agency, required to submit to a polygraph
examination under paragraph (4) during such year."
Page 9, in the matter after line 8 and before line 9,
strike out the item relating to section 7365 and insert in lieu
thereof the following:
"7365. Exceptions."
Page 9, strike out line 20 and all that followed thereafter
through page 10, line 2, and insert in lieu thereof the
following new subsection:
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(b) Nothing in subsection (a) applies with respect --
(1) to the Central Intelligence Agency or the
National Security Agency, or to any agreement which
requires prepublication review by either of those agencies;
(2) to --
(A) a covered agency, as defined in subsection
(b) of section 7365 of title 5, United States Code (as
added by this Act) with respect to any agreement which
requires prepublication review by such covered agency,
but only to the extent that such agreement would be
permitted under paragraph (3) of such subsection; or
(B) any such agreement, to such extent.
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