DOD PROPOSED REPORT ON H.R. 5866 THE FEDERAL POLYGRAPH LIMITATION AND ANTI-CENSORSHIP ACT OF 1984.

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000300390003-6
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 4
• Document Creation Date: December 21, 2016
• Document Release Date: August 28, 2008
• Sequence Number: 3
• Publication Date: June 20, 1984
• Content Type: MEMO

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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINdTON, D.C. uuos
June 20, 1984
LEGISLATIVE 1L I' ' 1
SPECIAL
TO: Legislative Liaison Officer
Department of Justice (Jack Perkins, 633-2113)
Central Intelligence Agency
National Security Council
SOB1TECTs DOD proposed report on H.R. 5866, the "Federal
Polygraph Limitation and Anti-Censorship Act of 1984."
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship to
the program of the President, in accordance with OMB Circular A-19.
A response to this request for your views is needed no later than
noon Thursday, June 21, 1984. Committee is marking up H.R. 5688
on Friday, 6/22.
Questions should be referred to Russell Neely
(395-4800 ) or to Hilda Schreiber
the legislative analyst in this office.
( 395-4650 )r
Naomi R. Sweeney for
Assistant Director for
Legislative Reference
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TO '.ilda Schreiber, OMB
FROn: W. Windus, DOD
Page 1 of 3
For Clearance b
Honorable Patricia Schroeder
Chairwoman, Subcommittee on Civil Service
CoazQittee on post office and Civil Service
U.S. House of Representatives l'
Washington, D. C. 20515 ~ r C b `S lT1
As you may recall, I appeared before the Subcommittee on 29 February 1984,
to provide testimony regarding a bill, H.R. 4681, proposed by Congressman
Jack Brooks, relating to use of the polygraph and prepublication review
agreements and indicated that the Department of Defense (DoD) opposed enactment
of the subject legislation on the basis that it would prevent the Department
from utilizing the polygraph and prepublication review agreements in ways in
which they have been and are successfully being employed, as well as preclude
any future use.
The Department has obtained and reviewed proposed legislation currently
being considered by the Subcommittee in this area, E.lt. 5866, and wishes to
advise that the position taken and comments made With respect to H.R. 4681
are also applicable to this particular legislation. To be more specific,
the polygraph is currently used in DoD for several purposes ndrrecognized by the
draft bill; first- to resolve derogatory information developed in a background
investigation that can't be resolved in any other way; second, to ensure that
intelligence sources are bona fide; third, for exculpatory purposes; and
fourth, for counterintelligence investigations where evidence of criminal
conduct may not be present.
Moreover, the bill would preclude any future use of the polygraph, regardless
of how limited, as a means of assessing civilian employees for access to highly
sensitive classified information. This would prevent Defense or any other agency
of the government from implementing the limited sort of program that Defense has
had under consideration for the last two years.
As you know, the Defense proposal would authorize use of a limited polygraph
examination comprised solely of questions to determine whether an individual
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is a spy for a hostile intelligence service prior to granting that individual
access to the most sensitive classified information held by the Department.
Under this concept, beads of Defense components, with the approval of my office
could, if they saw fit, establish this limited examination, excluding any questions
of a personal nature, as a condition of access to information protected within the
so-called special access programs authorized by Executive Order 11356.
Under the proposal, no action could be taken an the basis of a person's
reaction as reflected on the polygraph charts, unless additional investigation
produced derogatory information concerning the individual involved, which,
in and of itself, required action. Exeeptions to this rule would have to be
approved by the Secretary or Deputy Secretary of Defense or one of the three
Secretaries of the military departments.
Purthermore, refusals to take such examinations could not be the basis for
firing an employee. Any current employee who refused to take an examination
as a condition of obtaining access would either remain in the job or be placed
in a position of equal grade or pay within the Department.
Additionally, attention is invited to that fact that in developing the
proposal, every effort has been made to limit the effect of the proposed use
of the polygraph In terms of who may be subject to it, the kind of questions
that may be asked, and Its effect on a particular individual. In the latter
regard, we have provided as many safeguards for the entire process as we can
devise to ensure that our employees are treated fairly, and their rights and
privacy protected.
The fact that our adversaries efforts to penetrate the defense and
intelligence establishments continue unabated and, regrettably, have often been
successful, and the subsequent adverse effect on the United States and its
allies, cannot be ignored. Consequently, it is believed unwise to foreclose,
as H.R. 5866 would do, one available xeans of coping with this insidious threat.
With regard to prepublication-agreements, H.R. 5866 would have the effect
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of prohibiting the use of agreement with prepublication review requirements
except at NSA and CIA, and would rescind any such agreements other than those
already in effect. As indicated in my testimony on H.R. 4681, the existence
of a non-disclosure agreement or contract does provide the government with a
remedy, a civil cause of action, sanctioned by the Supreme Court in the Snepp
case, that it otherwise would not have. Moreover, the review process in effect
for some time at CIA and NSA has, in effect, succeeeded in preventing a considerable
amount of classified information from being exposed to the public. It is
believed, therefore, that the benefits justify the establishment of the
prepublication review requirement and the imposition of a lasting, albeit
limited, very limited, obligation on former employees who have had access to
extremely sensitive classified information.
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