DEAR MR. LAPHAM:

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87B01034R000100070029-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 5
• Document Creation Date: December 20, 2016
• Document Release Date: April 16, 2007
• Sequence Number: 29
• Publication Date: March 8, 1978
• Content Type: LETTER

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FrUTY ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGAL COUNSEL
Pepurh ner of ht tic
Xmghizt tan, _(g. 2053U
March 8, 1978
Mr. Anthony A. Lapham
General Counsel
Central Intelligence Agency
Washington, D.C. 20505
Dear Mr. Lapham :
Pursuant to conversations between and
John Gavin of this office over the last several mont s,
we are forwarding to you our thoughts on the CIA's pro-
posed procedures regarding CIA investigations of United
States persons in the United States. This informal dis-
cussion does not represent our final conclusions on this
matter, but is meant to display our concerns and serve
as a basis for future discussion. With the signing of
Executive Order 12036.many of the issues touched upon by
these procedures will, as you know, become the subject
over the next few weeks and months of procedures promul-
gated under sections 2-206, 2-207, and 2-208 of that Order.
The questions to be considered in that process are among
the most difficult arising under the Order, and it is our
intent here not to foreclose deliberation on any of those
matters, but instead to give you the benefit of our pre-
liminary thinking. On this basis, we believe the follow-
ing issues raise problems in light of Weissman v. CIA,
565 F.2d 692 (D.C. Cir. 1977).
to Delineation of individuals subject to investigation.
In our view, the decision in Weissman did not preclude
entirely investigations by the CIA of those United States
persons who have a "connection" with the agency. Several
of the categories of individuals included in paragraph [1]
of your proposed procedures will have an obvious connection
STAT
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with the CIA, and we entertain little question about the
propriety of investigations in these cases. For example,
employees of the agency, those who are detailed to the
agency, those who apply for employment with the agency,
or those who expressly consent to an investigation (in-
cluding employees of contractors) would meet this criterion
rather easily.
However, the "connection" of other categories of
personnel listed in paragraph-[1] with the CIA is not so
clear. Our principal concern is with those individuals
who do not know that they are subject to a CIA investiga-
tion and who have no reason to believe that they may be
investigated. In particular, this would refer to employees
(or applicants for employment) of proprietaries and instru-
mentalities who are unaware of their employer's connection;
it would also include contractors' employees and others
who have no reason to believe that the CIA may investigate
them. Since these individuals have no such knowledge,
their "connection" with the CIA must rest solely on the
fact that they have become unwittingly involved in a situa-
tion where the CIA considers it necessary to subject them
to some form of investigation. We believe this raises two
different sorts of problems under Weissman. First, as we
stated in our September 1, 1977 letter, while-we do not
believe that the court made an individual's awareness of
an investigation an "invariable prerequisite" to an inquiry
by the CIA, the court was clearly troubled by an investi-
gation of an American citizen "without his knowledge" or
"security investigations of unwitting American citizens."
565 F.2d at 695, 696. In our view, this concern of the
court may not legitimately be entirely ignored. Second,
since the individuals here cannot be taken to have even
implicitly consented to a background investigation, the
requisite "connection" in such cases becomes more tenuous
than where-they were aware of, and consented to, such in-
vestigation.
We do not now believe that these problems under Weissman
will preclude investigations of such personnel entirely.
Rather, we wonder whether an approach along the lines
suggested in our previous opinion on this matter would
prove administratively workable -- i.e., gearing the ex-
tensiveness and intrusiveness of the contemplated investi-
gation to the degree that an individual has a "connection"
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with the CIA. More specifically, in cases in which an
individual's connection is limited, the CIA might promul-
gate more restrictive procedures than are applicable to
those that the CIA employs directly. The restrictions
which we have in mind would pertain to approval authority,
duration of investigation, methods of investigation, dis-
position of records, etc.
2. Purposes of investigation.
At present the proposed procedures do not state the
purposes for which an investigation may be conducted. While
we have no substantial objection to this open-ended approach
with respect to Agency employees and others close to the
Agency (provided that the purposes are lawful), we are
troubled by the application of this approach to those who
have less of a connection with the CIA. With respect to
such individuals, if the CIA is to justify an investigation
by reference to some limited "connection," we believe that
the regulations should clearly specify that the investiga-
tion will not go beyond whatever is required by reason of
that connection. Otherwise, it might be claimed that the
CIA is using a rather tenuous connection to justify an in-
vestigation serving other purposes. Such a departure from
the investigation's underlying justification may be an
abuse of that aspect of Weissman allowing an investigation
predicated upon a connection.
3. Method of investigation.
The proposed procedures do not now specify which methods
of investigation may be used, and we believe that it would
be necessary in light of Executive Order 12036 to delineate
explicitly what methods will be used. Perhaps more importantly,
paragraph [3] implies that physical surveillance may be
used in some instances. While the Executive Order itself
places limits on physical surveillance, additional limita-
tions may be necessary to fulfill the Attorney General's
responsibilities under section 3-305 of the Order. Weissman
suggests such limitations. For instance, the Executive
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Order allows for physical surveillance of present employees
of CIA contractors. If these individuals were unaware of
the possibility of a CIA inquiry into their lives, we question
whether their "connection" with the CIA would suffice to
justify the intrusiveness-of a physical surveillance.;;/
4. Paragraph [2]
The exception contained in paragraph [2] may be too
broadly written. The provisions of paragraph [2A] appear
to allow exactly the sort of investigation that occurred
in Weissman, except that it would be limited in duration
and subject to records disposal requirements. The pro-
visions of paragraph [2B) would allow for an exception in
all other areas, and hence provide for a way to avoid the
limitations of the proposed procedures entirely. Nothing
is said to set forth the conditions under which this may
occur or to impose restrictions on the use of this broad
that this provision could be modified~toVaonl stogeszea
certain sorts of personnel, the open-ended apply p nature only
approach would still trouble us. The application of this
approach to those with only tenuous connections with the
CIA may, for the reasons discussed above, cause problems
under Weissman.
5. Coordination with
We would suggest that more consideration be given how the proposed procedures are to fit in with
As the situation presently stands, the CIA wil nave two- -
different sets of procedures dealing with the problems
raised in Weissman. In our view, these two sets of pro-
?cedures are not now entirely consistent. For example,
^/ The special concern about physical surveillance is one
that was suggested by the Weissman court as we pointed
out in our earlier memorandum. See 565 F.2d at 696 n. 8.
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several provisions in the current regulations would appear
to allow for investigations beyond those contemplated in
your proposed procedures. See, e.g, (g)(4) STAT
and (6). In order to prevent possible con is s or con-
fusion, it may be advisable to promulgate one set of guide-
lines to cover this entire area. Presumably, this will
be done in formulating procedures under Executive Order
12036..
6. Records retention.
Paragraph [2A] states that records of those investi-
gated but not contacted will be disposed of in accordance
with General Records Schedules. Since we do not know what
these schedules provide for this type of information, we
cannot now comment on the efficacy of this provision. We
assume, however, that this question and others will be
included in the preparation of procedures under Executive
Order 12036 and, in that context, we would be pleased to
provide whatever additional assistance we can.
Sincerely,
Larry A.'J Hammond
Deputy Assistant Attorney General
Office of Legal Counsel
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