LETTER(Sanitized)FROM DAVID A. BARRETT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R000800050032-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 15, 2016
• Document Release Date: August 11, 2004
• Sequence Number: 32
• Publication Date: February 15, 1978
• Content Type: LETTER

ASSISTANT ATTORNEY GENERAL
LEGISLATIVE A pprsoved For Rele a 2004/08/19: M00980R0008non
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February 15, 1978
STAT
ottice ot Legislative Counsel.
Central Intelligence Agency
Washington, D. C. 20505
STAT Dear
Pursuant to our telephone conversation earlier this
month, I enclose copies of proposed amendments to S. 1845,
limiting use of polygraphs in employment testing.
Pages 1 and 2 are typed to indicate the changes in
the Justice Department's original draft amen were
suggested in a letter of December 19 from to
James McIntyre. New material is underlined and deleted
words are crossed out. With one exception, I believe that
we discussed all of the changes, which I trust will satisfy
the CIA's concerns.
The exception is the new matter at the end of sub-
section (B). You mentioned that CIA polygraphing of non-
competitive service employees is done in accordance with
regulations approved by the Director. It seemed to me,
upon reflection, that if this is the policy, it might be
politically valuable to write it into the statute and get
credit for doing something to protect individual rights.
Feel free to redraft the addition if it raises APA
problems or other issues.
Page 3 is another possible version of subsection (B).
We attempted to draft it to avoid the complex language
needed to describe accurately and completely the employment,
etc., relationships in the first part of the page 2 draft.
Instead, it refers only to functions that persons perform.
If you think it necessary to mention the CIA specifically,
we could insert, after the word "who" on the first line
the following:
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", for or on behalf of the Central Intelligence
Agency, the National Security Agency, or any
other agency of the United States,"
I think I prefer the page 3 version (with or without referencr
to agency regulations), but let us discuss it further.
Page 4 is a redraft of section 247(b)(2) that refers
to the exception for government contractors in (b)(1)(B).
It also changes the form from a criminal prohibition to
a civil prohibition, in line with our earlier recommen-
dation to that effect. I would think that the whole statute
would then probably go somewhere in Title 42, United States
Code, rather than in Title 18, but that can be dealt with
by the Senate Committee.
Please call me so that we can discuss any problems you
have with any of this.
Sincerely,
David A. Barrett
Special Counsel - Legislation
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Change section 247(b)(1) to read:
(b)(1) No officer or employee of the United
States nor any person acting for or on behalf
of the United States shall require or request
any officer?or employee of the United States,
or any individual seeking employment as an
officer or employee of the United States,
to take any polygraph test in connection with
his or her services or duties as an officer
or employee, or in connection with such
individual's application or consideration
for employment, except that such polygraph
tests may be administered -- i-aeee~e~a~ee-w}th
~ee}tt~atiens-ef-the-Ei~}~-Ser~iee-Ea~~ssie~:
(A) in the course of an investigation of an alleged
criminal act committed by an officer or employee of
the United States, provided that--
(i) there is probable cause to believe
that such officer or employee has committed a criminal
act;
(ii) such officer or employee freely and voluntarily
consents to the polygraph test after being informed of
the nature of the allegations against him, his privilege
against self-incrimination, and his right to counsel; and
(iii) any such employee's refusal to submit
to a polygraph test may not be used in any man-
ner against him, either in the criminal investi-
gation or in future personnel action, and no record
of the polygraph test or the refusal to submit to
it may be maintained outside law enforcement files; and
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(B) to officers or employees, or individuals
seeking employment as officers or employees,
of, persons assigned or detailed to, or affiliated
with, the Central Intelligence Agency, the-National
Security Agency, or any other agency of the United
States, if such persons actually perform or would
perform national security, intelligence or counter-
intelligence functions or engage in support or security
duties direetiy related to such functions, and to any
employees of contractors of such agencies who perform
such functions. or duties, provided that such tests
may be administered only in accordance with regulations
approved by the head of the agency or department, or
by the Civil Service Commission in the case of
employees in the competitive service.
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(B) to individuals who actually perform or would
perform national security, intelligence or
counterintelligence functions or engage in support
or security duties related to such functions, and
to any employees of government contractors who
perform such functions or duties, provided that
such tests may be administered only in accordance
with regulations approved by the head of the agency
or department, or by the Civil Service Commission
in the case of employees in the competitive service.
3
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Change section 247(b)(2) to read:
(2) Except as permitted by subsection (b)(1)(B)
of this section, no person engaged in any activity in
or affecting interstate commerce, and no individual
acting under the authority of such person, shall--
(A) require or request any individual
seeking employment in connection with such
business or activity to take any polygraph
test in connection with his application or
consideration for employment; or shall accept
or use the results of any polygraph test in
connection with such application; or shall
(B) require or request any individual
employed by such person to take any polygraph
test in connection with his or her services
or duties as an employee; or shall accept
or use the results of any polygraph test,
unless the employee freely and expressly
requests to take such a test and the request
is not a product of coercion or intimidation
by the employer.
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