MEMORANDUM FOR THE DIRECTOR FROM L. K. WHITE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00818R000100040010-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 18
• Document Creation Date: December 19, 2016
• Document Release Date: July 24, 2006
• Sequence Number: 10
• Publication Date: June 16, 1970
• Content Type: MF

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16 June 1970
MEMORANDUM FOR THE DIRECTOR
1. The attached letter to Mr. Henderson is fairly urgent
inasmuch as it appears likely that he will report out the bill
without hearings. We are attempting to expedite clearance at
the BOB, and I shall get in touch with to make
sure he does what he can. In addition, Jack Maury will attempt
to get Mahon and Rivers to sign letters to Henderson.
2. Jack also has in mind preparing letters to the Secretary
of State, the Secretary of Defense, and the Attorney General
which will repeat our concern and advise them of the line we are
taking. In this connection, you may recall that Laird at one time
indicated that he might speak to Jerry Ford. If this is in the
cards, now is the time.
MO I/
-16
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Package
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Mr. Wilfred H. Rommel
Assistant Director for legislative Reference
Bureau of the Budget
Washington, D. C. 20503
Dear Mr. Rommel:
Chairman Henderson, of the Subcommittee on Manpower and
Civil Service, House Post Office and Civil Service Committee, has
requested a report from this Agency on a bill. S. 782, to protect the
constitutional rights and privacy of Government employees.
Enclosed is a proposed report to the Subcommittee on S. 782
and, for the information of the Bureau, a statement tracing the major
developments involving this legislation. over the last two Congresses.
A classified addendum to the proposed report is being sent under
separate cover.
Advice is requested as to whether the Bureau of the Budget
has objections to the submission of this report.
Sincerely,
John M. Maury
Legislative Counsel
Distribution:
Orig & 1 - Addse
1 - DDS
1 -OGG
2-OLC
OLC/LLM;smg (15 June 70)
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CENTRAL INTELLIGENCE AGENCY
The Honorable David N. Henderson, Chairman
Subcommittee on Manpower and Civil Service
Committee on Post Office and Civil Service
House of Representatives
Washington, D. C. 20515
My dear Mr. Chairman:
This is in response to your request for my views on S. 782,
a bill to protect the civilian employees of the Executive Branch of
the United States Government in the enjoyment of their constitutional
rights and to prevent unwarranted governmental invasion of their
privacy.
I do not attempt to comment on the impact of S. 782 in general.
My main concern is rather with its effect on the Central Intelligence
Agency and the other agencies forming the intelligence community.
Certain provisions of S. 782 directly conflict with the statutory
responsibilities of the Director of Central Intelligence for protecting
intelligence sources and methods, and data relating to the organization
of the Central Intelligence Agency. For example, the National Security
Act of 1947 provides:
". . . the Director of Central Intelligence shall be
responsible for protecting intelligence sources and
methods from unauthorized disclosure; . . "
(50 U. S. C. 403(d)),
and the Central Intelligence Agency Act of 1949, as amended, provides:
"In the interests of the security of the foreign intelligence
activities of the United States and in order further to
implement the proviso of section 102(d)(3) of the National
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Security Act of 1947 (Public Law 253, Eightieth Congress,
first session) that the Director of Central Intelligence shall
be responsible for protecting intelligence sources and methods
from unauthorized disclosure, the Agency shall be exempted
from the provisions. . . of any. . . law which require[s] the
publication or disclosure of the organization, functions,
names, official titles, salaries, or numbers of personnel
employed by the Agency. . . " (50 U. S. C. 403g).
The adverse impact of S. 782 on the fundamental security interests
of this Agency was developed in detail during my testimony before an
executive session of your Subcommittee on 25 June 1968 in connection with
S. 1035, an earlier version of S. 782. I am forwarding under separate
cover certain classified material which restates our principal concerns.
S. 782 is an improvement over S. 1035 in several respects, but
the adversary procedures which it authorizes pose the same critical
problems inherent in S. 1035--the Agency must either remain silent in
the face of unfounded allegations (with the alleged offending officer
taking the consequences of the sanctions embodied in the bill), or it
must divulge information which it is obligated by statute to protect,
and disclosure of which might damage the national intelligence effort.
It is therefore my considered judgment that the Central Intelligence
Agency requires a complete exemption from S. 782 such as section 9 of
the bill provides for the Federal Bureau of Investigation. It is also my
belief that S. 782 creates serious problems for certain other components
of the intelligence community, such as the National Security Agency, and
I trust that their views will receive favorable consideration.
I shall be happy to provide any additional information you may
request.
The Bureau of the Budget has advised that from the standpoint of
the Administration's program, there is no objection to the submission
of this report.
Sincerely,
Enclosure
(Under Separate Cover)
Richard Helms
Director
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CIA - Personnel Security and Suitability
1. The Agency has special responsibility to ensure the loyalty,
security consciousness, integrity and psychological stability of its
employees:
a. Soviet and other hostile services assign overriding
priority to penetrating U. S. intelligence organs by identifying
and exploiting personal vulnerabilities and weaknesses of our
personnel.
b. Such penetration can enable the enemy to identify and
neutralize our own intelligence operations; learn what we know,
and don't know, about enemy capabilities and intentions; gain
insights enabling the enemy to confuse and deceive us; and
provide vital information about U.S. national policy, military
capabilities, technology, etc. , with which Agency personnel often
become familiar in the course of their routine work.
c. Intelligence personnel are not only an attractive target
for the enemy, but in many respects a particularly accessible
one. Unlike members of most Government organizations,
intelligence personnel often must carry out their demanding and
sometimes dangerous assignments completely alone and in
hostile areas. They are thus subject to severe psychological
pressures. They are far removed from immediate supervision,
or even observation by friendly colleagues. In these circumstances
any latent vulnerabilities and instabilities in their character or
loyalty may come to the surface and be detected and exploited by
an ever-alert enemy.
d. The only protection against these hazards is a careful
and thorough assessment of the individual to ensure the selection
of the right man for the job.
C F1"EE,1TIAL
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e. This is essential not only in the interest of the Agency
and the Government, but in that of the individual as well. Many
people, through no fault of their own, are subject to latent weak-
nesses and vulnerabilities of one sort or another, and we believe
it would be a great disservice to them to impose upon them
burdens for which they are unfitted, perhaps leading to unfortunate
consequences for them as well as for the Agency.
2. Hence we have over the years, with the best professional advice
available, devised a system of medical and psychological tests and security
checks designed to identify potential problems in these fields before they can
cause serious damage. In a sense these tests may be compared with the
thorough assessments employed in the selection of jet pilots and astronauts--
too much is at stake to take chances with avoidable human error or weakness.
3. In the past there have been all too many cases where sensitive
agencies of both the U. S. and other free world governments have suffered
massive damage precisely because latent human weaknesses of individuals
in key positions were detected and exploited by our enemies: several
cases a few years back seriously disrupted the effectiveness of NSA; the
British Intelligence Service has still not recovered from the effects of the
Philby, Blake and other cases; the Germans, French and Swedes, among
others, have had similar experiences; and just last year an intensive investi-
gation was taking place in Brussels to determine the damage to NATO
security resulting from an espionage case there.
4. In sum, CIA's procedures for ensuring the security and suit-
ability of its personnel have been developed over the years on the basis of
the Agency's specialized knowledge of the aims and methods of the opposition,
the importance and sensitivity of the Agency's responsibilities, the best
available professional advice, and the cumulative practical experience of
over two decades of Agency management. These procedures have, with
only the rarest exceptions, had the full understanding and support of Agency
personnel. Any major changes in these procedures should be adopted only
after a most careful examination of the possible consequences.
CRT
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Section-By-Section Analysis of Certain Provisions of S. 782
Section 1 (b). Prohibits taking notice of attendance or lack of attendance
at any assemblage, discussion, or lecture held or called by any officer of the
Executive Branch, or by any outside parties or organizations to advise, instruct
or indoctrinate any civilian employee in respect to any matter or subject other
than the performance of official duties.
The purpose of this section is to protect employees from compulsion to
attend meetings, discussions, and lectures on political, social, and economic
subjects unrelated to his duties.
The language is so broad that it can be interpreted to prohibit a
department or agency from taking notice of the attendance of an employee
at meetings of subversive organizations or meetings designed to under-
mine the Government of the United States. Many departments and agencies,
and particularly those dealing with security matters, would find such a
prohibition intolerable.
Section 1 (d). Makes it unlawful to require an employee to make any
report of his activities or undertakings not related to the performance of
official duties unless there is reason to believe that the employee is engaged
in outside activities or employment in conflict with his official duties.
The purpose of this section is to guarantee the freedom of an employee
to participate in any endeavor or activity in his private life as a citizen, free
of compulsion to report to supervisors his action or inaction, his involvement
or his noninvolvement. It is to assure that he is free of intimidation or
inhibition as a result of the employment.
This section is of primary importance to those agencies concerned with
security matters which could be seriously compromised by employee activities
and relationships not directly connected with his employment. Security agencies
must request their employees to report contacts with foreign officials not only
to give the employer notice of the relationship but also to protect the employee
in his personal security should the foreign official be a member of an intelligence
service. Similarily, the security agencies must request employees to submit
publications and speeches for clearance in advance to insure that there is no
inadvertent disclosure of intelligence information.
CONFIDENTIAL,
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CONI"INNIIAL.
Section 1'(e). Makes it unlawful to require or request any applicant or
employee to submit to any interrogation or examination designed to elicit from
him information concerning his personal relationship with any person connected
with him by blood or marriage, or concerning his religious beliefs or practices,
or concerning his attitude or conduct with respect to sexual matters. The
section also prohibits the use of psychological testing to inquire into these same
areas. These questions may be asked only on the determination by a physician
that they are necessary to enable him to determine whether or not an employee
is suffering from mental illness. An employee may be informed of a specific
charge of sexual misconduct and afforded an opportunity to refute the charge.
A partial exemption from this subsection is provided for CIA and the
NSA in section 6. These agencies may use psychological testing in the pro-
scribed areas on the basis of a personal finding by the Directors or their
designees in each individual case that the information is necessary to protect
the national security.
Psychological testing in these areas is part of the total screening
process which has been established to weed out applicants with undesirable
traits. It is of primary concern to security agencies. The exemption provided
by section 6 affords some relief, but it will still be necessary to make personal
findings in each individual case. This implies that psychological screening is
an exception rather than the necessary procedure in every case.
Section 1'(f). Prohibits the use of a polygraph test designed to elicit
from an applicant or employee information concerning his personal relationship
with any person connected with him by blood or marriage, or concerning his
religious beliefs or practices or concerning his attitude or conduct with respect
to sexual matters.
The purpose is. not to prohibit the use of the polygraph but to prohibit
its use to elicit information considered to be of a personal nature.
A partial exemption from this subsection is provided for CIA and NSA in
section 6. The polygraph may be used in the proscribed areas on the basis of a
personal finding by the Directors or their designees in each individual case that
the test is necessary to protect the national security. As with the psychological
testing, polygraph testing is of primary concern to the security agencies who
have found it to be not only an invaluable supplement to field investigations
but uniquely effective in detecting certain types of security vulnerabilities.
It is particluarly useful in uncovering undesirable characteristics which do
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CCt iEbTI~y L
not appear in field investigations. The requirement for individual findings in
each case to obtain relief from this subsection implies that polygraph screening
is an exception rather than a necessary procedure.
Section 1 (i). Makes it illegal to request any employee to disclose any
items of his property, income, or other assets, sources of income, or liabilities.
The first proviso excepts those employees who have authority to make final
determination with respect to claims which require expenditure of monies of
the United States. The second proviso excepts reports as may be necessary or
appropriate for the determination of liabilities for taxes, tariffs, custom duties,
or other obligations imposed by law.
A partial exemption for the NSA and the CIA has been granted in
section 6. Financial disclosure may be requested of an employee or applicant
on the basis of a personal finding by the Directors or their designees in each
individual case that the information is necessary to protect the national security.
The broad language used could prohibit requesting certain information from
employees for such things as credit union loans, health insurance reimbursements,
and other programs designed for the welfare of the employee, which are not
directly related to national security and thus not covered by the partial exemption
granted CIA and NSA.
Section 1 (j). Makes it illegal to request financial disclosure from those
employees excepted under the first proviso of subsection (i) other than specific
items tending to indicate a conflict of interest.
Full financial disclosure assists both the employee and the Government
in making what at best is a difficult decision as to conflict of interest. In the
absence of full disclosure, it appears that this burden is placed entirely upon
the employee.
Section 1 (k). Makes it illegal to require an employee who is under
investigation for misconduct to submit to interrogation which could lead to
disciplinary action without the presence of counsel or other person of his choice
if he so requests. In the case of NSA and CIA, counsel must be either another
employee of, or approved by, the agency involved.
This right inures to the employee at the inception of the investigation
and does not require that the employee be accused formally of any wrongdoing
before he may request presence of counsel or friend.
CONFIDENTIAL
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This section is understood to be of concern to all departments and
agencies and could lead to a serious deterioration of employee discipline.
If a supervisor asks an employee for an explanation of consistent tardiness
the employee is entitled to counsel at this stage. The section is of even
more concern to the security agencies which may find it necessary to
interrogate an employee regarding activities related to security matters.
Section 1 (1). Makes it illegal to discharge, discipline, demote, deny
promotion, relocate, reassign, or otherwise discriminate against an employee
by reason of his refusal or failure to submit or comply with any requirement
made unlawful by this act.
The purpose of this section is to prohibit discrimination against any
employee because he refuses to comply with an illegal order as defined by
this act or takes advantage of a legal right embodied in the act.
This section, combined with section 4, could seriously undermine the
authority of any executive agency to conduct its business. For example, any
employee being transferred to a post to which he objects could block the
transfer with a suit alleging a violation of this act until such time as the case
is brought to trial and it is proven that the transfer is for the benefit of the
Government and is not a disciplinary action.
Section 4. Permits any employee or applicant who alleges that an
officer of the Executive Branch has violated or threatened to violate provisions
of the act to bring a civil action in the district courts.
The potential of this section when combined with section 1 (1) is most
serious. With the written consent of any person affected or aggrieved by a
violation or threatened violation, any employee organization may bring action on
behalf of such person, or may intervene in such action. This would appear to
establish a basis for jurisdictional conflicts between competing unions. Further,
this section and section 5 establish two new forums for an employee who is
terminated for cause to contest the termination on the issue of a violation of
this act.
Since the court action authorized by the bill is against the offending
supervisor rather than the department or agency, the practical result is
litigation between one employee and another. This in turn could expose super-
visors to continued harassment by disgruntled employees with the result of a
serious breakdown in discipline and reluctance of qualified employees to accept
supervisory responsibility.
GO . TlAL 4
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CCITIAL
With respect to applicants, this section has most serious implications.
All departments and agencies would be subject to harassment by any applicant
who is not hired for the position he feels qualified to fill. For example,
subversives acting on their own or on instruction from foreign agents could
file suits for the sole purpose of harassment based on allegations of improper
questioning during recruitment interviews.
Section 5. Establishes an independent Board on Employees' Rights to
provide applicants or employees with an alternative means of obtaining
administrative relief from violations of the act short of recourse of the
judicial system. It creates the same potential for harassment as section 4.
If the charged employee loses his case before the Board, he can still take it
to the courts.
Section 6. Permits the CIA and the NSA to request employees or
applicants to take a polygraph test or psychological testing designed to elicit
information concerning his personal relationship to any person connected with
him by blood or marriage, or concerning his religious beliefs or practices, or
concerning his attitude or conduct with respect to sexual matters, or to provide
a personal financial statement if the Directors, or their designees, make a
personal finding with regard to each individual case that the test or information
is required to protect the national security. In view of previous comments in
connection with subsection 1(e) (psychological testing) and with subsection 1(f)
(polygraph) this section implies that these screening aids will be used as an
exception rather than the necessary procedure in every case.
Section 7. Requires an employee of CIA or NSA to give his employing
agency 120 days to prevent threatened violation of the act, or redress an
actual violation of the act, before proceeding before either the United States
district court or the Board on Employee's' Rights. This requirement for notice
does not apply to CIA or NSA applicants who, along with all other Executive
Branch employees and applicants, have a right to bring an action before the Board
or the district court and disregard existing administrative remedies or grievance
procedures.
The section reaffirms the existing statutory authority of the Director of
Central Intelligence and the Director of the National Security Agency to terminate
the employment of any employee. However, the potential for statutory conflict
still exists should the Director terminate an employee for cause under existing
statutory authority and a district court order reinstatement on a finding of a
violation of the act.
CONFIDENTIAL
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e o 11 1" H ?, a 'M
Section 8. Recognizes the statutory authority of the Director of
Central Intelligence and the Director of the National Security Agency to protect
or withhold certain information from unauthorized disclosure. However,
information which the Director determines must be protected and not disclosed
may actually provide the only basis for refuting unfounded allegations. Since
the sanctions embodied in the bill run against the alleged offending employee
not the Director making the determination, the net effect of withholding
information to protect vital national interests is to make the charged employee
bear the consequences, which can include loss of pay and even termination of
employment. On the other hand, disclosure of such information with its
consequential damage to the national intelligence effort is even less acceptable.
Section. 9. Grants the FBI a complete exemption from the act.
6
CC 1 ~C~ V AL
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ADMINISTRATIVE USE ONLY
MAJOR DEVELOPMENTS -- S. 782
90th Congress
Senate Committee: The predecessor bill, S. 1035, was reported
out of Senate Judiciary Committee on 21 August 1967 ( S. Rpt. 534) with
full exemption from the bill for the FBI and for the CIA and NSA a artial
exemptionCfrom the prohibition relating to polygraph or psychological
tests and financial statements upon a personal finding by the Director
concerned that such information is required to protect national security.
Senate Floor: S. 1035 passed the Senate on 13 September 1967
with amendments which (1) deleted the complete exemption for the FBI
and placed it in a similar category with CIA and NSA, and (2) authorized
a designee of the Director involved to make the national security finding
needed to invoke the partial exemption.
House Committee: S. 1035 was referred to the Manpower and
Civil Service Subcommittee of the House Post Office and Civil Service
Committee, chaired by Representative David N. Henderson. The
Director of Central Intelligence testified in executive session on S. 1035
and H. R. 17760, a substitute bill introduced by Chairman Henderson.
The Director of Central Intelligence recommended a complete exemption
from the bill for the CIA and other departments and agencies of the
ADMINISTRATIVE USE ONLY
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intelligence community, the same position set out in the letter to the
Director of the Bureau of the Budget from the Director of Central Intelligence
dated 12 October 1967. No further action was taken on either bill during
the 90th Congress.
91st Congress
Senate Committee: The Director of Central Intelligence testified in
executive session before the Constitutional Rights Subcommittee (chaired by
Senator Ervin) of the Senate Judiciary Committee on S. 782 which was identical
to S. 1035 as amended, and passed by the Senate during the 90th Congress,
with specific exemptions from the provisions relating to polygraph, psychologi-
cal testing and financial disclosures for CIA, NSA and the FBI. The Director
of Central Intelligence restated the position that had been taken in connection
with S. 1035: the need for a complete exemption. Senator Ervin opposed a
complete exemption and eventually informally proposed several modifications
on which he informally requested comments. These modifications were
revised in keeping with some, but not all, comments made and were included
as amendments in the bill as reported out on 15 May 1970 (S. Rpt. 873).
Senate Floor: S. 782 as amended was passed by the Senate on
19 May 1970, without discussion.
House Committee: S. 782 was referred to the House Post Office and
Civil Service Committee on 20 May 1970 and Chairman Henderson of the
Manpower and Civil Service Subcommittee requested the Agency's views..
ADMINISTRATIVE USE ONLY
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NINETY-FIRST CONGRESS
`f
DAVID N. HENDERSON, N.C., CHAIRMAN
ROBERT N. G. NIX, PA.
RICHARD C. WHITE. TEX.
LEE H. HAMILTON. IND.
FRANK J. BRASCO, N.Y.
H. R. GROSS, IOWA
EDWARD J. DERWINSKI. ILL.
DONALD E. LUKENS. OHIO
EX OFFICIOI
THADDEUS J. DULSKI, N.Y.
ROBERT J. CORBETT, PA.
W.6. 30ou5c of R cpre5entat`beZ
SUBCOMMITTEE ON MANPOWER AND CIVIL SERVICE
OF THE
COMMITTEE ON POST OFFICE AND CIVIL SERVICE
taztjtn ton, OX. 20515
May 22, 1970
Mr. Richard Helms I!
Director, Central Intelligence
Agency
Washington, D.C. 20505
Senate bill S. 782, a bill to protect the civilian
employees of the executive branch of the United
States Government in the enjoyment of their consti-
tutional rights and to prevent unwarranted govern-
mental invasions of their privacy, passed the Senate
on May 19, 1970, and has been referred to the I-louse
Committee on Post Office and Civil Service, Subcom-
mittee on Manpower and Civil Service.
The Subcommittee would appreciate receiving your
views on this particular legislation.
With best wishes, I am
Sincerely yours,
Chairman
Z
~uidI Render
s n
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.
l1.
i
_
OFFICIAL ROUTING SLIP
TO
NAME AND ADDRESS
DATE
INITIALS
I
DD/S
2
General Counsel
lS~ J`ar'
3
4
5
6
ACTION
DIRECT REPLY
PREPARE REPLY
APPROVAL
DISPATCH
RECOMMENDATION
COMMENT
FILE
RETURN
CONCURRENCE
INFORMATION
SIGNATURE
Remarks ;
Attached is the report on the Ervin bill to
be proposed to the Director. The report is iden-
tical to the draft in which you concurred on 12
and 11 June, respectively, except that (1) the
last sentence of the first complete paragraph on
the second page has been changed to accommodate
the General Counsel's recommendation that the
analysis be classified "Confidential, " and (2) a
two-page statement dealing specifically with per-
sonnel security and suitability has been added to
the classified addendum.
I am also sending you a copy of the BOB
transmittal letter and call your attention to the
enclosure which traces, for information of BOB
only, the major developments relating to S. 782.
If the package meets with your approval,
please indicate by concurring.
FOLD HERE TO RETURN TO SENDER
FROM: NAME. ADDRESS AND PHONE NO.
DATE
islative Counsel 7D3
Le
6-15-70
g
UNCLASSIFIED CONFIDENTIAL
SECRET
FORM No. 237 Use previous editions
1-67 237
A5.iIYi IEA) t)isN'L1AL
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I
P
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 ROUTING AND RECORD SHEET
oved Fie+~>~A'16/07/24~ CIA-RDP
UNCtASS ~~~~
LISE...ONLY
Legislative Counsel
TO: (Officer designation, room number, and
building)
15.
Director
I~
legislative Counsel
SECRET ^ CONFIDENTIAL INTERNAL ^ USE ONLY
^ UNCLASSIFIED
OFFICER'S COMMENTS (Number each comment to show from whom
INITIALS to whom. Draw a line across column after each comment.)
Attached is a report on the
"'Plf" Ervin bill for your signature. The
report requests a complete exemp-
tion from the bill for CIA and
endorses such exemption for NSA
and other components of the
intelligence community as are
requested. The report has the
concurrence of the General
Counsel and the DDS.
Since Chairman Henderson, of
the House Manpower and Civil
Service Subcommittee, does not
plan hearings, we have beefed up
the report by two classified
addenda: (1) analyzes those
provisions of the bill which would
cause us serious problems and
(2) restates the reasons for the
Agency's special responsibility to
ensure the loyalty, security
consciousness, integrity and
psychological stability of its
employees.
With your approval of the
report, a copy will be forwarded
to BOB for clearance prior to
transmittal to the Congress in
accordance with standard
procedurl
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