LETTER TO THE HONORABLE J. WALTER YEAGLEY FROM LAWRENCE R. HOUSTON

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00818R000100010017-5
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 7
• Document Creation Date: December 16, 2016
• Document Release Date: February 7, 2005
• Sequence Number: 17
• Publication Date: September 22, 1967
• Content Type: LETTER

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Paper given to Representative
Derwinski on 25 September 1967.
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22 September 1~b7
The Honorable .~. Waiter Yeagley
,A,~slatant Attorney General
fraternal Security Division
impartment of Justice
'~i'ashiagton. D. C. 205.30.
hear Walt:
I a.m enclosing a copy of S. 1fl35, the bill I mentioned to
Irou the other day, and the Senate Committee on the Judiciary's
Tteport on this bill. Alan enclosed is a, draft letter which we are
Cflilaidering for delivery to the Chairman of our Subcommittee- in
the licruse. While there may be changes in this letter, I think it
serve the purpose of giving you our analysis of the problems
involved. The bill passed the Senate by a vote of ?9 to 4, sithough
t~aere was a strenuous debate fox three and one-half hours on
l;3 Septerriber l96'~ which is set forth in the Congressional Retard
kseglnning at page S 12912. S. 1035, six identical bills, and three
alxnllar bills have been referred to the House Poet Office and
Civil Service Committee. We have no indication. however, that
tl~.at Committee plans to bald hearings at any time in the near
future.
In the event one of these bills begins to move in the House,
think it would be very important to know whether your office
agrees arith our analysis and particularly with the legal problems
'mat look to us to be potentially so dangerous. I would very much
~apprecfate hearing from you when someone from, your office- has
had an oppor#unity to review this materiel.
Sincerely,
s/
La~-ren~ce R. Houston
General Counsel
Ea~cloaures
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Its Impact on Government Security Programs
S. 1035 has as its objectives the protection of the constitutional
rights of Federal employees and their right to privacy. With these
objectives there can be no quarrel in the Executive Branch. It is the
concept of solving the problems and the methods of securing these rights
embodied in the bill that cause the difficulties. Not too many years ago
there was a great hue and cry about persons of unsuitable character
employed in the Executive Branch. Particularly the Congress was
concerned and expressed itself in charges of loose personnel security
practices. The Congress was fully aware of the vulnerability to black-
mail and pressure on those individuals who were sex deviates, those
who were deep in debt, or those who had close relatives living behind
the Iron Curtain.
Since then the departments and agencies with sensitive positions
have developed methods and procedures for detecting these areas of
vulnerability in their employees or applicants. But S. 1035 prohibits
inquiry of employees or applicants concerning family relationships,
religious beliefs or sexual attitudes and conduct through psychological
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tests or polygraph examinations. Even where S. 1035 provides partial
exceptions far two of the most sensitive agencies, NSA and CIA, personal
findings are required by the Directors or their designees before such
inquiries can proceed. This would require literally thousands of personal
findings each year. These agencies have determined that the polygraph is
an extremely valuable aid to supplement other means of security investigation
by providing investigative leads. They do not rely on the polygraph to
detect truth or untruth. Further, psychological testing, even in the
hands of medical officers, is restricted unless utilized in a course of
medical treatment. The use of either of these tools in the areas of
security vulnerability mentioned above is completely denied all other
agencies.
S. 1035 further provides that no individual shall be interrogated
in any matter which could lead to disciplinary action without the presence
of counsel or other person of his choice. While no one would wish to
deny counsel, it is a question of when counsel is to be permitted. Under
the bill a supervisor inquiring of an employee about tardiness for the last
three days could be halted in a normal supervisor-employee relationship
by that employee insisting on the right to counsel before he responds.
Or consider the situation in an intelligence agency or other agency possessing
2
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sensitive classified documents where an employee is queried about
the circumstances of a security violation such as leaving a safe open
the night before or his apparent loss of a Top Secret document. Again
the employee who insists on counsel at this point could cause an
intolerable management situation for the supervisor and the department.
Even more serious might be an inquiry related to the conduct of an
employee engaged in a highly classified project, negotiation or undertaking,
with the employee refusing to respond until he is permitted counsel.
S. 1035 establishes an independent Board of Employees' Rights
which has the authority to investigate any complaint and conduct a
hearing. Further, it may issue a cease and desist order and may
suspend the Government officer found guilty of violating provisions of
the bill. It may even direct separation of such officer notwithstanding
any views of the head of that agency. The Board is given broad powers
and there is no provision for the protection of sensitive national security
or intelligence information that may be involved in these proceedings.
Not only is the Board approach available, but much more far-reaching
is the provision having the greatest impact on Government operations
which authorizes an employee to file directly in a Federal district
court against a Government officer whenever he believes he has been
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aggrieved. Even more alarming, this right is open to applicants. The
right to file by an applicant could be more injurious and harassing than
the right of an employee. Applicants who for any reason failed to secure
the job they thought they were qualified to fill could flood our courts.
We all have faith in the integrity of our judicial system; but with respect
to the security agencies, the defense of suits in open court, even though
the plaintiff's action is adjudged to be groundless, requires revelation
of names, procedures, and operational activities injurious to the national
security.
Additionally, the prohibition against informing an employee that
his department will "take notice" of his attendance at outside meetings
is so broadly worded that apparently it wauld be unlawful for the depart-
ment to take note of his attendance of a meeting of the local Communist
Party the night before. The bill further makes it unlawful to require an
employee to inform or report to his department on any of his outside
activities unless there is reason to believe that such activities are in
conflict with his official duties. Employees engaged in sensitive activities
are required in many agencies to report routinely on contacts with foreign
nationals not only to alert the employing department but also to protect
the employee in his own personal security by informing him of those
situations where such foreign nationals are members of foreign intelligence
services.
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There are other specific provisions making it unlawful to coerce
people to buy bonds, to engage in political activities in the United States,
and others with which no one could quarrel in and of themselves. It is
only when these desirable objectives are joined in law with the right of
employees and applicants to file lawsuits to seek redress that problems
are foreseen with regard to sensitive activities of Government.
The recognition that Congress has given to the special problems
of personnel security and the protection of sensitive information in
Government would be seriously eroded if S. 103: is enacted into law.
It will be more difficult to prevent the employment of Communist oriented
individuals or persons of unsuitable character. In like manner the problem
of removing such persons is made more complicated.
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