S. 1035 WELL INTENTIONED - BUT MISGUIDED

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00818R000100010022-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 7
• Document Creation Date: December 16, 2016
• Document Release Date: February 7, 2005
• Sequence Number: 22
• Content Type: PAPER

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Attached is a little piece on the bill
you and I discussed. As you will see, it is
not in the form of a technical analysis but
it is accurate.
There are no restrictions from my
viewpoint with regard to Senate members
you might wish to discuss this with (non-
attributable, of course).
With the Congress out I will be out
for a few days but I would like to feel free
to be in touch with you to review the results
before the week of the 18th.
1 Sj
1 September 1967
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Well Intentioned - But Misguided
The objectives of S. 1035 are commendable. No one wishes to
deny to Federal employees their constitutional rights and their right to
privacy. The problem is how to accomplish this and at the same time
preserve the best interests of the nation. In the late 1940's and early
1950's charges of loose personnel security practices in the Executive
Branch became household words, and Congress itself was particularly
concerned. The country at large, but more specifically Congress,
became profoundly aware of the vulnerability to blackmail and pressure
on those employees who were sex deviates, those who were deep in
debt, or those who had close relatives living behind the Iron Curtain.
In response to the recognized need, and spurred on by pressures
from the Congress and the general public, departments and agencies
have developed methods and procedures to assist in detecting these
areas of vulnerability in their employees or applicants. Psychological
testing and polygraph examinations are extremely valuable aids to
supplement other means of security investigation by providing investi-
gative leads. S. 1035 prohibits inquiry of employees or applicants
concerning family relationships, religious beliefs, or sexual attitudes
and conduct through psychological teats or polygraph examinations.
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it does provide partial exemptions for two of the most sensitive agencies.
NSA and CIA, on the basis of personal findings in each individual case
before such inquiry can proceed. Apart from the unrealistic burden
imposed by the exemption on each of these Directors, it is inherent in
the nature of the exemption that these tests could not be used routinely
in the proscribed areas even though good security practice requires
that each and every applicant and employee be examined for traits which
could create security hazards. The use of either of these tools- in the
proscribed areas of security vulnerability is completely denied to all
other agencies.
The language of the prohibition against informing an employee
that notice will be taken of his attendance at outside meetings is so
broad that it could be interpreted to make it unlawful for a department
to take notice of attendance of an employee at 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. Common sense
suggests that agencies engaged in sensitive activities require employees
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. when such foreign nationals are
members of foreign intelligence services.
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Whether it be in business or Government, good management
requires freedom of inquiry between supervisors and subordinates. If
a supervisor is to supervise he must be free to do so without fear of
establishing the basis for a legal action against him by his performance
of the most routine duties. S. 1035 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 if he so requests.
Under the bill a supervisor inquiring of an employee about an excessive
number of coffee breaks could be estopped in the normal supervisor-
employee relationship by the employee insisting on the right to counsel
at that stage. Security agencies and other agencies possessing classified
documents would be faced with serious problems. If the employee
insisted, he could not be 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, without the presence of counsel. This
could cause an intolerable management situation for the supervisor and
the department. Inquiry into the conduct of an employee engaged in a
highly classified project, negotiation, or undertaking would be even more
serious if the employee insisted upon counsel and might be totally impos-
sible if the employee selected counsel who could not be granted a security
clearance.
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There is no quarrel with specific provisions making it unlawful
to coerce employees to contribute to charity organizations or to buy bonds,
to engage in political activities in the United States and others. It is only
when these issues are made available as a defense to an employee who
has been discharged for good cause that problems are foreseen with regard
to sensitive activities of Government.
S. 1035 establishes two avenues of relief to an applicant or
employee who alleges a violation of the act. It establishes an independent
Board on Employees' Rights which has the authority to investigate any
complaint and conduct a hearing. Not only may this Board issue a cease
and desist order and suspend the Government officer found guilty of
violating the provisions of the bill, but it may even direct separation of
such officer irrespective of any views of the head of that agency. We are
aware of no other authority in the law relating to Government employees
which grants authority to an independent board to terminate an employee
of a department or agency. Traditionally, the authority to terminate
rests solely with the department head. Protection of sensitive national
security or classified information that may be involved in Board proceed-
ings is left entirely to the discretion of the Board. A much more far-
reaching provision, and one which has the greatest impact on Government
operations, authorizes an employee to file directly in a Federal district
court against a Government officer whenever the employee feels 1e,has
been aggrieved under the provisions of this bill. Even more alarzzning, this
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remedy is open to applicants who could flood our courts if they for any
reason fail to secure the job they thought they were qualified to fill.
This right to file suit by an applicant could be far more injurious and
harassing than the right of an employee. Without questioning the integrity
of our judicial system, the defense of suits by security agencies 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.
The reasons which apparently justify the complete exemption
from this bill for the FBI are equally applicable to the positions occupied
by people having access to classified information in other departments
and agencies and to the other agencies in the security field in their
entirety.
Constitutional rights of employees and their right to privacy
equate with God and motherhood, and it is not surprising that S. 1035
has 55 sponsors. The problem is to keep the pendulum from swinging
too far. Rules which may be safely applied to chauffeurs, computer
programmers and letter carriers have a different impact when applied
to nuclear physicists and military planners.
Congress has recognized the special problems of personnel
security and the protection of classified information in Government
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and has granted broad authorities to aid in meeting these problems.
These authorities would be seriously eroded if S. 1035 is enacted into
law. It will be more difficult to prevent the employment of Communist
oriented individuals or persons of unsuitable character and in like
manner the problem of removing such persons is made more compli-
cated.
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