STATEMENT OF HAL WITT ON BEHALF OF AMERICAN CIVIL LIBERTIES UNION ON H. R. 7199

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00818R000100050061-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 26
• Document Creation Date: December 16, 2016
• Document Release Date: August 1, 2005
• Sequence Number: 61
• Publication Date: May 17, 1971
• Content Type: TRANS

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Statement of Hal Witt
on behalf of
American Civil Liberties Union
To protect the civilian employees of the execu-
tive branch of the United States Government in
the enoyment of their constitutional rights
and to prevent unwarranted governmental invasions
of their privacy.
Subcommittee on Employee Benefits
Committee on Post Office and Civil Service
U. S. House of Representatives
Monday, May 17, 1971
My name is Hal Witt. I am appearing ere today on behalf of
the American Civil Liberties Union. I am an attorney in private
practice in Washington, D. C. and a member of the Executive Board
of the American Civil Liberties Union, National Capital Area.
The ACLU appreciates the opportunity to testify in support
of H. R. 7199, a bill to protect the employees of the executive
branch of the United States Government in the enjoyment of their
constitutional rights and to prevent unwarranted governmental inva-
sions c= their privacy.
We wish to express our appreciation to Chairman Hanley and
the members of the Subcommittee on Employee Benefits for holding
these hearings and inviting us to testify. H. R. 7199, introduced
by Representative Charles H. Wilson of California, is (with one
major exception) substantially the same as S. 1438, the bill which
has been championed in the Senate by Senator Ervin for several
years. Representative Wilson and Senator Ervin, and all of their
colleagues who join them in co-sponsoring these bills, are to be
congratulated for their interest in and concern for the rights of
Federal employees.
There is no matter which is more deserving of the attention
of the Congress. The proper and effective functioning of our gov-
ernment depends to a high degree upon the support and morale of the
vast body of Federal employees. We believe that nothing can be
more damaging to the morale of those employees and to their devo-
tion to their jobs than the fact that the government itself in many
instances disregards the rights of employees in serious ways.
It is a truism, but worthy of repetition, that an institution
will generally receive from the individuals who are involved with it
a measure of respect which is commensurate with the respect with
which the institution treats the individuals. In order, therefore, to
inspire the highest sense of loyalty and devotion to duty on the part
of its employees, the Federal government must set an example of
loyalty and devotion to the rights and interests of the employees.
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Unfortunately, the record of our government has all too often
been clouded with violations of this principle. It is, perhaps, easy
to understand that an overzealous official may be tempted, by what he
or she understands to be the interests of the government, to take
measures which appear to advance that interest, but which at the same
time disregard the rights of an individual employee. The fact that
such tendency is understandable, however, does not make it justifiable.
Indeed, the fact that the tendency is understandable means that the
behavior is all too likely to occur and reoccur, and that it is
essential to build into the system itself the best possible protections
against the tendency, whether well-intentioned or not, to infringe
individual rights.
We believe that the subject of Federal employees' rights to
privacy is particularly important at this time. There is increasing
public awareness of the power of new technology to invade the privacy
of individuals.
The Wall Street Journal of Monday, May 3, 1971, carries a
thought-provoking article by David C. Anderson, a member of the
Journal's editorial-page staff, entitled, "On Communications and
Common Sense." Mr. Anderson discusses two recent books, "The Infor-
mation Machines,"by Ben Bagdikian and "The Assault on Privacy," by
Arthur R. Miller. These books point out the rapid developments in
the techniques of communications and information-gathering and
storage, and their alarming implications, in terms of the possibili-
ties of monitoring and spying upon the activities of citizens and
their private lives.
Mr. Anderson notes that one may conclude from the books of
Messrs. Bagdikian and Miller that "As the technologies grow more
pervasive and sophisticated, they may have the subtle effect of
eroding the amount of common sense we normally bring to our deci-
sions, either as leaders, or as voters."
For the convenience of the Subcommittee, we are attaching
to this statement a copy of the article by Mr. Anderson and of the
editorial, "Accountability and Arrogance," which appeared on the
editorial page of the Wall Street Journal on the same day, May 3,
1971.
We also want to quote here from the last paragraph of that
editorial, where the Wall Street Journal observes that "The modern
world makes the idea of accountability for power in a democracy more
important than ever, however upstanding the people who use it. To
ignore this idea is at best remarkably short-sightedb at worst it
involves an arrogance no free society can afford for long."
It is important, and admirable, that this Subcommittee is
turning its attention so seriously to the rights of privacy of
Federal employees at this time, in this context.
We would like now to discuss some of the particular provisions
of H. R. 7199.
The bill would make it unlawful for any government or military
official:
1. To require any employee or applicant to disclose
his race, religion or national origin-
2. To inform government employees that they are
required or expected to attend or not attend
any meeting or lecture unrelated to the per-
formance of assigned duties.
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3. To require employees to participate in activities
or undertakings not directly within the scope of
their employment;
4. To require or request reports of government em-
ployees concerning any activities or undertak-
ings not directly within the scope of their
employment;
5. To require any employee or applicant to submit
to any interrogation, examination or psychological
or polygraph test designed to elicit information
about personal relationships with relatives, or religious
beliefs or practices, or his attitude and conduct
with respect to sexual matters;
6. To require or request any employee to support any
candidate. program or policy of any political party
by personal endeavor or contribution;
7. To coerce any employee to buy U. S. Savings Bonds
or make any kind of donation ('appropriatd'pub-
licity would be permitted);
8. To require any employee to disclose his financial
assets or liabilities or those of any member of
his family, with exceptions for those with
authority to make final determinations in tax
and certain other matters;
9. To require any employee who is under investiga-
tion for misconduct to submit to an interroga-
tion without the presence of counsel or other
person of his choice;
10. To discharge, discipline, or fail to promote any
employee for refusal to submit to any require-
ments, requests or action made unlawful under this
bill.
The bill forbids the Civil Service Commission from requiring
any Federal agency to do any of the above things. The bill provides
for court action by any employee to enjoin any threatened violation
of the Act or to obtain redress, and establishes a Board of Employees'
Rights which would be empowered to receive complaints, hold hear-
ings, and order that officials cease and desist from violations of
the Act. In an important difference between this bill and the
Senate bill, to which we have previously referred, this bill does not
exempt the FBI from its coverage generally. We believe this is
an improvement over the Senate version. Persons who work for the
FBI should have the same rights all other persons have, and recent
incidents which are well known through the press are illustrative
of the need for legally guaranteed protection for people who work
for the FBI.
Questions on Religion and Religious Beliefs
Section l(a) would ban questions of applicants or employees
forcing them to disclose their religion or the religion of their
forebears. We would like to suggest that in Section 1(a) the word
"religion" be replaced with the words "religious beliefs or lack
of religious beliefs." In many cases we have encountered, the
argument has been made that trying to find out if a person doesn't
believe in God is not an inquiry into religious beliefs -- because
atheism is not a religion. Needless to say, this sophistry should
have been thoroughly laid to rest by the case of Torcaso v.
Watkins, 367 U.S. 488 (1961), yet it continues to arise. If the
wording is changed as we have suggested, it should help avoid this
contention.
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Questions on Race
The ACLU recognizes that questions about race raise difficult
problems. The issue of whether or not to collect and disseminate
information about race creates.a conflict among several equally
important civil liberties: the rights of free speech, free inquiry,
freedom of religion, and privacy, on the one hand,.and the right to
equality of opportunity and treatment, on the other hand.
It may be necessary, in order to ensure that government hiring
and other personnel practices are free from racial discrimination,
to acquire information about the race of applicants for employment,
so that the pattern or practice of hiring as among persons of
various racial backgrounds may be examined and so that patterns and
practices with regard to job assignments, promotions and other
personnel practices may be similarly examined.
We think therefore, that there may be serious questions raised
by the blanket prohibition, contained in Section 1(a) of the bill,
on questions about race. We recognize that the intention of the
bill, to protect the privacy of the individual, is excellent, but
we feel that some consideration must unfortunately be given to the
need for racial information in order to combat racial discrimina#ion.
Questions on Political Beliefs and Associations
We believe that H. R. 7199 should be broadened by including
within the prohibitions of Section l(e) a prohibition on interroga-
tion, examination or psychological testing with regard to the
employee's political beliefs and associations. Since H. R. 7199 is
aimed at protecting the constitutional rights of federal employees,
it is appropriate to consider the inquiries presently being made by
the Civil Service Commission of all applicants for federal employ-
ment.
The Civil Service Commission asks all applicants questions
about their political beliefs and associations and asserts the
right to investigate them and their beliefs and associations under
the guise of determining their "suitability." This is a practice
which has no business in a democratic country.
The only law presently in effect which denies public employ-
ment on the basis of political beliefs or associations is P.L. 330-
84th Congress (5 U.S.C. ? 118(p)) which bars from federal employ-
ment any individual who:
1. advocates the overthrow of our constitutional
form of government in the United States;
2. is knowingly a member of an organization that
so advocates;
3. participates in any strike or asserts the right
to strike against the government of the United
States; or
4. is knowingly a member of an organization of gov-
ernment employees that asserts the right to
strike against the government.
There is no law passed by Congress that sets any other dis-
qualifications based on political beliefs or associations. At one
time, a loyalty program encompassed all federal employees, under
Executive Order 9835 issued by President Harry S. Truman, on March
21, 1947. It was, however, specifically repealed by Executive
Order 10450, issued by President Dwight D. Eisenhower on April 27,
1953, which replaced the Truman loyalty program by a security
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program. This was interpreted by the United States Supreme Court
in the case of Cole v. Young, 351 U.S. 536 (1956). holding that
the federal secu tir y program under E.O. 10450 was restricted to
sensitive jobs i.e., those which can effect national security.
The Civil Service Commission has chosen to ignore this
Supreme Court decision and has been operating a loyalty program
under the guise of a "suitability" program. It cites as its
authority, ? 2 of the civil Service Act authorizing the Commis-
sioners to prepare rules that provide, among other things, for
examinations to test relative capacity and fitness. It has
issued Part 731.201 of the Commission's regulations authorizing
the Commission to remove an appointee on the grounds of "reason-
able doubt as to the loyalty of the person involved to the gov-
ernment of the United States." Its interpretation of this
standard is so broad and general that it poses a continuing
constant threat to the constitutional rights of all government
employees.
It should be made clear that we are not talking about sensi-
tive positions in which individuals must have access to classified
material or can influence governmental policy.
The Personal Qualifications Statement (Standard Form 171)
to be filled out by applicants for Federal employment contains
a question 25 which reads:
A. Are you now, or within the last ten years have
you been, a member of:
(1) The Communist Party, U.S.A., or any sub-
division of the Communist Party, U.S.A.?
(2) An organization that to your present know-
ledge advocates the overthrow of the
constitutional form of government of the
United States by force or violence or other
unlawful means?
B. If your answer to Item A(l) or A(2) is "Yes," write
your answers to the following questions in Item
34 or on a separate piece of paper:
(1) The name of the organization? (2) The dates of
your membership? (3) Your understanding of the
aims and purposes of the organization at the time
of your membership?
It should be noted that Congress did not specifically require
this question to be asked. Congress, instead, did require in 5 U.S.C.
9 118(q) that an affidavit be filed by all government employees
after August 9, 1955, that his acceptance and holding of employment
does not constitute a violation of Section 118(p) -- that he
advocates or belongs to organizations advocating the forceful over-
throw of the government or the right to strike. It further states
that such affidavit shall be considered prima facie evidence that
the acceptance and holding of office or employment by the person
executing the affidavit does not or will not constitute a viola-
tion of such section.
Since Congress itself has set forth the specific disqualifi-
cations based on advocacy or organizational views and the method
for enforcing them, there is no legislative authorization for the
Civil Service Commission to have any broader kind of inquiry as it
does in Question 25 on Form 171.
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However, even if this were not true, there is absolutely no
legal basis for the Civil Service Commission to require all appli-
cants to answer questions as to whether they had belonged to such
organizations in the past. The disqualification in P.L. 330 is
solely directed to present membership or advocacy.
The ACLU believes that Public Law 330 is unconstitutional
in its entirety, in infringing on First Amendment freedoms. There
is no basis or justification for the Civil Service Commission
going further.
Recognizing the fact that the determination of loyalty is a
very sensitive matter not to be entrusted to bureaucrats without
specific legislative authorization, the Supreme Court has looked
with a jaundiced eye on broad and vague limitations on the
political rights of government employees by means of questions and
inquiries which affect First Amendment freedoms. Elfbrandt v.
Russell, 384 U.S. 11 Baggett v. Bullitt, 377 U.S. 360; Cramp v.
Board of Public 'Instructs no of Orange County, 368 U.S. 2787 Speiser
v. Randall, 357 U.S. 513.
Standard Form 85 requires all employees who are going to
work in non-sensitive positions to answer the following question:
8. Organizations with which affiliated (past and
present) other than religious or political
organizations or those which show religious or
political affiliations (if none, so state).
The form of the question suggests that the political organization
exception refers only to organizations connected with political
parties. Since no other explanation is given, employees may be
required to include organizations such as League of Women Voters,
NAACP (See NAACP v. Alabama, 357 U.S. 449 (1958) in which the
Supreme Court held that NAACP had a right to conceal its member-
ship list in Alabama,- Bates v. Little Rock, 361 U.S. 516 (1960)
similarly in Little Rock, Arkansas, and Louisiana v. NAACP, 366
U.S. 243 (1961), similarly in Louisiana), American Legion,
National Rifle Association, Americans for Democratic Action,
Americans for Constitutional Government, John Birch Society,
Friends Committee on National Legislation, Chamber of Commerce
and even the American Civil Liberties Union. All of these organi-
zations take positions on legislation -- and, therefore, the
exception of "political affiliations" is a phantom in protecting
the right of individuals from inquiry as to their political beliefs.
This form requires each new employee to certify that his statements
are true: complete and correct to the best of his knowledge and
belief and are made in good faith." Also the form contains a
warning that a false statement on the form is punishable by law.
This means that if any federal employee fails to disclose all of
the organizations with which he has ever been affiliated, he may be
subject not only to be discharged and barred from federal civil
service, but also to criminal prosecution for giving false infor-
mation.
So far, we have only discussed the questions on federal forms
given to all applicants and employees. We have not discussed the
operation of the "suitability" program run by the Civil Service
Commission. Under this program, the Commission asserts the right
to send interrogatories to any federal employee and to conduct
background investigations questioning friends and neighbors about
political views and associations. The Commission's investigators
at one time also asserted the right to question any employee or
applicant and absolutely bar counsel from being present. (Other
agencies of the Government still bar counsel for the employee!)
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How
has
this suitability program been operating?
We will
describe
absolutely
six
no
cases, all involving non-sensitive jobs
security ramifications.
--
with
A. A newly employed research chemist in the Food and Drug
Administration received an interrogatory from the Bureau of
Personnel Investigations of the U. S. Civil Service Commission
asking him to explain allegations that some eight years before, he
and his college roommate were alleged to have attended meetings
of the Labor Youth League and a group called the Student Socialist
Society of Philadelphia which was alleged to have been under the
domination of the Communist Party. As it happened, he had.never
belonged to either organization but had attended a few meetings
because his roommate had been interested. Needless to say, he
never had belonged to the Communist Party nor did the Commission
charge him with this. Yet in interrogatories, he was asked to
give:
1. A statement of your views, past and present
concerning communism and the aims and purposes
of the Communist Party and the date of and
reason for any significant changes in these
views.
2. The names of individuals known or believed
by you to be members of the Communist Party
with whom you were associated while a member
of the Labor Youth League and the Student
Socialist Society of Philadelphia and the
extent of your association with these indi-
viduals after termination of your affiliation.
This trained chemist with a Ph.D. was so outraged by these
questions (which he answered) that he left government employment
as soon as he could, although the Civil Service Commission informed
him that he had been determined to be suitable.
B. A young woman, a recent college graduate, obtained a
position as a program analyst in the Division of Water, Supply and
Pollution Control for the Department of Health, Education and
Welfare. She received interrogatories from the Bureau of Personnel
Investigations on the usual grounds that her appointment "was made
subject to investigation to determine her suitability." The
alleged derrogatory information against her was:
1. That in 1959-60, some four years before, she
was the alleged "contact" at Swarthmore College
for a group known as the Young Socialist Club
of Philadelphia. She was also alleged to have
been on the mailing list of the Socialist
Workers Party in 1959 and to have been invited
to attend a forum sponsored by that organiza-
tion in December, 1959.
2. That her parents were alleged to have been
members of the Communist Party prior to 1953 and
her brother in 1963.
She responded to the questionnaire pointing out that she had been
Chairman of the Swarthmore Forum which was a club supported by
college funds whose purpose was to bring speakers on topics of
public moment to the campus. In her capacity as Chairman, she
had invited a member of the Socialist group as speaker and, thus,
may have been placed on the mailing list of that group, although
she had no recollection. Whether she had received an invitation
to attend a forum sponsored by the Socialist Worker's Party, she
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had no idea. (Note, that she was not even charged with attending.)
She likewise was asked to give her views on communism, past and
present. She absolutely refused. however, to give any information
concerning the allegations made against her relatives. In spite
of that, she was determined to be suitable by the Civil Service
Commission, showing that the questions and allegations about her
relatives were not really important after all.
C. Another young woman applied for the position of biologist
with the Department of Health, Education and Welfare and also
received interrogatories from the Civil Service Commission's Bureau
of Personnel L estigations. Only a single allegation was made
against her -- that, six years before, she had attended a single
gathering at the home of an individual who was alleged to.be a
member of the Communist Party. In addition, it was alleged that at
this gathering that she "reportedly organized a progressive youth
group." All, of the other information made allegations against her
father, an aunt, an uncle and a_sister, alleging that some of them
were former members of the Communist Party. The interrogatories
sent to her included the following questions:
1. The extent of your knowledge of the Communist
Party membership and activity of your father,
your father's views concerning communism and
the aims and the purposes of the Communist
Party to the best of your knowledge, and the
extent to which your father has influenced
you or attempted to influence you concerning
communism and the aims and purposes of the
Communist Party.
2. The names of the associates of your father known
and believed by you to be members of the
Communist Party or sympathetic to communism and
the aims and purposes of the Communist Party and
the nature and extent of your association with
these individuals.
This young girl, a recent college graduate, refused to answer
the questions and demanded a hearing in which she would have the
right of confrontation, and cross-examination. The Civil Service
Commission ruled, however, that since a year had expired from the
filing of her application for federal employment, it had lost
jurisdiction over her case and refused to accede to her demands or
process the matter further.
D. In the last year, a young man who had been employed for
approximately 11 months as a Management Intern in the U. S. Office
of Education received interrogatories from the Bureau of Personnel
Investigations of the Civil Service Commission asking questions in
connection with the fact that three years earlier he had received
a general discharge, under honorable conditions, from the Army.
Although the Army had never charged this young man with any plan
or intention to bring about his separation from the Army, the
Commission's Bureau of Personnel Investigations reported to him
in its interrogatories that it has "received information" that as
part of an alleged "plan" on his part to force his separation from
the Army, he had engaged in a series of misdemeanors while in the
Army. The Bureau went on to state to the young man that to the
Bureau it appeared that his actions in the Army represented a
willful intent and design on his part to deny the Army faithful
and competent service. All of this was done by the Bureau despite
the absence, as far as was known to the young man, of any such
allegations against him by the Army.
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In addition, the Bureau interrogated the young man about
private writings which he had allegedly made and left. among his
belongings, where they had been found during a search by Army
officials. Still further, the Bureau interrogated the young man
about his refusal, upon entering the Army five years earlier, to
sign the Army's oath of allegiance and obedience, despite the
fact that the young man had explained at the time that although
he considered himself a loyal citizen and would swear allegiance
to his country, he could not take an oath committing him to obey
all orders by officers appointed over him, because if he did so,
he might be required to follow orders which were in.violation of
his moral or other responsibilities.
After receiving the young man's response to the interroga-
tories, supported by statements from all of the officials in the
Office of Education who had supervised the young man during his
11 months of employment, all attesting to his diligence, suitability
and apparent devotion to duty, the Bureau nevertheless concluded
that the young man should be discharged from his employment. In
its decision, the Bureau quoted extensively from the young man's
writings which had been seized by the Army, and stated that its
quotation from those writings was to show the young man's "state
of mind."
It required an appeal to the Civil Service Commission's
Board of Appeals and Review to reverse the Bureau's decision
which would have required the office of Education to fire the
young man against its will.
E. About two years ago, security officials of the Depart-
ment of Health, Education and Welfare interrogated a young doctor
who was applying for a position in the Public Health Service
about his relationship with his father, who the security officials
said had once upon a time been called a Communist. The security
officials asked the young applicant whether he had "acted as a
courier" between his father and another alleged Communist at a
time when the applicant would have been 11 years old. As far as
we know these security officials were not in the possession of
the slightest indication or suggestion that there was any basis
for questioning the loyalty of the applicant, yet his appointment
in the Public Health Service was temporarily refused and almost
blocked entirely, apparently as a result of the fact that the
applicant had told the security officials that the kind of ques-
tions they were asking him were improper and not deserving of
response. As far as we have been able to determine so far, his
subsequent career with the Public Health Service has been
adversely affected by this situation.
F. In another case which occurred as recently as this year,
interrogatories were sent to an individual who performs services
for the Government on a contract basis, reporting to him that
security officials had received "certain unevaluated information
of a derogatory nature which, if true, might create a doubt con-
cerning your loyalty to the Government of the United States."
The individual was, as a result of that "unevaluated informa-
tion," required to respond to such inquiries as:
State whether you are opposed to the form of
government of the United States.
Include in your reply . . . a brief summary of
your views on the world-wide communist movement.
Please note hereon any comments you desire to
make regarding your loyalty to the United States
which you believe should be considered in deter-
mining your suitability for employment.
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There can be no other name for some of the questions set
forth in the foregoing pages except "fishing expeditions," in
which the Civil Service Commission is attempting to obtain the
views and information about close relatives and associates of
these employees of prospective federal. employees. Such "fishing
expeditions" should be out of bounds for a government such as
ours, dedicated as it is to democratic institutions. Implicit
in oursociety is the belief in.the value of the family unit and
the preservation of close family relationships. Obviously,
questions such as these would destroy those relationships. It
has always been considered a hallmark of totalitarian governments,
that individuals are encouraged to spy on everyone, including
relatives, because the individuals owe their only loyalty to the
state. There are all kinds of loyalty and loyalty to one's
relatives and loved ones and friends is something that a democratic
society should not attempt to destroy.
In some of the cases above, the Civil Service Commission
did find the employees suitable for federal employment. However,
the matter never ends there. In the letter of notification, two
of the employees were told on a form letter:
After careful study of all the facts revealed
by investigation, including your explanation,
the Commission has decided to take no further
action in your case other than to furnish the
results of investigation to your 'agency.
There would seem to be absolutely no justification for this last
action, even conceding that the alleged information in these cases
has some bearing on federal employment. Why there should be dif-
ferent "loyalty" or "suitability" standards for different employ-
ing agencies for someone who is working in a non-sensitive
position, is difficult if not impossible to see. It is clear that
every agency of government has different standards of control on
what information is kept confidential within their files. There-
fore, the charges and the responses from the individual applicant
or probationary employee are not guaranteed confidentiality.
Several sections of H. R. 7199 would bar this kind of gov-
ernmental nosiness. Section 1(d) would bar any request or require-
ment that any employee make a report concerning any of his activities
or undertakings unless such activities are directly within the scope
of his employemnt. Section 1(e) would bar any interrogation or
examination of any employee or applicant concerning his personal
relationship with any person connected with him by blood or marriage,
or his attitude or conduct with respect to sexual matters.
Perhaps both of these provisions should be expanded.
Section 1(d) should be amended to cover, not only employees, but
also, applicants for federal employment, and secondly, should be
amended to make it clear that it covers any report concerning any
of the employee's activities or undertakings, past or present,
unless such activities are related to his employment.
Section 1(e) should be amended to make it clear that it
covers not only oral interrogation but also covers written inter-
rogatories. It should also be amended to bar the attempt to elicit
information concerning political beliefs and affiliations outside
of those covered by 5 U.S.C. 5 118(p).
Examples of overreaching by investigators in violation of
their duties or guidelines are legion. Just for example, our
office previously culled the following questions from the trans-
cript of an interview by an Army security investigator. (As a
matter of fact this is the same investigator who started the
interview by asking the question, "For the purposes of adminis-
tering the oath, do you believe in God?")
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1. Would you say any of your opinions are against the
best interest of the United States and the form
of government that we have now?
2. Would an affirmative answer to your past actions
and opinions reflect adversely upon the best
interest of the United States Government?
3. Let's say Kennedy or Khrushchev, they make the
decision. Would Kennedy feel that your actions
or opinions are of the best interest of the United
States, or would Khrushchev?
4. Are all of your friends in favor of the democratic
form of government?
5. What do you call yourself?
6. If you can't give yourself a label, can you just
explain what you are, since you can't say you're
a Rockefeller Republican, Goldwater Republican,
Liberal Democrat?
7. What type of person is this who has this viewpoint?
How would you describe it?
8. Are you associated with people you can classify as
leftists?
9. Do you have any friends that you think might be to
the right of center?
10. Do you have any friends that are in the middle?
11. Even though they may be card carrying membeYsof the
Communist Party. Is there a possibility? Where
does your father fit in on this scale from right
to left?
12. Is he a member of the Socialist Party.
13. Are his views further to the left than yours?
14. How about your mother?
In another case an Army interviewer, again in..violation of
specific guidelines, asked a young man: (a) What books the man in
question had read. (b) Whether he had read "Lord Jim" by Joseph
Conrad. (c) Why he protested against racial discrimination in
the Washington D. C. area.
We would also like to suggest the broadening of the bill
not only to bar asking of improper questions of applicants or
federal employees, but of anyone.
In an excellent memorandum of November 26, 1962, Walter T.
Skallerup, Jr., Deputy Assistant Secretary of Defense (Security
Policy) set forth guidelines for security investigations and
adjudicative proceedings. These guidelines barred improper
inquiries into religious beliefs and affiliations or beliefs and
opinions regarding racial matters, political beliefs and affilia-
tions of a "nonsubversive" nature, opinions regarding the
constitutionality of legislative policies, and affiliation with
labor unions.
These prohibitions applied not only to inquiries of indi-
viduals who were the subject of investigations but also to
others as well -- and were not limited to federal employees.
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H. R. 7199 is directed at protecting the rights of federal
employees and applicants. We would like to suggest the serious
consideration of a similar bill setting forth similar restrictions
on federal officials in their relationships with anyone. In other
words, we see no logic in barring federal officials from asking
religious, political or racial questions of employees or appli-
cants but impliedly permitting them to ask such questions of the
public.
Inquiries and Investigations intoSexual Conduct
The Civil Service Commission contends that it has the right
to bar individuals from government employment because of immoral
conduct. On this basis, it asserts the right to make inquiries
and investigations with respect to sexual matters in order to
determine whether applicants or probationary employees are "suit-
able" for government employment.
One female government employee received interrogatories from
the Civil Service Commission's Bureau of Personnel Investigations,
primarily concerned with the fact that she was alleged to be
cohabitating with a man with whom she was not married. He
happened to have been her fiance, yet the interrogatories asked
her to admit she was engaged in an immoral relationship. Pre-
sumably, if she had admitted that, she would have been barred
from federal employment. Investigators had gone around to neigh-
bors asking them if they knew about the living arrangements of
the two individuals.
The Civil Service Commission Chairman had stated the policy
of the Commission as follows:
We reject categorically the assertion that the
Commission pries into the private sex life of
those seeking federal employment . . . We know
of no means consistent with American notions of
privacy and fairness and limitations on govern-
mental authority which could ascertain the nature
of individual private sexual behaviour between
consenting adults. As long as it remains truly
private, that is, if it remains undisclosed to
all but the participants, it is not the subject
of an inquiry.
The ACLU wrote to Chairman Macy protesting the investiga-
tion and interrogatories. We pointed out the rule of law in the
naturalization field requires that applicants for naturalization
be persons of good moral character for at least five years prior
to naturalization. We pointed out that the courts have held that
premarital or extramarital relations do not make an individual a
person of bad moral character.
In Petition of Rudder, 159 F.2d 695 (1947), it was held
that even though four individual applicants for naturalization
had lived together in adulterous relationships with women not
their wives, they were still of good moral character and were
entitled to naturalization. Judge Swan, in writing for the court,
said (page 697), "Morality is not to be measured solely by con-
ventional formality, nor are the mores of a community static.
The trend of recent naturalization decisions is to stress
stability and faithfulness in the 'marital' relationship rather
than the mere legality of ties, which everyone knows may so
easily be severed if the parties have the financial resources
to obtain a Reno divorce." Similarly, in United States v. Rubia,
110 F.2d 92, citizenship was granted to an applicant despite the
fact that he was living with a woman separated from her husband
for six months prior to the filing of his petition for naturalization.
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Judge Learned Hand, in the case of Schmidt v. United States,
177 F.2d 450, writing for the 2nd Circuit Court of Appeals, held
that an alien was entitled to citizenship even though he admitted
that he "now and then . . . engaged . . . in sexual intercourse
.with single women." Judge Hand stated (page 452), "We have
answered in the negative the question of whether an unmarried man
must live completely celibate or forfeit his claim to a 'good
moral character,' but, as we have said, those were cases of con-
tinuous, though adulterous unions. We have now to say that the
alien's lapses are casual, concupiscent and promiscuous, but not
adulterous. We do not believe that discussion will make our con-
clusion more persuasive; but so far as we can define anything so
tenebrous and impalpable as the common conscience, these added
features do not make a critical difference."
Judge Hand also cited cases previously decided in the 3rd
Circuit; United States v. Manfredie, 168 F.2d 72, in which an
unmarried man admitted that he had had occasional surreptitious
relations with a single woman for pay, and also United States v.
Palonibella, 168 F.2d 903 in which the same facts existed except
that the applicant had a wife and children living in Italy from
whom he had not legally been separated. See also Pellcone v.
Hodges, 320 F.2d 754.
In light of the high standard required for naturalization,
it was difficult if not impossible to see on what basis the Civil
Service Commission's Bureau of Personnel Investigations was
operating.
It would be ridiculous if good moral conduct meant one
thing for an application for citizenship and an entirely different
thing for holding federal employment.
Despite these principles, the Civil Service Commission
Chairman responded to the ACLU that the investigation was justified
in his view because he said other people knew of the living
arrangements. They knew of his living arrangements primarily
because of the questions and investigation of the Civil Service
Commission investigators.
It is, therefore, apparent that the policy statement of
the Civil Service Commission Chairman is not going to prevent
inquiries into attitudes or conduct with respect to sexual matters
by investigators of the Civil Service Commission.
It was disclosed in testimony before a House Appropria-
tions Subcommittee that all male applicants for jobs in the
State Department are being asked "have you ever engaged in a
homosexual act?"
From other cases reported to the ACLU's Washington office
it is clear that a number of government investigators interrogate
in what they conceive to be sexual misconduct cases with blatently
prurient interest. In one case, a woman was questioned for six
hours by two Office of Naval Intelligence investigators about every
aspect of her sex life, real, imagined and gossiped, with an
intensity that could only have been the product of inordinately
salacious minds. There is no place in federal employment for such
cruel and officious meddlers who'misuse their official positions.
Just this year, one of the Federal agencies called in a young
woman employee and informed her that the FBI had been told that
she had engaged in sexual relations with at least one man to
whom she was not married. The young lady was interrogated exten-
sively about her sexual activities and was given to believe that
she might lose her job if she were not successful in "clearing"
herself in connection with those allegations. The agency involved
showed great resistance to permitting the young lady to have the
benefit of representation by counsel. The agency finally informed
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the young lady that it would not fire her at this time, but in-
structed her that she was not to permit any man to come to her
apartment and that she was not to associate in any way with one
particular man with whom she had been friendly. Volunteer
counsel supplied to her by the ACLU has requested written clari-
fication of the agency's position on this matter, asking whether
it is indeed the position of the agency that the young lady may
not see any man in her home and may not see or associate in any
way with the particular individual named by the agency. We have
yet to receive a response from the agency.
It is not too far from that kind of sexual inquisitiveness
to ask all applicants, male and female alike, "have you ever
engaged in premarital or extramarital relations?", and thus bar,
according to the Kinsey report, the vast majority of Americans
from government service.
It is for that reason that Section l(e) of H. R. 7199 is so
important in banning interrogation or examination into attitudes
or conduct with respect to sexual matters.
Questions on Criminal Records
We note that the Civil Service Commission's Federal employ-
ment application form formerly carried a question which read as
follows:
Have you ever been arrested, taken into custody,
held for investigation or questioning, or
charged by any law enforcement authority? (You
may omit: (1) Traffic violations for which you
paid a fine of $30.00 or less; and (2) Anything
that happened before your 16th birthday. All
other incidents must be included, even though
they were dismissed or you merely forfeited
collateral.)
On August 15, 1966, Chairman John W. Macy, Jr., announced
the replacement of that question with the following:
Have you ever been convicted of an offense
against the law or forfeited collateral or are
now under charges for any offense against the
law? (You may omit: (1) Traffic violations
for which you paid a fine of $30.00 or less
and (2) any offense committed before your
twenty-first birthday which was adjudicated
in the juvenile court or under a youth offender
The ACLU has applauded that change. It shows a keen awareness of
a problem which has haunted individuals who have been arrested
through no fault of their own and against whom no criminal charges
were ever placed or who ultimately were acquitted. Also, exclud-
ing juvenile offenses committed prior to the age of twenty-one
gives vitality to the concept that juvenile court proceedings are
not to be considered convictions of crime.
Another change was also made in revising the question which
formerly required information as to whether the applicant while in
the military service had ever been arrested for an offense which
resulted in a trial by deck court or by summary, special or general
court-martial. This was changed to:
While in the military service were you ever
convicted by general court-martial?
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It is to be hoped that the kind of serious consideration given to
the arrest and military offense questions which prompted the
changes by the Civil Service Commission might be given to other
questions on the application form as well.
uestions on Past Employment
Question 27 on the Form 171 asks:
Within the last five years have you been fired
from any job for any reason?
Question 28 asks:
Within the last five years have you quit a job
after being notified that you would be fired?
These questions are an improvement over the old questions 27
and 28 on Form 57, which inquired about whether the applicant had
ever been fired or quit after such notification. However, on Form
85,`-Security Investigation Data for Non-sensitive Position," after
obtaining a federal job each employee is required to list all his
employers back to January 1,, 1937 -- almost thirty-five years ago!
Why? Employees in non-sensitive jobs should consider themselves
lucky, though. Employees in sensitive jobs have to list every
employment ever held on their Forms R6.
It should be pointed out again that the employee must certi-
fy the truthfulness and completeness of the list. He also is
warned that a false statement is punishable by law. The main pur-
pose that we have been able to discern for the required listing of
prior employment is to discharge employees who fail to list all, on
the grounds that they have filed a false and fraudulent statement.
Questions on Physical and Mental Health
Question 26 on the Form 171 asks, among other things, whether
the applicant ever had a nervous breakdown.
There is no accepted definition of what is meant by a
"nervous breakdown." This is an inquiry encompassing the present
to the far distant past. If an individual had been in a mental
institution thirty years ago, or had been under the care of a
psychiatrist; what possible difference does that make now to the
federal government?
An extreme example of how an individual is harmed by dis-
closure of prior psychiatric consultation arose in a case handled
by our Washington office several years ago. This case involved a
young inductee who was denied a security clearance because he dis-
closed on an Army form that he had consulted his university
psychiatrist several times in 1962 because he was disturbed about
his studies. This was in response to a question, "Do you have a
history of mental or nervous disorders?"
For several months even the combined efforts of a Congress-
man?s office as well as those of the Director of our Washington
Office to find out the reason for the security clearance denial
only resulted in the advice that "information developed during his
background investigation made him ineligible for this type of
assignment" and that "episodes in his pre-military service years
cast doubt upon his judgment and discretion."
Finally, we were informed that the sole reason was his
psychiatric history, in spite of the fact that the college psychia-
trist had specifically told Army investigators that nothing in his
record would suggest he might be a security risk.
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This case highlights the difficulties which an individual
can create for himself by too readily giving an affirmative answer
to questions such as No. 26 on the Form 171.
It should be noted that the Form 86 asks "Have you ever had
a nervous breakdown or have you ever had medical treatment for a
mental condition?" (Are aspirins for headaches covered by this?)
There is no reason why this inquiry should not be restricted
to asking about present psychiatric treatment or mental illness.
Psychological Testing
The American Civil Liberties Union has long been concerned
about the civil liberties implications of psychological testing.
Our interest was prompted not only by the disclosures of Senator
Ervin's Subcommittee and the House Subcommittee studying such
tests in connection with their investigations of governmental
invasion of privacy, but in the growing use of these tests in a
wide variety of governmental and private agencies. In the light
of new and multiple methods that have been created for obtaining
information about individuals, the ACLU shares the increasing
concern being expressed about the dangers to privacy that these
methods present.
We are not commenting here on the intrinsic merits or de-
merits of psychological testing. We do not have sufficient
information or knowledge to make a determination at this time.
What does deeply trouble us, however, are the kinds of questions
contained in the tests being used.
For example, 20,000 air traffic controllers employed by the
FAA were given a psychological test known as the 16 Personality
Factor Test. Several of the questions concern the political,
racial and religious opinions or associations of the FAA personnel.
Such inquiries obviously raise serious First Amendment problems
because they permit the government to intrude into the private
beliefs, not of a few selected government workers, but of an exceed-
ingly large number of government employees. In view of the strong
strictures set down frequently by our courts against such question-
ing by government in other areas, we fail to see how these protec-
tions can be denied individuals where psychological testing is
utilized. Are we to say that psychologists and their tests possess
either greater wisdom or assume a higher level of importance than
others in our society against whom constitutional restrictions
have been imposed, when the need for information has been urged?
We know the argument made by proponents of psychological
testing that privacy is not invaded because the tests are not
designed to search out the individual's answer to specific ques-
tions, but are aimed at determining his psychological attitudes.
But this ignores the fact that the individual concerned, regardless
of whether the government avows disinterest in his particular
answer, feels his privacy is being invaded when he is compelled
by his government to disclose his beliefs and innermost thoughts.
Apart from the grave constitutional questions involved
here, we also are concerned about the inhibitory impact that such
questions have on the government worker in his future political
association and activity. Even though he is promised that his
anonymity will be preserved by the coding of the replies and even
their eventual destruction, the very fact that government asks the
questions may quite understandably cause him to refrain from
joining organizations or voicing his views on political and other
controversial issues. It is the fear of government compulsion
which causes the harm.
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We wholeheartedly support the provisions of Section 1(e)
barring the use of psychological tests which would elicit infor-
mation concerning personal relationships with relatives, or con-
cerning religious beliefs or practices, or attitudes or conduct
with respect to sexual matters. We would go even further and
bar questions and testing concerning attitudes on racial matters.
or political views.
Use of Lie Detectors
It is clear that in the vast majority of cases in which lie
detector tests are given they are really involuntary. The indi-
vidual who agrees to submit to a lie detector test generally feels
that it would be disadvantageous not to submit.
The polygraph is used primarily as a psychological black-
jack. It is not that the polygraph can infallibly detect lies,
but rather that people are so frightened by them that they feel
compelled to respond. This is coerced testimony fully as viola-
tive of the principle that individuals should not be compelled to
incriminate themselves, as any confession would be under the
Supreme Court decisions in the criminal due process field.
Edward Bennett Williams expressed this well in his book One Man's
Freedom, when he said:
The right to silence is more than the mere right
to refuse to answer incriminating questions. It
is the respect which society pays to the inviola-
bility of each man's soul in an era when hypnotism,
narcoanalysis, truth serums, lie detectors and
other scientific devices are being used to force
the revelation of truths by persons who desire to
keep them secret. The right should not be cast
aside as a device exploited by hoodlums, for it is
the last bastion against an ever more omnipotent
government. It is the final shield against inva-
sion of the soul.
Some states have statutes prohibiting the use of the poly-
graph in all private employment. Some include public employment
as well. Congressman John Moss, after holding extensive hearings,
before his Subcommittee of the Committee on Government Operations
concluded:
After months of investigations, including many
hours of sworn testimony before my Subcommittee,
I am firmly convinced that there is no such
thing as a 'lie detector.' The American people
have been fooled into believing that an
electronic gadget used by an investigator with
no scientific training can detect truth or
falsehood. This is absolutely not the fact.
Yet, the federal government owns hundreds of
polygraphs and spends millions of dollars to
give thousands of 'lie detector' tests each year.
Until competent scientists complete the most
careful study of the many problems involved in
the lie detection process, the government should
halt the use of the polygraph as a 'lie detector'.
We wholeheartedly support the provisions of Section 1(f)
banning the use of any polygraph test designed to elicit infor-
mation concerning personal relationships, religious beliefs and
altitudes and conduct concerning sexual matters. The ACLU would
not stop there. We would prohibit at all levels the use of lie
detector tests as a condition of employment. We would not exclude
the FBI, the CIA or any other agency from the prohibition. And we
would include the area of political beliefs and associations among
.he proscribed subjects of inquiry.
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Right to Counsel
Senator Ervin's Subcommittee conducted a survey to determine
whether federal employees and applicants are permitted to have a
counsel, friend, or relative present at interviews pertaining to
suitability for government employment and for clearance for sensi-
tive positions. According to the results of the Subcommittee's
survey released in December, 1964, 25 agencies made a flat state-
ment that they did not discourage or deny presence of counsel,
family member or friend at interviews.
At that time, three agencies, the Civil Service Commission,
the U. S. Information Agency, and the Navy Department, either dis-
couraged counsel or denied the right to counsel, even though such
agencies as the Atomic Energy Commission, the Defense Department,
including the National Security Agency, allowed counsel, friend,
or relative at interviews. The explanation given for the Civil
Service Commission's policy by Chairman John W. Macy, Jr., was
We do not view (these interrogations) as a formal
proceeding. Our investigators are not lawyers
and we do not expect them to be versed in the
legal niceties of formal hearings. Consequently,
we have followed the practice over the years of
not permitting attorneys to be present in the
interview room. We do, however, permit the
attorney to wait outside the room and allow the
applicant to leave the room temporarily for con-
sultation if he wishes to do so before answering
any specific question.
It is a pleasure to note that the Civil Service Commission
abandoned this outrageous policy and does permit counsel to be
present. However, there is nothing in writing which can be
obtained from the Civil Service Commission in which this policy is
set forth clearly and distinctly. In addition, as recently as this
year, our local affiliate in the District of Columbia has encountered
a Federal agency which refused to permit our volunteer counsel to be
present when a young female employee was interrogated about her
alleged sexual behavior. The personnel officer of that agency
informed the ACLU that he did not even want to discuss the case
with counsel for the employee.
As early as 1932 the Supreme Court said in Powell v.
Alabama, 287 U.S. 45, 68-99 (1932):
The right to be heard would be, in many cases,
of little avail if it did not comprehend the
right to be heard by counsel. Even the intel-
ligent and educated layman . . . requires the
guiding hand of counsel at every step in the
proceedings against him . . . (Emphasis added)
Interrogations of government employees and applicants is
generally not a part of criminal prosecution with potential sanc-
tions of imprisonment or fine, but carries as a potential
sanction dismissal or barring from government employment. However,
the Supreme Court has recognized that this type of sanction is a
sufficient deprivation of a citizen's "liberty" and "property" to
require the traditional safeguards of due process, at least until
dispensed with by explicit authorization for compelling reasons.
Cf. Peters v. Hobby, 349 U.S. 331, 347 (1955); Cole v.Young,
351 U.S. 536, 546 (1956); Greene v. McElroy, 360 U.S. 474, 492
(1959).
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There are many judicial expressions of apprehension at the
dangers inherent in the compulsion of a suspect to submit to ques-
tioning in seclusion with the investigators, without the right to
be accompanied by counsel. The suspected person is apt to be
nervous and frightened. The investigators, no matter how objective,
have a perspective aimed at ferreting out indications of guilt -- a
perspective which is a necessary attribute of the investigative
function. In those circumstances, the dangers of intimidation and
misinterpretation are also quite high.
Section 6(a) of the Administrative Procedure Act, 5 U.S.C.
1005(a) provides:
Any person compelled to appear in person before
any agency or representative thereof shall be
accorded the right to be accompanied, represented.
and advised by counsel . . .
Several years ago the Federal Trade Commission made the con-
tention that Section 6(a) applies only to matters covered by ? 5
of the Administrative Procedure Act, that is, to adjudicative
proceedings. The Commission was conducting purely investigatory,
non-adjudicative proceedings to implement its regulatory function.
The Commissioner attempted to restrict the right to counsel of
witnesses compelled to appear. However, an injunction was granted
against such restriction. Wanderer v. Kaplan, 12 Pike & Fischer,
Ad.L.2d 837 (D.D.C., Oct. 20, 1962).
The Court in the Wanderer case stated:
The court rules that Section 6(a) applies to
investigative as well as to adjudicative pro-
ceedings . . . 12 Pike & Fischer, Ad.L.2d at 838.
The legislative history of Section 6(a) makes it clear that
it was intended to apply in investigatory proceedings. The report
of the House Judiciary Committee expressly stated:
The section is a statement of statutory and
mandatory right of interested persons to
appear themselves or through or with counsel
before any agency in connection with any
function, matter or process, whether formal,
informal or public or private. (S. Doc. 248,.
79th Congress, 2d Session, 263 (1946).
It would seem difficult to believe at this stage of constitutional
development that any agency of government would attempt to discour-
age or deny counsel during an interrogation, yet it appears that
such discouragement and denial continues. In light of the deci-
sions of the Supreme Court in Miranda v. Arizona, 16 L.Ed. 694
(1966) and Escobedo v. Illinois, 378 U.S. 478 (1965), there can be
no doubt that secret interrogation is one of the most dangerous
periods for any individual with respect to abandoning legal rights
and placing himself in jeopardy. Even though only a job may be
at stake in "interviews" (as they are called) conducted by investi-
gators of government agencies, there may be other repercussions,
as well,. including criminal prosecutions by reason of an indivi-
dual too easily answering incriminating questions without being
aware of their import.
Even though the right to counsel may be assured. investi-
gators have techniques to discourage individuals from having
counsel present. For example, in an interview conducted by two
Office of Naval Intelligence investigators, they told the one
being interrogated when she raised the question of obtaining an
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attorney: "I do want to tell you that if you insist on being repre-
sented by counsel, we would have to put it in the record and it
could possibly be used against you." Needless to say, that woman
needed an attorney desperately, as shown by the highly improper
questions which these investigators asked her during the six-hour
interview.
If 9 1(k) of H. R. 7199 is adopted, it is to be hoped it
will end any further infringements of the Sixth Amendment right to
have the assistance of counsel.
Right to Freedom of Speech
Many executive agencies have issued regulations on "Employee
Responsibilities and Conduct." The Uniform Regulations issued by
the Department of State, Agency for International Development and
United States Information Agency, (Part 10, Title 22, Code of
Federal Regulations, effective April 20, 1966), include some rather
surprising sections infringing on right of free expression of
employees of these three agencies.
Section 10.735-211, "Expression of Thoughts and Views"
contains the following provisions:
(d) Lectures and interviews abroad -- . . .(2) Restric-
tions. An employee abroad may not publicly speak
on, or discuss, issues on official matters outside
his fields of responsibility. Security regulations
are to be closely observed in the dissemination of
any information to the general public.
(3) Topics to be avoided. An employee abroad may
not allude in public speeches or newspaper inter-
views to disputes between governments, to active
political issues in the United States or elsewhere,
or to any matter pending at any overseas post,
except by the direction or with the authorization
of the ambassador, or his designee . . . .
(f) Public criticism of another employee. An employee
shall not publicly criticize any other employee of
the United States. If an employee finds it neces-
sary to criticize, or prefer charges against, any
other employee, he shall do so only in a personal
and confidential letter to the head of the overseas
establishment, or the appropriate personnel office
in Washington.
(g) (3) Correspondence . . . . (i) In corresponding
with anyone other than the proper official of
the United States with regard to the public
affairs of a foreign government or active politi-
cal issues in the United States, an employee shall
use discretion and judgment to ensure that neither
the United States nor the employee will be embar-
rassed or placed in a compromising position.
(ii) An employee abroad should not correspond
directly on such matters with officials of
other agencies but should have such correspond-
ence cleared in Washington for transmission to
the interested agency. This does not affect an
employee's right to correspond with a Member of
Congress (5 U.S.C. 652(d)). Inquiries on such
subjects from persons who are not employees of
the United States should be acknowledged and the
inquiries referred to the appropriate office in
Washington.
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There may be some justification for setting some guidelines for em-
ployees of these three agencies, in what they should say and write
as responsibilities of particular jobs. But even if that were true,
certainly these regulations go far beyond that in infringing on
First Amendment freedoms of such employees. Each of them would be
subject to constitutional challenge in the event that any employee
were dismissed for violation of them.
We do not know if similar restrictions exist in regulations
for other agencies. If they do, this committee should be greatly
concerned. We do not find in any of the provisions of H. R. 7199,
specific protections for government employees in the right to free-
dom of speech and press. We urge the Committee to give serious
consideration to amending the bill in order to protect First Amend-
ment rights of federal employees.
Coercion of Employees in Respect to Unrelated Duties
Section 1(b) of the bill bars agencies from requiring or
urging attendance by employees at meetings in respect to any matter
other than the performance of their duties.
Section 1(c) bars attempts to require employees to partici-
pate in any activities or undertakings not directly within the
scope of their employment.
Section l(d) would bar requiring reports of any employees
concerning activities or undertakings not directly within the
scope of their employment.
All of these are eminently worthwhile in preventing attempts
at indoctrination of government employees. Government employees
are still American citizens; they are not sheepi they should be
able to pick and choose their own exposure to ideas. Under no cir-
cumstances should they be subjected to any kind of governmental
compulsion, direct or indirect, to force them to participate in
any assemblage, discussion or lecture unassociated with the duties
of their jobs.
Section 1(g) would bar attempting to force employees to
support any candidate, program or policy of any political party by
personal endeavor or contribution.
Section 1(h) would bar attempts to coerce employees to
contribute to the purchase of United States Savings Bonds or to
make charitable contributions.
Both of these prohibitions are also excellent and receive
our firm support. We have had a number of cases reported to us
of the attempts to coerce employees as well as servicemen to pur-
chase U. S. Savings Bonds in order to make creditable records for
their superiors. This is the kind of overbearing pressure to
which no federal employee should be subjected.
We also endorse Sections 1(i) and 1(j) which would bar
requiring the disclosure of financial assets by most government
employees.
Need for Supplementary Legislation
There is one major area vitally related to the rights of
privacy covered by H. R. 7199 which the bill does not deal with,
and to which we hope the members of the Subcommittee will turn
their attention. Although the bill would ban interrogations of
employees and applicants for employment about race, religion,
national origin, personal relationships with any person connected
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with him by blood or marriage, or attitude or conduct with respect
to sexual matters (and the bill could be broadened to proscribe
interrogation about political beliefs and associations as well),
the bill does not specify that such matters may not form the basis
for decisions as to whether or not to hire or continue the employ-
ment of an individual, and the bill does not forbid Federal agencies
from making independent inquiries into such matters.
We believe that the basic premise of H. R. 7199 is that the
matters just enumerated are none of the Government's business, and
that is why the individual's right to privacy with regard to such
matters should be preserved to the extent that the individual
should not be interrogated on those matters at all. We believe
that it follows from that premise, with which we agree, that such
matters should not be criteria for or against hiring or any other
personnel decision, and that no independent investigation of such
matters should be made.
Indeed, if the Government is permitted to continue to make
investigations into such matters, and conceivably to make deci-
sions on the basis of them, we would have the anomalous situation
of the Government collecting and acting upon derogatory allega-
tions about an individual while being forbidden by this Act from
confronting the individual with the derogatory allegations and
seeking his refutation or explanation.
We urge the Subcommittee, therefore, to give priority con-
sideration to supplementary legislation which would fully protect
Government employees against the violations of privacy involved
in any Government investigation into or interest in the matters
discussed above.
The Chairman and the Subcommittee are to be thoroughly
congratulated for the fine work they have done in connection
with H. R. 7199. The numerous co-sponsors of the companion
bill in the Senate are to be congratulated as well.
We have urged that this bill be amended in some rz- pects
and broadened in others, in order to protect the rights of all
American citizens in the enjoyment of their constitutional
rights and to prevent unwarranted governmental invasions of their
privacy. We believe that the basic import and most of the
details of this bill are sound? and that passage of the bill
would mark an important step forward for our American democracy.
No one has better expressed what is at stake here than
did Justice Brandeis, forty years ago, dissenting in Olmstead v.
United States, 277 U.S. 438 at 478:
The makers of our Constitution undertook to
secure conditions favorable to the pursuit
of happiness. They recognized the signifi-
cance of man's spiritual nature, of his
feelings and of his intellect. They knew
that only a part of the pain, pleasure and
satisfactions of life are to be found in
material things. They sought to protect
Americans in their beliefs, their thoughts,
their emotions and their sensations. They
conferred, as against the Government, the
right to be let alone -- the most comprehen-
sive of rights and the right most valued by
civilized men.
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Finally, in closing, we want to pay tribute to the former
Director of our Washington Office, Mr. Lawrence Speiser, a dis-
tinguished lawyer who testified on behalf of the ACLU in support
of bills similar to H. R. 7199 in previous Congresses, and whose
research and experience are responsible for most of the substance
of our statement here today.
Thank you.
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THE WALL STREET JOURNAL, MONTDAY, MAY 3, 1971
On Communkatioms and Common Sense
By DAVID C. ANDERSON
Presumably It Is coincidence that two of
this spring's more prominent developing con-
troversies-one over the role of the electronic
media In a democracy, 'the other over the in-
creasing amount of information collected and
stored by government about individual citi-?
zens-are reflected in two recent books..
"The Information Machines" (Harper &
Row, 359 pages, $8.95) by Ben Bagdikian Is
the admirably researched product of a Rand
Corp. study of the impact of developing tech-
nology on journalism. "The Assault on Pri-
vacy" (University of Michigan Press, 333
pages, $7.95) by Arthur R. Miller outlines the
dangers to privacy and freedom from ad-
vances in Information-handling technology.
The books Illuminate Issues not always ap-
parent In the public controversies; most
strikingly, they reveal that the two subjects
are related In fundamental and disturbing
And he too notes that the future of infor-
mation handling is bound to be more sophisti.
cated and more disturbing. The widespread
growth of computers to manage things like
airline ticketing and credit card'sales means
that an Individual+s moves and purchases go
down on permanent tile In computer memo-
ties and can be printed out in a few minutes.
More alarming are the possibilities that
might attend the widespread use of optical
scanners to monitor the addresses of mail
passing through the post office, or to record
the license plates of cars passing a given
point on the highways. Both activities have
been considered recently by government
agencies.
Notably, each author alludes to the area of
technology considered by the other. Inevita-
bly, they both suggest, the advancing technol-
ogies of communications and information are.
bound to marry In a system of awesome pos-
sibilities. .
Mr.- Miller points out, for example, that
systems of computer time sharing, in which
disparate users share the services of a cen-
trally located computer, are set up along the
lines of a cable television network, and could
easily be .integrated Into such a national sys-
tem. -
Mr. Bagdtklan points out that cable pene-
tratioh of every American home would mean
that government computers could monitor the
entertainment - and Information habits of
every single family. If popular opinion were
sampled via the new communications sys-
tems, each response might be recorded for fu-
ture reference; If,the President gave a tele-
vised speech, he could find out who watched
and who didn't, and who turned It off before
he was finished.
A Serious Question
The question implicit In all of this-and in
the current controversies over the media and
government surveillance-is a serious one for
a modern democracy. For the need for Infor-
mation by citizens about the state of their
country and the world is basic to democratio
government. % .
In fact, Mr. Bagdikian points out, "news
as it Is thought of today-Information about
distant events transmitted speedily to a popu-
lar audience-is a novelty in history."
For centuries men were ruled by kings,
medicine men, priests and others who "like
the Lowells, spoke only to themselves or to
God about the regulation of society." The idea
that the whole population should share the o-
litical and social information necessary or
regulation arrived only with the very rec nt
notion that the people should share In the reg-
ulation itself.
The same might be said for the need of
democratic government to amass information
about its citizens; the need for the census was
foreseen by the architects of American gov-
ernment; sound information would seem even.
more necessary to the task of governing as
the population grows larger and more dl-
'verse, with more complex needs.
And yet, as the books reflect, the pursuit of
ever faster, more sophisticated methods of
collecting, managing and disseminating infor-
mation is perilous. And most frustrating, one
concludes after reading them, the perils are
not, easily understood. .
For one thing, the most obvious peril-that
the n6v technologies could be seized by the
power-mad and used to engineer a repression
-does not seem to be the most possible.
An Electronics Expansion
The current communications equipment of
the average American home-a radio, a tele-
phone and a television set capable of receiv-
ing over-the-air broadcasts-is bound to look
quite primitive In several years, according to
Mr. Bagdikian, who Is an assistant managing
editor of The Washington Post. He envisions
the rapid expansion of cable television to the
point where cable communications penetrate
nearly every. American home, rivaling the
telephone system In scope.
This would permit expansion, of the num-
ber of channels the home viewer might re-
ceive. In addition to the entertainment offered
now by a few over-the-air networks and local
stations, the home entertainment and infor-
mation console would allow the viewer to
order a variety of communication services by
punching a few keys.
The cables would also give the viewer the
ability to feed back responses to the origina.
tor of televised material. This would permit
audience participation in entertainment and
public-affairs programing. It could even re-
sult in voting by television and other forms of
massive public participation in' ongoing
events of intense national Interest, sincepub-
lic reaction to them could be determined with
some precision in a matter of seconds.
,Indeed, Mr. Sagdikian writes, "this will be
to politics what nuclear fission was, to physi-
cal weapons, an increase In power so great
that it constitutes a new condition for man-
kind. The new communications will permit
the accumulation of a critical mass of human
attention and impulse' that up to now has been
inconceivable."
As for the parallel development of infor-
mation gathering and storage, Mr. Miller,
who teaches at the University of Michigan
Law School, does a thorough job of summariz-
ing sources of current worry; The huge gov-
ernment agencies with their Interest in com-
puterizing the Information they routinely
gather on citizens and pooling it in central
data banks; the apparent Insensitivity of
some government Investigators to individual
rights and of some government bureaucrats
to everyone's right to privacy; the growth of
private credit bureaus and their relatively
tree dissemination of salient details about
People's lives; the vulnerability of both the
government and the private computerized
systems to mechanical or human error or to
malevolence and their limited capacity, to
keep stored Information confidithtial.
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It it is true, as the recent disclosures of
Army spying suggest, that the technologies
can make democracy more vulnerable to the
foolish or the unscrupulous, it is also true that
technologies could make the foolish or the un-
scrupulous easier to spot before they are at-
lowed to cause too much damage as, in a
sense, the discovery and widespread dissemi-
nation of the Army spying. story is beginning
to do.
Furthermore, Mr. Bagdikian observes, the
power of the communications media Involves
the credibility of those who use it, however
sophisticated the media themselves may be-
come. President Nixon may use television to
bring his views to the people more than other
Presidents, but a lot of the people apparently
still don't believe him, and in fact, an embar-
rassing percentage prefer to watch Doris
Day.
As for the information handling advances,
Mr. Miller Is quite right that they constitute a
grave threat to our privacy,' and that we .do
have a right to privacy that must be taken se-
riously.
But how is an assault on privacy an as-
sault on freedom? It is in certain indirect and
intangible senses, of course, and these are
deeply disturbing, but it is also important to
note the distinction between an official threat
and an indirect, intangible one. It is outrag-
ing to think that minor bureaucrats in large
agencies know a lot of intimate details about
us, which they might be tempted to misuse.
But the fact remains that they cannot do so
routinely unless we give our consent, as a
society, to their doing so.
Here again, the apparent public revulsion
to the reports of Army and FBI surveillance
of civilians suggests that we are not about to
do that yet. This does not mean that the pow-
ers of information cannot be abused by some
bureaucrats in some stituations, but it does
mean that computers do not in themselves
create a full-blown police state.
It the fears of the alarmists are not all that
valid, however, there is still legitimate reason
for worry about the new technologies. And
this more valid reason is more difficult for us
to confider, for it does not Involve the tempta.
tions of the new technologies to the powerful
so much as their effects on all of us.
The little-contemplated fault common to
both the communications and the information
technologies Is that they encourage us to ac-
cept. distorted or selective ? realities as the
truth.
Capsulizing events for electronic media is
a far cruder process than writing about them
thoughtfully and precisely; the oversimplifi-
cation of complex issues is nearly Inevitable..
(Though Mr. Bagdikian a bit too sanguinely
believes that the increased information-han-
dling capacity of future TV could ease this
problem.)
If nothing else, the resulting falseness of
impressions can produce much confusion.
Last fall most journalists and politicians, In.
eluding the President and the Vice President,
were pursuaded that the U.S. was experienc-
ing a furious reaction of the hardhats against
the longhairs. But the results of the Novem.
ber voting showed that the actual patterns of
popular feeling were much more complicated,
In undramatic ways that wouldn't have come
across well on the evening news.
Even less obviously, Mr. Bagdiklan sue.
gest.s, speedy communications have reduced
the time men normally must take to think
through the meaning of events and to reach a
sound perspective from which to make dect.
slons. What better evidence of this than tha
recent public reaction to the Calley convictior,
-fostered in part by media coverage of the
case-and the President's unfortunate deci.
sion to Intervene openly on the basis of the.
short-lived public response?
Computers also oversimplify reality in
their need to reduce experience to quantifl;t-
ble bits of information.. Like television cam-
eras, their product may reflect the subjective
feelings of the people who operate them.
And this may work its effects 'on how our
decisions are made too. People who feel like
criticizing the government may feel con.
strained not to do so, not only because they
feel the record of their dissent might one day
be used against them directly, but also be.
cause records of their behavior may not re-
flect their feelings accurately or fully.
More basically, the capacity of the com-
puter, to deal with quantifiable information
may encourage the temptation to quantify
human problems that really can't be quanti.
fied, in the unrealistic hope of finding solu.
tions to them by doing so. Such activity is al-.
ready well en6ouraged? by the recent decades
of the social-architecture approach to solving
domestic problems.
A Subtle Erosion
So. In the end, the tonclusion one draws
from Messrs. Bagdikian and Miller is that the
new communications and information technol.
ogies do not directly portend our degeneratior.
to anarchy and dictatorship, as some have
predicted, but that they do portend something
possibly as serious: As the technologies grow
more pervasive and sophisticated, they may
have the subtle effect of eroding the amount
of common sense we normally bring to our
decisions, either as leaders, or as voters.
Common sense-the ability to see that im-
portant problems are rarely simple problems,
that compromise Is often as unsatisfying as it
Is necessary, that there.are some things men
and their governments can do and some
things they can't-has served us tolerably
well In the past. In fact, car capacity as a so-
ciety for common sense may be a great
source of our relative strength to date.
It Is not true, of course, that ignorance is
better than partial and distorted Information.
But it Is very unfortunately true that partial
and distorted information can be as danger-
ous as Ignorance. It will be so unless ro:op!c
use it with the utmost perspective and th=ere.
tlon, the deepest understanding that even tha
facts as assessed and presented by our l:ttest
technologies are never quite simple or clear,
and that our Insights and intuitions may be as
Can we attain this human +e, ` l ro aii ie
Why does Attorney General Mitch-
ell continue to insist that he has the
right to eavesdrop on U.S. citizens in
? national security cases without the
court approval normally required in
other ' eavesdropping situations?
Doesn't he see the risks inherent in
such a policy to democratic traditions,
whatever the practical considerations?
The answer to this disturbing ques-
tion, so far as we can determine from
Mr. Mitchell's aides, is not very. reas-
suring. The Attorney General appar-
ently believes that his doctrine of unac-
countable power does not pose a threat
to democracy simply because he be-
lieves himself to be an honorable man,
a lawyer with the deepest respect for
his country and its traditions. Why
can't we accept his good will as insur-
ance enough against the possible mis-
use of powers granted to him?
More disturbing still, this somewhat
naive idea seems to be spreading, and
to other powerful men who also should
know better. For example, in a rare
public speech recently, Richard Helms,
director of the Central Intelligence
Agency, declared truly enough that in-
telligence is vital to our defense, but he
added that if the machinations of mod-
ern intelligence work, seem to create
the potential for undermining demo-
cratic traditions, the nation would just
have to "take it on faith that we too
are honorable men devoted to (the na-
tion's) service."
Now it is not enough to call these
statements naive, though that is ob-
vious enough: Honor and good inten-
tions are not the same as intelligence,
understanding or even sanity. History
is littered with the unfortunate acts of
the stupid, the ignorant and the mad
who abused their powers wretchedly in
pursuit of goals which seemed honora-
ble 'to them.
That men like the Attorney General
and the director of the CIA should be
tempted to such thoughts, however,
should be seen in a.. deeper light. It is a
great insight of the pest few years that
modern changes in the world, and es-
pecially advances in technology, have
given men powers which tax their hu-
manity. Science in effect has outdated
the rules by which we have tradition-
ally conducted our affairs. Leaders
who must use the new powers find
themselves faced with staggering
moral dilemmas no man should have
to resolve.
A notable example of such change
is nuclear weaponry, which makes it
possible for one man to destroy all of
human civilization. What is worth the
use of such power.? But more recently,
as Mr. Anderson notes in an article on
this page, it is becoming clear that ad-
vances in 'communications technology
are giving men powers which, perhaps
more subtly, tax their humanity too.
This has serious implications for a
powerful state that is also a 'democ-
racy, a form of government that gives
high value to the humanity of all its
citizens and the morality of its role in
the world. For the logic of giving more
and more men- in a democracy powers
too great for any human being to wield
with the wisdom necessary to their use
implies, inevitably, the decline of these
values.
As the technologies grow more per-
vasive, then, men in power should take
with utmost seriousness their own atti-
tudes in using them. Ultimately the
new powers require a kind of humility
in their masters, an understanding
that they may not be aware of all the
implications of what they do, a willing-
ness to seek the advice of others in ex-,
?ercising their power, a ready accep-
tance of review by the objective and
the informed. . -
Now we have no doubt that for Mr.
Mitchell and Mr. Helms to accept this
notion fully and act orl it would compli-
cate their lives tremendously. But at
the same time we think it imperative
that the idea at least be better under-
stood: The modern world makes the
idea of accountability for power in a de?
mocracy more important than ever,
however upstanding the people who
use it. To ignore this idea is at best re-
markably shortsighted; at worst it in-
volves an arrogance no free society
can afford for long.
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