JUSTICE'S PROPOSED AMENDMENTS OF MARCH 28, 1978 TO S. 1845, A BILL, 'TO PROTECT THE RIGHTS OF INDIVIDUALS GUARANTEED BY THE CONSTITUTION OF THE UNITED STATES AND TO PREVENT UNWARRANTED INVASION OF THEIR PRIVACY BY PROHIBITING THE USE O

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R000800030102-8
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 5
• Document Creation Date: December 20, 2016
• Document Release Date: November 16, 2006
• Sequence Number: 102
• Publication Date: April 4, 1978
• Content Type: MF

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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON. D.C. 20503
LEGISLATIVE REFERRAL MEMORANDUM
TO: Legislative Liaison Officer
Department of Defense
Central Intelligence Agency
Department of State
Department of the Treasury
SUBJECT: Justice's proposed amendments of March 28, 1978 to S. 1845,
a bill, "Ib protect the rights of individuals guaranteed
by the Constitution of the United States and to prevent
unwarranted invasion of their privacy by prohibiting the
use of polygraph type equiprrent for certain purposes."
The Office of Management and Budget requests the views of
your agency on the above subject before advising on its
relationship to the program of the President, in accordance
with OMB Circular A-19.
A response to this request for your views is needed
no later than noon, Wednesday, April 12, 1978. IF NO COMMENTS ARE
RECEIVED BY THIS TIME, WE WILL PRESUME CONCURRENCE IN
THE PROPOSAL.
Questions should be referred to Bob Carlstrom
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the legislative analyst in this office.
Bernard H. Martin for
Assistant Director for
Legislative Reference
Enclosures
cc:
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 A8515tANT ATIOKNL=Y {G MNCKAL
LEGISLATIVE AFFAIRS
flr iartment of 3Ius#irr
as ingtan. DA. 2115311
Mr. James McIntyre
Director
Office of Management and Budget
Washington, D. C. 20503
Dear Mr. McIntyre:
This letter is in further response to a request from
Congress for comment on S. 1845, a bill "to protect the
rights of individuals guaranteed by the Constitution of
the United States and to prevent unwarranted invasion of
their privacy by prohibiting the use of polygraph type
equipment for certain purposes."
Discussions between my staff and the office of
Legislative Counsel of the Central Intelligence Agency
have resulted in agreement on revised language that the
Administration could submit to remedy a number of pro-
blems raised by various Departments and Agencies concerning
the bill's prohibition on polygraph testing in employment.
We would change section 247(b)(1) to read:
"(b)(1) No officer or employee of the United States
nor any person acting for or on behalf of the United States
shall require or request any officer or employee of the
United States, or any individual seeking employment as an
officer of employee of the United States, to take any poly-
graph test in connection with his or her services or
duties as an officer or employee, or in connection with
such individual's application or consideration for employ-
ment, except that such polygraph tests may be administered --
(A) in the course of an investigation by a law
enforcement agency of an alleged criminal act com-
mitted by an officer or employee of the United States,
provided that--
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(i) there is probable cause to believe
that such officer or employee has committed
a criminal act;
(ii) such officer or employee freely
and voluntarily consents to the polygraph
test after being informed of the nature of
the allegations against him, his privilege
against self-incrimination, and his right to
counsel; and
(iii) any such employee's refusal to
submit to a polygraph test may not be used
in any manner against him, either in the
criminal investigation or in future personnel
action, and no record of the polygraph test
or the refusal to submit to it may be main-
tained outside law enforcement files; and
(B) to officers or employees of, persons assigned
or detailed to, or affiliated with, any agency or
department of the United States, as well as applicants
or candidates for such positions or affiliations, if such
persons actually perform or would perform national
security, intelligence, or counterintelligence func-
tions or support or security duties related to such
functions, and to contractors selected by any such
agency or department to perform such functions or
duties."
We would also change section 247(b)(2) to read:
"(2) Except as permitted by subsection (b)(1)(B)
of this section, no person engaged in any activity in
or affecting interstate commerce, and no individual acting
under the authority of such person, shall--
(A) require or request any individual
seeking employment in connection with such
business or activity to take any polygraph
test in connection with his application or
consideration for employment; or shall accept
or use the results of any polygraph test in
connection with such application; or
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(B) require or request any individual
employed by such person to take any polygraph
test in connection with his or her services
or duties as an employee; or shall accept
or use the results of any polygraph test,
unless the employee freely and expressly
requests to take such a test and the request
is not a product of coercion or intimidation
by the employer."
We believe that the concern expressed by the Department
of State in its letter of December 29 has been met by the
insertion of a comma between "national security" and
"intelligence" in the sixth line of paragraph 247(b)(1)(B).
This makes it clear that national security functions alone
may be the basis for polygraph testing in appropriate
circumstances, and that such functions need not be related
to an intelligence or counterintelligence mission. We
believe that the language proposed here is more precisely
tailored to limit government polygraph testing to those
areas where it is clearly necessary than the broader
formulation proposed by the Department of Defense.
I hope that these revisions meet the concerns that have
been expressed within the Administration about the bill, and
that we can now submit our views to Congress.
Sincerely,
2 Kam.- //I klw[.y
Patricia M. Wald
Assistant Attorney General
Office of Legislative Affairs
cc:
Acting Legislative Counsel
Central Intelligence Agency
Douglas J. Bennet
Assistant Secretary for
Congressional Relations
Department of State
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Werner Windus, Director
Legislative Reference Service
Department of Defense
Robert E. Carlstrom
Legislative Analyst
Office of Management and Budget
Criminal Division
Federal Bureau of Investigation
Drug Enforcement Administration
Civil Division
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