SCREENING FEDERAL EMPLOYEES A NEGLECTED SECURITY PRIORITY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85M00364R002204190005-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 121
• Document Creation Date: December 20, 2016
• Document Release Date: January 15, 2008
• Sequence Number: 5
• Publication Date: January 1, 1983
• Content Type: REPORT

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Screening
Federal Employees
ANegleeted Securw Priority
by
DAVID MARTIN
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HezIta PoundatiaQ
Board of Trustees: Hon. Frank Shakespeare (Chairman), Hon. Ben B.
Blackburn, Dr. David R. Brown, Joseph Coors, Hon. Shelby Cullom Davis,
Midge Decter, Robert F. Dee, Hon. Jack Eckerd, Edwin J. Feulner, Jr., Joseph
R. Keys, Dr. Robert Krieble, Lewis E. Lehrman, J. F. Rench, Hon. William E.
Simon, Jack Wrather. President: Edwin J. Feulner, Jr.
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Screening;
Federal ]Emmaployees
ANegleeted SecurityPriorily
by
DAVID MARTIN
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DAVID MARTIN served for almost 20 years on the staff of the
Senate Subcommittee on Internal Security. From 1959 until the end of
1970, he was attached to the staff of the late Senator Thomas J. Dodd
of Connecticut, the vice-chairman of the Subcommittee. In this posi-
tion, his portfolio as a staff assistant embraced internal security,
foreign policy, and national defense. From 1971 until the end of 1978,
he was senior analyst for the Internal Security Subcommittee and wrote
many of its reports, including its final report on "The Erosion of Law
Enforcement Intelligence and Its Impact on the Public Security." He is
the author of two books on wartime Yugoslavia and of many articles on
foreign affairs and problems of internal security. His last book, pub-
lished by the Hoover Institution Press in 1978, was entitled Patriot or
Traitor: The Case of General Mihailovich. Since retiring from the
Senate, he has served as a consultant for the Standing Committee on
Law and National Security of the American Bar Association.
Library of Congress Card number 83-47643
ISBN 0-89195-034-6
? 1983 by The Heritage Foundation
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Table of Contents
Introduction ix
The Sad Plight of the Federal Employee Security Program ix
The Situation in the Department of Defense xv
Recommendations xvi
Chapter 1
The Need for Personnel Security
Chapter 2
The Anatomy of the Federal Employee Security Program
7
Chapter 3
The Erosion of Employee Security
13
Court Rulings and Self-Imposed Restrictions
15
The Destruction of the Domestic Intelligence Data Base
23
The Devaluation of the National Agency Check and the Back-
ground Investigation
28
Closing Down the Civil Service Commission's SRAS
31
The Freeze on the Exchange of Domestic Intelligence
37
Suitability: The Dilemma of the Adjudicator
38
Cutting the Costs of Personnel Security: A Study in False
Economy
44
The Jane Doe Decision
47
Chapter 4
Personnel Security Procedures in Individual Agencies
51
The Department of Defense
51
The Intelligence Agencies and the FBI
60
The Departments of State, Justice, and Energy
62
Chapter 5
Three Areas of Special Weakness
Waiver of Pre-Employment Field Investigations for Sensitive
Positions
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Abandonment of Reinvestigations 71
Americans Employed by International Organizations 72
Chapter 6
Measures Necessary to Resuscitate the Program 77
The GAO's Recommendations 77
Changes Proposed by the Interagency Task Force 77
Essential Requirements I: Quick Fixes 81
Essential Requirements II: Long-Term Problems 87
Appendix I
Appendix II
Appendix III
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Preface
This monograph is the product of several years of continuing, if in-
termittent, research. The initial impetus for the study was provided by
the alarming information on the state of the Federal Employee Security
Program developed in the course of hearings held by the internal secu-
rity unit of the Senate Subcommittee on Criminal Laws and Procedures
in 1978.
The study is based in large degree on an extensive reading of the avail-
able literature and official documents. But the principal contribution
came from numerous conversations with people who have served in vari-
ous capacities in the Federal Employee Security Program-as investiga-
tors, as directors or recent directors or officials of the personnel security
programs in federal departments and agencies, or as officials and recent
officials of the FBI and the Department of Justice.
Two previous drafts were submitted to the Office of Personnel Man-
agement (OPM) and the Department of Defense (DOD) for their com-
ments and correction. Relevant portions of the drafts were also submitted
for the scrutiny of the State Department, the Justice Department, the
Energy Department, and the CIA. Copies were also submitted for the
critical review of a dozen or more old-time professionals, including high-
ranking officials-some of them current, some of them recent-in vari-
ous sectors of the Federal Employee Security Program. The fact that an
official reviews a paper for accuracy does not of course signify that he
endorses all of the estimates and opinions to be found in the paper. But
I think it worth noting that the old-time professionals who were con-
sulted, without exception, expressed the conviction that the paper did
not overstate the seriousness of the situation.
All members of Congress, even the most liberal, would agree that the
government has the right-indeed, it has the responsibility-to insti-
tute procedures for assuring itself that those who are going to fill sensi-
tive positions in government are of good character and unquestionable
loyalty to the United States. One has to wonder, therefore, how Con-
gress could have permitted the massive, year-by-year erosion of the Fed-
eral Employee Security Program without interceding to stop the rot.
Perhaps none of the members were really aware of how bad the situation
had become. Whatever the reason, it is my hope that this preliminary
study will inspire Congress to embark upon a comprehensive investiga-
tion for the purpose of establishing all the facts and exploring the possi-
bility of legislative remedies.
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Recently there have been three encouraging developments. In Janu-
ary 1.982, on the direction of General Richard G. Stilwell, Deputy Un-
dersecretary of Defense (Policy), the Department of Defense set up a
high-level panel to review the entire question of personnel security in
the DOD. The panel was chaired by David O. Cooke, Deputy Assistant
Secretary of Defense (Management), who has had extensive experience
in the field of personnel security. Toward the end of April, the panel
submitted a report, which examines all the Department's personnel se-
curity programs in a refreshingly objective manner and recommends a
series of improvements in DOD procedures-some of which parallel the
recommendations made in. this monograph. These recommendations
are now under study, and there is reason to hope that at least some of
them will be acted on affirmatively.
The entire question of personnel security procedures has also been
undergoing examination in the Office of Personnel Management at the
initiative of OPM Director Donald J. Devine. Here, too, there is reason
to hope that the arduous study of recent months will produce a number
of significant improvements despite the continuing constraints imposed
by court decisions and budgetary considerations.
The third development that holds promise for the future is FBI Direc-
tor William Webster's statement to the Senate Subcommittee on Secu-
rity and Terrorism that the FBI is engaged in a rewriting of its domestic
intelligence guidelines with a view to removing some of the more serious
constraints resulting from the Levi guidelines. Director Webster assured
the Chairman, Senator Jeremiah Denton (R-Ala.), that the Subcom-
mittee would be given an opportunity to examine the revised guidelines
and comment on them before they were finalized.
It is my hope that those involved in the reevaluation of our personnel
security programs in DOD, OPM, and other government agencies have
found my research and suggestions helpful.
Some of the proposals made here may infringe somewhat on a purist
view of privacy rights and First Amendment rights. The proposals, more-
over., may offend rigid civil libertarians. The far left, on the other hand,
rejects out of hand the need for an employee security program of any
kind. What seems undeniable, however, is the need to restore the confi-
dence that federal employees in sensitive positions can be trusted. If the
proposals in this study are not acceptable, then other means must be
found to reconstitute an effective Federal Employee Security Program.
Without naming any of the many people who assisted me, I would like
to thank them all for their patient acceptance of my repeated demands
on their time. I will, however, make one exception to this general rule
because I would like to take this opportunity to pay.a personal tribute
to the late Walter ("Wally") I. Waldrop, who served as Deputy Director
of the Personnel Investigations Division of the Civil Service Commission/
Office of Personnel Management from 1967 to 1979 and who died on
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z d e -
June 16, 1982. His wisdom and judgment are reflected at many points
in this study.
Like so many others who worked in the field, Wally was a dedicated
personnel security professional. He knew what good personnel security
requires and knew that the government's program was being gutted on
a year-by-year basis. Some of them offered resistance-without any ef-
fect-to the combination of forces which appeared to be irresistibly de-
stroying all the defenses that had been built up over a period of years.
Others retired early out of a sense of complete frustration. Still others
ate their hearts out and developed ulcers or other stress-related physical
symptoms. Wally was one of the best of them all.
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Introduction
The Sad Plight of the Federal Employee Security Program
The 1930s and the World War II years were years of appalling inno-
cence in the major Western countries on all matters related to commu-
nist subversion and infiltration. Because of this innocence, there were
no effective safeguards against communist infiltration in government.
In the United States, this resulted in a massive infiltration of various
government offices, which was the subject of highly publicized hearings
in the House and Senate ranging from 1948 to 1955. It was not only
Alger Hiss. Through these hearings, the American people learned for
the first time that Soviet agents had filled the number two slot and other
nearby slots in the Treasury Department, that they had held a number
of key positions in the State Department, and that they had also held
key positions in the Roosevelt White House, in the Office of Strategic
Services (OSS), and in other departments of the U.S. government.
These revelations were primarily the work of a number of defectors
from the Soviet intelligence apparatus-Igor Gouzenko in Canada; Whit-
taker Chambers, Hedda Massing, and Elizabeth Bentley in the United
States. Apart from the fact that their independent testimony jibed com-
pletely on essential points, the FBI in its followup investigations found
nothing but confirmation of the charges they had made. These charges
were directed almost without exception against people then living, who
were capable of defending themselves. The great majority of those who
had been identified invoked the Fifth Amendment when they were hailed
before congressional committees.
In April 1953, the Senate Internal Security Subcommitee embarked
on a series of hearings on interlocking subversion in government depart-
ments. In doing so, the subcommittee noted that scores of agents had
penetrated the United States government and had influenced American
foreign policy.
Summarizing the evidence presented by various witnesses, including
some two score government employees who persistently invoked the Fifth
Amendment, the Senate Subcommittee on Internal Security reported:
They colonized key committees of Congress. They helped write laws, con-
duct congressional hearings and write congressional reports. They advised
cabinet members, wrote speeches for them, and represented them at inter-
governmental conferences. They staffed interdepartmental committees
which prepared basic American and world policy. They traveled to every
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continent as emissaries and representatives of the American people. They
attended virtually every international conference where statesmen met to
shape the future.
They used each other's names for reference on applications for federal
employment. They hired each other. They promoted each other. They
raised each other's salaries. They transferred each other from bureau to
bureau, from department to department, from congressional committee
to congressional committee. They assigned each other to international
missions. They vouched for each other's loyalty and protected each other
when exposure threatened.
On the basis of these exposures, the need for a personnel security pro-
gram designed to prevent communist penetration of government offices
was accepted in principle in the 1950s by all members of Congress-lib-
erals as well as conservatives. However, over the past two decades, and
in particular over the past seven years, there has been a serious erosion
affecting all aspects of the Federal Employee Security Program. In most
government departments, very little is left of the loyalty-security pro-
gram originally spelled out by President Truman in Executive Order
9835 (March 1947) and rewritten by President Eisenhower in Executive
Order 10450 (February 1953), which established a government-wide loy-
alty and suitability program. What is left is essentially a suitability pro-
gram, tailored to weed out applicants who are lacking in competence or
deficient in character or are unacceptable because of serious criminal
history records, but possessing little direct relevance to the task of
weeding out those whose activities or assiciations pose a danger to the
national security. Even as a suitability program, it has been seriously
undercut by the general weakening of suitability criteria and by the so-
called nexus principle which, in effect, bars disqualification because of
flaws such as heavy drinking, occasional drug use, homosexuality, etc.,
unless a definite nexus can be established between the weakness in
question and the applicant's ability to perform his job.
How bad the situation has become may be gauged from a few ba-
sic facts.
First, as matters stand today, "mere membership" in the Communist
Party, the Ku Klux Klan, and other subversive organizations on either
side of the spectrum is not a bar to federal employment, even in sensi-
tive positions. To disqualify an applicant, there must be evidence that
the membership is knowing membership and that the applicant has en-
gaged, or intends to engage, in criminal activities in conjunction with
his membership. In most cases, this places an almost impossible burden
of proof on the government.
But even this tells only a small part of the story. If the government to-
day were to reverse itself on the implications for federal employment of
membership in the Communist Party or other subversive organizations,
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it still would not be able to take effective action to implement this rever-
sal of policy. This is because there is no current domestic intelligence
data base against which the names of applicants can be checked; be-
cause, when checks are made, cooperation is frequently not forthcoming
from state and local offices and from the private sector; and because
there are no national security criteria for the guidance of investigators,
adjudicators, and administrators.
How did all this come about? The situation is the product of a complex
of developments, involving both Democratic and Republican adminis-
trations, decisions of the Supreme Court, Acts of Congress-in particu-
lar the Privacy Act and the Freedom of Information Act of 1974-and
arbitrary rulings by the Civil Service Commission (now known as the
Office of Personnel Management) putting the most restrictive interpre-
tation on court decisions and the requirements of privacy legislation.
Another factor is the widespread tendency, when economies have to be
effected, to put personnel security at, or near, the bottom of the priority
totem pole. Still another factor is the anti-intelligence hysteria in the
wake of Watergate.
Particularly damaging has been the near total destruction of the do-
mestic intelligence data base laboriously built up by the FBI and local
and state law enforcement agencies over several decades. In the old
days, applicants for federal employment were routinely checked against
(1) the files of the FBI; (2) the personal reference card system main-
tained by the Security Research and Analysis Section (SRAS) of the Civil
Service Commission (CSC); (3) the extensive domestic intelligence rec-
ords maintained by state and local agencies; (4) the files of the House
Internal Security Committee (previously the House Un-American Ac-
tivities Committee). But the priceless reservoir of domestic security in-
telligence at state and local levels has for the most part been destroyed
or locked up; the FBI has for all practical purposes been out of the do-
mestic intelligence business since 1976; and the SRAS and the House
Internal Security Committee no longer exist.
The destruction of the domestic intelligence data base took only a few
years to accomplish. It will take many, many years to undo the damage.
The FBI, which used to be the principal agency involved in making
the National Agency Checks on applicants, has largely withdrawn from
the domestic security field since the imposition of the restrictive 1976
guidelines: In 1974 the FBI opened or reopened over 55,000 cases on
subversives and extremists. By June 1982 only ten individuals and four
organizations were under active domestic intelligence investigation.
In 1967 the CSC referred the cases of 2,223 applicants to the FBI for
full field investigations because preliminary evidence based on National
Agency Checks (NACIs) had turned up information bearing on the na-
tional security. By 1977 the number was down to 81. The author was
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told that the last time an NAC was converted into a full FBI field inves-
tigation was in 1978.
No personnel security program can be implemented without a very
high degree of cooperation from the public and public institutions and
from other governmental agencies-federal, state, and local. Until the
mid-70s, the Civil Service Commission could count on such cooperation.
Today many state and local jurisdictions do not cooperate at all because
of the Privacy Act and Freedom of Information Act, and private citi-
zens, all the way up to federal judges, frequently refuse to cooperate if
they have adverse information because, under the Privacy Act, OPM
can no longer guarantee confidentiality. One respected federal judge
told the author that he did not know a single member of the federal ju-
diciary who would provide derogatory information about an applicant
for federal employment if he possessed such information.
Mention must also be made of a number of Supreme Court deci-
sions-and interpretations of these decisions-which have served to re-
duce the effectiveness of the Federal Employee Security Program.
The first of these, Cole v. Young, handed down in 1956, found that
the term national security in the Act of August 26, 1950, was intended
to comprehend "only those activities of the government that are directly
concerned with the protection of the nation from internal subversion or
foreign aggression" and that mere membership in a communist or other
subversive organization did not justify dismissal unless the employee in
question occupied a "sensitive" position.
In Keyishian v. Board of Regents, handed down in January 1967, the
Court. ruled that mere knowing membership was not enough to justify
exclusion from the faculty of New York State University. It has been
the general tendency until now to apply the Keyishian ruling to govern-
ment positions despite the Court's statement limiting its decision to
"such positions as those held by appellants."
In United States v. Robel, also handed down in 1967, the Court held
that employment in industrial defense facilities could not be denied to
an applicant because of mere membership in the Communist Party.
There were other decisions by the Supreme Court which compounded
the difficulties in other ways, but the three decisions listed above are
probably the best known. There were also a number of decisions by
District Courts that have served as restrictive precedents.
The most damaging decisions were essentially the work of the War-
ren Supreme Court. The Burger Court, in a major decision on the con-
stitutionality of questions about subversive associations (Law Students
Civil Rights Research Council, Inc., et al., v. Wadmond et al.), ruled
that questions on membership in subversive organizations addressed to
applicants for the New York Bar were not unconstitutional if they were
carefully worded to conform with previous Court decisions.
The damage done by court decisions and restrictive legislation was
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compounded by a series of self-inflicted restrictions. In 1976, for ex-
ample, the Civil Service Commission (CSC) ruled, based on its interpre-
tation of court decisions and of the Privacy Act, that questions relating
to membership in subversive organizations had to be eliminated from
applications for federal employment in nonsensitive positions. In 1977,
this ruling was extended to cover sensitive positions as well. The upshot
of this is that the Office of Personnel Management (OPM) today cannot
even make a preliminary determination that an applicant is a member
of such an organization, so that it would be in a position to determine
whether this is knowing membership or membership with an intent to
engage in an overt act.
Much damage has also been done by the tendency-on the part of
Congress as well as of most government departments-to assign very low
budgetary priority to their personnel security programs. When cuts have
had to be made, the personnel security divisions have generally suffered
more than other divisions. Here are several examples:
? In 1965, the Civil Service Commission eliminated the requirement
for full field investigations for noncritical-sensitive positions (which
have access up to Secret). The Department of Defense followed suit
shortly thereafter.
? The Department of Health and Human Services, with 170,000 em-
ployees, has had its personnel security division reduced to a staff of
three, as against 333 investigators and staff assistants in its Civil
Rights division.
? In 1976, Congress mandated a 27 percent cut in the personnel of the
Defense Investigative Service, which processes personnel investiga-
tions for the Department of Defense. By June 1, 1981, this had re-
sulted in a backlog of 83,000 investigations. According to the DOD,
this backlog was having a serious adverse effect on operational readi-
ness and defense production. The General Accounting Office esti-
mated that the backlog might be costing the DOD almost $1 billion
a year, and strongly urged that the DIS be provided with 888 addi-
tional staff. Some progress has been made in adding staff and re-
ducing the backlog, but the situation still remains serious.
? Although the NACI (National Agency Check with Inquiries) still re-
mains the minimal investigation for employees in nonsensitive and
noncritical-sensitive positions, it is now being proposed, in the inter-
est of economy, that employees in nonsensitive positions (1,098,166
out of 1,652,083 positions surveyed in 1980) be subjected only to an
NAC. The saving effected would be approximately $11.00 per appli-
cant ($36.29 against $25.05). This would be a highly questionable
procedure, because without written inquiries to reinforce the National
Agency Check, the employing agency would not even be able to con-
firm that the applicant is who he says he is.
The continuing pressure to economize at the expense of the employee
security program makes no sense. The total cost of the program, gov-
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ernment wide, is probably under $200 million per year. In the author's
opinion, double this amount would not be too high a price to pay for an
effective personnel security program.
From a personnel security standpoint, one of the most dangerous
practices that has established itself over the past two decades is the
widespread resort to the waiver of full field investigations prior to filling
critical-sensitive positions with applicants or appointees.
Executive Order 10450 provided for the use of such waivers only "in
case of emergency"; in each case, the head of the agency had to approve
the appointment as "necessary in the national interest," and the back-
ground investigation had to be undertaken without further delay. A ma-
jority of the agencies apparently now feel that the cost of leaving such
positions unfilled for several months outweighs any risk that may be
involved in a post-appointment investigation. A survey of eleven agen-
cies conducted in mid-1980 by the Office of Personnel Management
(OPM) revealed that most investigations were now being processed on a
post-appointment basis. Only two of the agencies reported pre-appoint-
ment waivers in less than 34 percent of the cases. Seven of them re-
ported such waivers in 90 to 100 percent of the cases.
The waiver of pre-employment field investigations has been strongly
and repeatedly criticized as bad security practice by the Department of
Justice and the CSC/OPM. The various departments and agencies ap-
pear to have shrugged off these repeated criticisms and moved ahead to
make the waiver their procedural norm. This situation must be reversed.
It will not be reversed, however, unless investigative staffs are maintained
at a level that permits them to operate without the constant encum-
brance of a two to six month backlog.
The Federal Personnel Manual, basing itself on EO 10450, calls for a
reinvestigation of the incumbents of all critical-sensitive positions five
years after appointment and "at least once each succeeding five years."
Personnel security professionals regard periodic reinvestigations to be
just as important as-perhaps even more important than-initial inves-
tigations. Long-term ideological moles will frequently enter government
at a relatively low level and do nothing that might compromise their po-
sition until they achieve important positions at the policy-making or op-
erational levels. Similarly, those who have character weaknesses or
personal backgrounds that would make them easy targets for the KGB
recruiters become far more attractive after they have moved up the lad-
der and have access to important information.
Government wide, the performance record on the requirement for re-
investigations is at an abysmally low level. DOD has suspended indefin-
itely all such investigations. In other departments and agencies, rein-
vestigation is becoming increasingly rare. OPM reports that between
1977 and 1981 the number of requests for reinvestigation received from
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GAO fell from 277 to 84; the State Department from 114 to 50; NASA
from 254 to 151.
This is an area where dramatic improvement would be possible, given
a combination of a firm administrative directive and the funds neces-
sary to restore the reinvestigative program to an adequate level.
The Situation in the Department of Defense
There are weaknesses in the personnel security procedures in the De-
partment of Defense (DOD) that give serious reason for concern.
Enlistees are required to undergo an ENTNAC, which is a National
Agency Check without a fingerprint check. This qualifies them for ac-
cess to information and technology up to the level of Secret. It would,
for example, qualify an enlistee for service aboard a nuclear submarine.
Access to Top Secret information or to officer duty aboard a nuclear
submarine requires a Background Investigation (BI)-now an Interview-
oriented Background Investigation (IBI) (see below). Officer candidates
for all services are accepted on the basis of an NAC-now almost mean-
ingless because there is no data base.
Under the pressure of a midyear backlog of 83,000 cases awaiting
background investigation, the Department of Defense, in July 1981,
made a number of drastic cutbacks in the scope of its personnel security
program, including its application to members of the armed forces and
defense contractor personnel. Periodic reinvestigations were suspended
indefinitely. The standard BI, which used to have a scope of five years,
was reduced to an IBI, consisting of an NAC and a one-hour (average)
interview. The IBI has been strongly criticized by other components of
the personnel security community, including OPM, the State Depart-
ment, the Energy Department, and CIA. CIA professionals point out
that many applicants, when interviewed in the field by skilled investiga-
tors, will pass muster with flying colors, while they flunk the polygraph
miserably when the same questions are put to them in Washington.
One senior CIA official described the IBI as a very serious danger to the
national security.
DOD is now giving serious consideration to abandoning the IBI and
returning to the old-fashioned BI. In December 1981, the Defense In-
vestigation Service (DIS), which conducts the Background Investigations
for DOD, was given the authorization for 768 additional positions, of
which approximately two-thirds were allocated to investigators. This
expansion of DIS will contribute to reducing the backlog, but it is
almost certainly not enough to permit the liquidation of the backlog,
plus the resubstitution of the standard BI for the IBI, plus a return to
the requirement for five-year reinvestigations of all those with access to
Top Secret or over.
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Recommendations
Given these facts, it would be natural to ask if our Federal Employee
Security Program is not beyond repair, or at least beyond repair in any
reasonable time frame. The problems are unquestionably enormous-
but we must address them because the penalty for failing to do so goes
to our survival as a nation. Certain of the most basic repairs are going
to be very difficult and time-consuming (among other things because
they will require legislation). There are, however, a number of "quick
fixes," especially in the case of the suitability program, that can be made
without serious delay-a few months, a year, perhaps a bit longer-by
administrative action only, without the enactment of new legislation.
As was pointed out, the Federal Employee Security Program really
consists of two parts. The first part has to do with security strictly per-
ceived-that is, in the sense of screening out elements whose associations
with organizations found to be subversive renders them unsuitable for
employment on national security grounds. The second part of the pro-
gram has to do with suitability. Inevitably, there is a strong overlapping
between the two because those who are untrustworthy or engage in
"criminal, dishonest, infamous or notoriously disgraceful conduct," or
drink excessively, or use drugs, are clearly more vulnerable targets for
the many KGB recruiters who are active in this country, or more liable
to be careless with confidential information or documents to which they
have access. In fact, the majority of those convicted of espionage since
World War II did not become agents for ideological reasons; they suc-
cumbed, rather, because of monetary or sexual enticement or blackmail.
Administrative directives not supported or required by law can very
easily be replaced by directives from the new administrators. Handbooks
prepared under previous administrations can be replaced by new hand-
books designed to enhance the quality of our personnel suitability pro-
gram. Here are some of the things that could and should be done.
1. The lax 1975 suitability guidelines for adjudicators, currently in
use by OPM, should be completely rewritten.
2. The directives promulgated by the chairman of the Civil Service
Commission or the chief counsel of the CSC going back to 1965
should be reexamined with a view to eliminating or rewriting all
those weakening directives not absolutely required by law.
3. The entire body of Supreme Court rulings relating to federal em-
ployment should be reexamined with a view to replacing the ex-
tremely constrictive interpretations, passively accepted for some
two decades now, with viable, more conservative interpretations.
4. The quality of investigation and adjudication should be improved
by funding more intensive training courses, plus refresher courses,
for investigators and adjudicators.
5. There should be a tightening up on the waiver of the pre-employ-
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ment Background Investigation (BI), which has now become the
rule in most agencies.
6. There should be a firm return to the requirement for a reinvesti-
gation at five-year intervals of all employees in sensitive-or at the
very least, critical-sensitive-positions.
7. Adequate funding must be provided for the manpower require-
ments that would be made necessary by such improvements. This
will need a budgetary assist from Congress.
8. DOD should, at the earliest possible date, abandon the IBI and
return to the requirement of a full field Background Investigation
for all those with access to Top Secret or higher classifications.
9. Some formula must be found for recasting the "nexus" provi-
sion so that agencies are not placed in the ridiculous position of
having to hire employees whom they have many valid reasons for
not hiring, but about whose flaws and weaknesses they cannot
provide a definite nexus to ability to perform the job.
10. The OPM and the Justice Department must team up to repre-
sent the interests of the Federal Employee Security Program be-
fore the courts far more vigorously and effectively than heretofore.
11. A new executive order should be issued, making it clear that it is
the intention of the Administration to maintain an effective pro-
gram to ensure that applicants for employment in sensitive gov-
ernment positions possess the qualities of integrity and unswerving
loyalty to the United States.
In all of these areas, quick fixes are possible; the time required de-
pends more on the commitment of the principal actors than on the
amount of reading and writing to be done. The institution of the im-
provements suggested above should quite quickly-let us say, over several
years-result in a much stronger suitability program than we have today.
The improvement of the personnel security program, as distinct from
the suitability program, will require much more time and effort-al-
though here, too, there are some things that can be undertaken without
delay, e.g., rewriting the domestic intelligence guidelines imposed on the
FBI by Attorney General Edward Levi in 1976. In a hearing before the
Senate Subcommittee on Security and Terrorism in early July 1982, FBI
Director Webster informed Chairman Denton that the FBI was engaged
in redrafting the Levi guidelines because they imposed excessive restric-
tions on the FBI's ability to monitor subversive and terrorist organizations.
The two central requirements for the implementation of an effective
Federal Employee Security Program are (1) the establishment of guide-
lines for agency directors, adjudicators, and investigators; and (2) the
reconstruction of a domestic intelligence data base by reactivating the
FBI in the field of domestic intelligence and reviving the OPM's Secu-
rity Research and Analysis Section.
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The reconstruction of the domestic intelligence data base will require
a much better balance between the right of the nation to protect itself
and the privacy rights of the individual than is today the case. Among
other things, the FBI will have to be relieved of some of the restraints
imposed on it in the course of the post-Watergate anti-intelligence hys-
teria. Virtually mandatory would be an amendment to the Privacy Act
to specifically exempt domestic intelligence files from disclosure.
To provide the greatest possible assurance that some of the abuses of
the past will not be repeated, a nonpartisan domestic intelligence advi-
sory board should be constituted, in which the judicial profession, the
academic community, the legal community, and business and labor are
all represented. It would have oversight responsibilities in the field of
domestic intelligence plus the responsibility for preparing, as quickly as
can judiciously be done, a list of organizations in which membership
would raise serious questions of suitability for employment in sensitive
positions. The listing should be public and should be accompanied in
each case by a summary of the reasons for the listing. Organizations
thus designated should be given administrative due process rights to
challenge the designation. Beyond this, of course, they could appeal
their cases to the courts. They should also have the right to ask for a de-
listing hearing if they wish to demonstrate that their activities have
changed significantly since the listing was promulgated.
If the Privacy Act and the Freedom of Information Act are amended
to exempt investigative and adjudicative files from disclosure, it will still
be possible to observe administrative due process. Applicants about
whom derogatory information is developed should be provided with a
summary of this information and with an opportunity to respond to it
before a final decision is made. In addition, virtually every agency has a
built-in machinery of appeal against adverse decisions-and beyond
this, at the administrative level, there is the final right of appeal to the
autonomous Merit Systems Protection Board.
Here are a few additional recommendations the author would like
to urge:
? Individuals who are denied employment on national security
grounds should not be stigmatized as loyalty risks. Instead, the de-
termination should simply state that the applicant has been found
"unsuitable" for federal employment.
? The Federal Torts Claims Act should be amended to protect federal
employees from the threat of civil suits by providing an exclusive
remedy against the United States government in cases involving al-
legations of tortious conduct by government employees acting in
an official capacity. (Such legislation is now pending.)
? Legislation should be considered which would make mandatory the
cooperation of state and local authorities with the DOD and other
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government agencies in the matter of personnel investigations re-
lated to the Federal Employee Security Program. The possible need
for compensating state and local agencies should also be examined.
? A blue ribbon panel similar to the Loyd Wright Commission of the
50s should be set up to look at the entire question of the personnel
security situation.
In order to provide a lead and set the tone for all government depart-
ments and agencies, President Reagan should speak out on the matter
and issue a new executive order, reaffirming the need for sound person-
nel security practices in government and establishing some basic rules
for the conduct of such a program.
January 27, 1983. As we go to press, a check with the Department of
Defense and the Office of Personnel Management reveals that at OPM
there has in recent months been some significant progress, with indica-
tions of more to come. New guidelines for adjudicators are in the final
stages of preparation. A decision has been made not to go along with
the recommendation of the Interagency Task Force calling for the
substitution of a NAC for a NACI in the case of Level I employees. The
proposal that investigative files be retained for seven years only has also
been turned down.
Within the past few months, OPM has also made some progress in
improving its access to state and local law enforcement records. The
State of Pennsylvania has passed legislation directing police depart-
ments to accept requests from OPM in the same way that they would
requests from components of the federal criminal justice system. Pro-
posals are also pending that would give OPM comparable access in
New Jersey and Massachusetts, as well as in New York City.
DOD seems to be moving toward the use of polygraphs in appoint-
ments to the most sensitive positions, whose occupants have access to
Secret Compartmented Information (the highest level of classification).
It has also been recommended that the polygraph be used on a random
basis in the periodic reinvestigations of those in sensitive positions.
Despite the very strong recommendations of the high-level interdepart-
mental task force which submitted its report on personnel security in
April 1982, the indications are that the Defense Department will stick
with the IBI (a one-hour-average-interview) as a substitute for the
full field background investigation in processing personnel for sensitive
and critical-sensitive positions. At the very highest level of sensitivity,
however, there will be ten-year background investigations.
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1
The Constitution does not guarantee public employment. City, State,
and Nation are not confined to making provisions appropriate for secur-
ing competent professional discharge of the functions pertaining to diverse
governmental jobs. They may also assure themselves of fidelity to the very
presuppositions of our scheme of government on the part of those who
seek to serve it. No unit of government can be denied the right to keep out
of its employ those who seek to overthrow the government by force or vio-
lence, or are knowingly members of an organization engaged in such
endeavor.
Justice Felix Frankfurter, in
Garner v. Board of Public Works
of City of Los Angeles.
341 05 716, 724-725, 1951
The Need for Personnel Security
The need for a personnel security program is accepted in principle by
virtually all members of Congress, liberals as well as conservatives. In
practice, however, this acceptance has, over the past decade or more,
been rendered meaningless by the one-sided insistence on the right of
privacy. The right of privacy is very important-but it is not the only
right. The government also has rights-and one of the most important
of these is the right to protect itself and the public against subversion
and terrorism and domestic violence. The exercise of this right of self-
protection undeniably conflicts at certain points with the right of pri-
vacy or, to be more precise, with the absolutist conception of the right
of privacy. This is so for the simple reason that it involves such proce-
dures as personnel investigations and the maintenance of an effective
domestic intelligence operation and domestic intelligence files. Common
sense points to the need for a reasonable compromise between the right
of privacy and the right of the government to take measures to protect
the security of the nation. Instead, today the right of privacy is over-
whelmingly paramount, while the personnel security program essential
to the protection of the nation has been reduced to a fragmentary and
moribund condition.
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The history of the post-World War II period, both in this country
and in western Europe, is filled with incidents that dramatically dem-
onstrate the need for rigorous personnel security practices designed to
protect our government from the risks inherent in employing in posi-
tions of responsibility either people of questionable character or stability
-of whom there are many-or people who are ideologically committed
to the destruction of our form of government. The latter constitute only
a tiny fraction of the population, but they are capable of inflicting enor-
mous damage if they move into sensitive positions in government.
In the late 1940s and early 1950s, as a result of the revelations of
Whittaker Chambers, Elizabeth Bentley, and Hedda Massing, all self-
confessed Soviet agents, the American public learned that some 40
people who held high positions in the United States government and in-
ternational agencies were, in fact, Soviet agents. The roster of revealed
agents included Alger Hiss, who had served as Assistant Secretary of
State for International Organization Affairs; Harry Dexter White, As-
sistant Secretary of the Treasury under Henry Morgenthau; Lauchlin
Currie, Executive Secretary to President Roosevelt; Larry Duggan,
head of the State Department's Latin American Division; and Frank
Coe, another top Treasury employee who later became head of the In-
ternational Monetary Fund.*
Since these early revelations were made, there has been a steady suc-
cession of cases-less spectacular, perhaps, but nevertheless highly im-
portant-involving disloyalty and espionage by United States government
employees. A random selection reminds us that Irvin Chambers Scar-
beck, second secretary of the U.S. Embassy in Poland, was sentenced
to 30 years in November 1961 on a charge of espionage; that Nelson C.
Drummond, a U.S. Navy enlisted man, was sentenced to life imprison-
ment in August 1963 on a similar charge; that Sgt. Robert C. Johnson
was sentenced to 25 years in July 1965; that William Henry Whalen, a
retired lieutenant colonel, was sentenced to 15 years in March 1967;
*Of the government officials named above, only Alger Hiss went to prison. The essence of
the case against him had to do with treason, but because of the statute of limitations he
was charged with having perjured himself in denying that he had transmitted secret State
Department documents to Whittaker Chambers, a confessed Soviet courier. Harry Dex-
ter White appeared once before the House Un-American Activities Committee-and then
died of a heart attack before his second scheduled appearance. Subsequently, both At-
torney General Herbert Brownell and J. Edgar Hoover made statements indicating that
they regarded the case against Harry Dexter White as ironclad. Lauchlin Currie, when
asked to appear before the Senate Internal Security Subcommittee in 1952, went to Co-
lombia and has never returned to the United States. Larry Duggan, who had been asked
to testify before the Senate Subcommittee at about the same time, fell from a New York
skyscraper window under mysterious circumstances. Frank Coe invoked the Fifth
Amendment when he was asked, Are you a Soviet agent, Mr. Coe?" He was immedi-
ately dismissed by the International Monetary Fund. Shortly thereafter he went to Red
China where he served as a financial advisor to the government until his death in the sum-
mer of 1981.
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that Edwin Gibbons Moore II, a retired CIA employee, was sentenced
to life imprisonment in June 1977 on a charge of espionage; that
Christopher John Boyce, a TRW contract employee, was sentenced to
40 years in prison in December 1977 for passing sensitive information
about our reconnaissance satellites to the Soviets; that in November
1978, William Kampiles, a minor CIA employee, who got his hands on
a priceless manual on the KH 11 satellite (designed to monitor Soviet
SALT violations) and sold it to the Soviets, was also sentenced to 40
years in prison. Just before this study was completed, there was the case
of 2nd Lt. Christopher M. Cooke, USAF, who confessed to passing on
to the Soviets highly classified information to which he had access as
the deputy commanding officer of a Titan missile site. (The charges
against him were dismissed by the Court Martial on the grounds that he
had been promised immunity if he confessed.)
Other traitors who held important positions managed to get away be-
fore the law could catch up with them. In the summer of 1960, two em-
ployees of the supersecret National Security Agency, Bernon F. Mitchell
and William H. Martin, defected to the Soviet Union, gave away vital
technical know-how on U.S. coding and decoding capabilities and pro-
cedures, and lent themselves to a sustained and malicious propaganda
campaign against the United States. And we are currently confronted
with the case of Philip Agee, who resigned from the CIA in 1968, con-
vinced that he had become a "servant of the capitalism I rejected."
Since that time, making no bones about the fact that he considers him-
self a Marxist, he has been devoting himself to publicly identifying CIA
agents.
This partial listing could be expanded many times over.
The other Western nations have been shocked similarly from time to
time to discover that men who held high positions in their governments
were in reality Soviet agents. England received its first shock from the
case of Klaus Fuchs, a top-ranking nuclear scientist, who passed on vi-
tal information about the H-bomb to the Soviets. Years later it was
shocked once again to learn that Kim Philby, the head of British coun-
terintelligence, was also a Soviet agent-as were his confederates, both
high-ranking officers in the Foreign Service, Guy Burgess and Donald
Maclean. All three defected to the Soviet Union before they could be
apprehended. In Germany in recent years there have been many instances
of espionage by people who held important government positions, the
best known of which was the case of Guenther Guillaume, a personal
secretary to Chancellor Willy Brandt.
Even neutral countries have not escaped the attention of the KGB. In
Sweden in 1964, there was the sensational case of Colonel Stig Wenner-
stroem, a retired air force colonel who had served from 1952 to 1957 as
air force attache in Washington. Wennerstroem was convicted on the
charge that he had supplied information to the Soviets continuously
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from 1948 to 1963 and had gravely compromised Sweden's national de-
fense. Neutral Switzerland went through a similar experience in 1976
when Brigadier General Jean-Louis Jeanmarie, a member of the mili-
tary general staff, was convicted of spying for the Soviets for 18 years,
massively compromising Switzerland's defensive preparations.
It would be difficult to place a dollar figure on the total damage done
to the interests and defenses of the Western nations by such Soviet
agents. Sweden is reported to have spent in excess of $100 million in re-
organizing its defenses as a result of the Wennerstroem revelations.
The Jeanmarie case is reported to have cost Switzerland a comparable
sum of money. Then there is the case of Harry Dexter White who, in
the period following World War 11-over the opposition of the War De-
partment, the State Department, and the Bureau of Engraving and
Printing-pushed through his personal recommendation that the So-
viets be provided with duplicates of the American printing plates for
German occupation currency. This surely cost the U.S. billions of dol-
lars. Much more important, however, in White's case, is the fact that,
through the Morgenthau Plan* of which he was the author, he was able
to serve the Soviet objective of keeping Germany in the war as long as
possible so that the Red Army would have more time to push to the
West in Europe.
On the basis of this long and dismal record, it should not be necessary
to defend the proposition that all those employed by the U.S. govern-
ment, especially in sensitive positions, should undergo careful scrutiny
before they are approved for such employment.
The argument may be made that a substantial majority of those who
have been apprehended and sentenced as Soviet agents are people who
could not have been spotted in advance because there were no subver-
sive associations of any kind in their backgrounds, and the weaknesses
which led to their downfalls were not predictable. It is true that there
are far more instances where government employees or members of the
armed forces have succumbed because of monetary or sexual entice-
ments or blackmail than there are instances where the motivation was
*The Morgenthau Plan, in essence, called for the deindustrialization of Germany and its
conversion into a pastoral country. It was strongly opposed by both the War Department
and the State Department because it undercut the position of those Germans who wanted
to end the war, many of whom were in contact with our own intelligence. In July of 1944,
indeed, anti-war sentiment at high level resulted in the attempted assassination of Hitler
by Count von Stauffenberg. an incident which was followed by hundreds of executions
and the forced suicide of General Rommel. The Morgenthau Plan was used by Hitler to
bolster his position. The Nazi press depicted it as a Jewish-American plan for the perma-
nent impoverishment of Germany. Governor Thomas Dewey made the statement that the
plan was worth ten new divisions to Hitler. Obviously, if the anti-Nazi Germans had been
able to overthrow Hitler and make peace in the fall of 1944, scores of thousands of lives
would have been saved and the war would have ended with the Soviets hundreds of miles
to the east of where they finally stood on VE Day in May of 1945. The Morgenthau Plan
foreclosed any such possibility.
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primarily ideological. But this is true only when it comes to passing on
classified information. Even here, it would be appropriate to recall that
all of the dozen or more post-World War II atom bomb spies in the
United States, Canada, and Great Britain were spies for ideological
reasons.
There are, however, other vital areas of agent activity, capable of in-
flicting enormous damage, where the motivation is primarily ideological.
This would certainly be true in the area of policy manipulation (Alger
Hiss, Harry Dexter White, Burgess and Maclean, Guenther Guillaume).
It would also be true of the kind of operational sabotage carried out by
Kim Philby, who did great harm to British intelligence operations by
virtue of his key position as chief of M16 (counterintelligence). Finally,
while it is not excluded that physical sabotage in time of war can be ar-
ranged on a mercenary basis, the chances are that, in this area of risk,
ideological motivations pose a substantially greater danger.
Perhaps another point should be made here to underscore the impor-
tance of having a domestic intelligence machinery and an adequate data
base in existence before a country is plunged into war. Kim Philby,
Burgess and Maclean, and Anthony Blunt (whose exposure as a war-
time Soviet agent four years ago led to the revocation of his knighthood)
were all members of an openly communist group on the Cambridge
campus in the early thirties. So was James Klugman, who played a sin-
ister role in promoting the British decision to abandon the Yugoslav re-
sistance movement of General Draja Mihailovich and throw all World
War II allied support to the avowedly communist movement led by
Marshal Tito. Had there been any meaningful domestic intelligence op-
eration in existence in Britain at the time, it certainly would have
picked up masses of detailed information about the activities and mem-
bership of the Cambridge group. And had such domestic intelligence
been available, it is probable that Britain could have avoided the cata-
strophic damage inflicted by the combined activities of this remarkable
group of communist intellectuals from which Soviet intelligence was
able to recruit some of its ablest and most effective agents. But Britain
and the United States, before World War II, had very little in the way
of domestic intelligence. For this they both paid a heavy price.
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2
The Anatomy of the
Federal Employee Security Program
Prior to 1939, the criteria governing the employment of applicants by
federal departments and agencies had to do essentially with general
suitability-primarily the factors of competence and personal integrity.
This was the thrust of the Civil Service Act of 1883, the first legislation
in a long series bearing on the problem of employability. In line with
this, civil service investigations prior to 1939 were as a rule limited to
questions of character and general suitability.
The Hatch Act of 1939 was the first law to deal specifically with the
question of loyalty. Section 9A prohibited federal employees from "mem-
bership in any political party or organization which advocates the over-
throw of our constitutional form of government in the United States."
Over the years this was followed by a progression of executive orders
and acts of Congress, which led to the emergence in the mid-50s of a
formalized and effective loyalty-security program.
After the Hatch Act, there was President Roosevelt's Executive Order
8781 of June 12, 1941, which required the fingerprinting of all employ-
ees in the executive civil service. In the spring of 1944, the Civil Service
Commission established a Loyalty Rating Board to handle cases involv-
ing derogatory information with regard to loyalty. About the same time,
the Civil Service Commission began compiling a security index and gen-
eral information file. In November 1946, President Truman issued an ex-
ecutive order establishing a Temporary Commission on Loyalty. Based
on the Commission's report, President Truman on March 2, 1947, pro-
mulgated Executive Order 9835, which stipulated that employment in
the executive departments or agencies could be refused if "... on all the
evidence, reasonable grounds exist for the belief that the person in-
volved is disloyal to the government of the United States." EO 9835 was
superseded in February of 1953 by Executive Order 10450, signed by
President Eisenhower, which basically broadened the loyalty program
to include suitability. It is EO 10450, as amended, that governs the em-
ployee security program today in the competitive civil service.
EO 10450 said that:
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...the interests of the national security require that all persons privi-
leged to be employed in the departments and agencies of the government
shall be reliable, trustworthy, of good conduct and character and of com-
plete and unswerving loyalty to the United States.
It called upon the head of each department and agency of the govern-
ment to establish and maintain "an effective program to insure that the
employment and retention in employment of any civilian officer or em-
ployee ... is clearly consistent with the interests of the national security."
It stipulated that the employment of civilian officers or employees in
government agencies and departments should be made subject to inves-
tigation, the scope of the investigation to be regulated "according to the
degree of adverse effect the occupant of the position ... could bring
about, by virtue of the nature of the position, on the national security."
EO 10450 required the heads of departments and agencies to desig-
nate as sensitive any position where the occupant would be in a position
to bring about "a material adverse effect on the national security." It
also stipulated that any position designated sensitive "shall be filled or
occupied only by a person with respect to whom a full field investigation
has been conducted," and that "in no event shall the investigation in-
clude less than a National Agency Check, including a check of the finger-
print files of the Federal Bureau of Investigation and written inquiries
to appropriate local law enforcement agencies, former employers and
supervisors, references, and schools attended by the person under in-
vestigation." The Federal Personnel Manual added the stipulation that
occupants of sensitive positions be reinvestigated every five years.
EO 10450 gave to the Civil Service Commission the primary responsi-
bility for conducting investigations of persons entering or employed in
the competitive service.
To assist investigators in deciding whether the employment or retention
in employment of a person being investigated was "clearly consistent
with the interests of the national security," EO 10450 listed the follow-
ing criteria:
1. Depending on the relation of the government employment to the national
security:
(i) Any behavior, activities, or associations which tend to show that the
individual is not reliable or trustworthy.
(ii) Any deliberate misrepresentations, falsifications, or omissions of
material facts.
(iii) Any criminal, infamous, dishonest, immoral, or notoriously disgrace-
ful conduct, habitual use of intoxicants to excess, drug addiction, or
sexual perversion.
(iv) An adjudication of insanity, or treatment for serious mental or neu-
rological disorder without satisfactory evidence of cure.
(v) Any facts which furnish reason to believe that the individual may be
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subjected to coercion, influence, or pressure which may cause him to
act contrary to the best interests of the national security.
2. Commission of any act of sabotage, espionage, treason, or sedition, or at-
tempts thereat or preparation therefor, or conspiring with, or aiding or
abetting, another to commit any act of sabotage, espionage, treason, or
sedition.
3. Establishing or continuing a sympathetic association with a saboteur, spy,
traitor, seditionist, anarchist, or revolutionist, or with an espionage or
other secret agent or representative of a foreign nation whose interests
tend to be inimical to the interests of the United States, or with any per-
son who advocates the use of force or violence to overthrow the govern-
ment of the United States or the alteration of the form of government of
the United States by unconstitutional means.
4. Advocacy of use of force or violence to overthrow the government of the
United States, or the alteration of the form of government of the United
States by unconstitutional means.
5. Membership in, or affiliation or sympathetic association with, any foreign
or domestic organization, association, movement, group, or combination
of persons which is totalitarian, Fascist, Communist, or subversive, or
which has adopted, or shows, a policy of advocating or approving the
commission of acts of force or violence to deny other persons their rights
under the Constitution of the United States, or which seeks to alter the
form of government of the United States by unconstitutional means.
6. Intentional, unauthorized disclosure to any person of security informa-
tion, or of other information disclosure of which is prohibited by law, or
willful violation or disregard of security regulations.
7. Performing or attempting to perform his duties, or otherwise acting, so as
to serve the interests of another government in preference to the interests
of the United States.
With minor modifications, these criteria still govern-theoretically-
the operation of .the federal employee security program.
In its second paragraph, EO 10450 underscored the need for fair-
ness, impartiality, and equitable treatment and for the adjudication of
cases by mutually consistent standards between government departments
and agencies.
Prior to 1965, the federal work force was divided into two categories
for purposes of investigation-nonsensitive and sensitive. All sensitive
positions required a full field Background Investigation. Since 1965,
however, all civilian positions in the competitive service have been di-
vided into three basic categories-nonsensitive, noncritical-sensitive,
and critical-sensitive. Only the very limited number of critical-sensitive
positions require full Background Investigations.
The Federal Personnel Manual defines sensitive positions as "those
positions the occupants of which could bring about, by virtue of the na-
ture of their positions, a material adverse effect on the national security."
It makes it mandatory to classify positions as sensitive if the occupants
will have access to Top Secret, Secret, or Confidential information.
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The Personnel Manual defines critical-sensitive positions by positing
these criteria:
? Access to TOP SECRET defense information;
? Development or approval of war plans, plans or particulars of future or
major or special operations of war, or critical and extremely important
items of war;
? Development or approval of plans, policies and programs which affect the
overall operations of an agency-that is, policy-making or policy-deter-
mining positions;
? Investigative duties, the issuance of personnel security clearances, or du-
ties on personnel security boards;
? Fiduciary, public contact, or other duties demanding the highest degree
of public trust.
Noncritical-sensitive positions are defined as all other sensitive posi-
tions that do not meet the above criteria.
The Office of Personnel Management (OPM), previously the Civil
Service Commission (CSC), conducts the National Agency Checks
(NACs) for almost all government agencies. The NAC involves a check
of the fingerprint and investigative files of the FBI, the files of the
OPM, the files of the appropriate intelligence and investigative agen-
cies and armed forces. It also used to involve a check with the personal
reference card files maintained by the Security Research and Analysis
Section of the CSC/OPM, the files of the House Internal Security Com-
mittee, and the domestic intelligence files of state and local law enforce-
ment agencies. These sources, however, are no longer available to the
Federal Employee Security Program. (This will be discussed in detail at
a later point.)
In the case of nonsensitive and noncritical-sensitive positions, the
NAC., as required by EO 10450, is supplemented with written inquiries
to references, schools, former employers, local police departments,
etc., and the entire procedure is then called an NACI. The inquiries are
important among other reasons because they help to establish that the
subject is who he says he is. The NACI is the minimum investigation
conducted for federal employment by the OPM. However, enlistees in
the armed forces undergo a somewhat abbreviated investigation called
an ENTNAC, which is an NAC without an FBI fingerprint check. Offi-
cer candidates are required to undergo an NACI.
In the case of critical-sensitive positions, the NAC is combined with
a full field Background Investigation, which involves record checks
and personal interviews with neighbors, friends, references, employers,
schools, business associates, and others who have general knowledge of
the subject, as well as law enforcement agencies. It also generally in-
volves a credit check.
Operationally, the Federal Employee Security Program is divided into
three distinct sectors: the Department of Defense (DOD), including the
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armed forces; the 54 federal departments and agencies whose investiga-
tive programs come under the direct authority of the OPM; and the law
enforcement and intelligence agencies. The State Department, as an
intelligence-using agency, would be in this last category.
Because of its size and the massive annual turnover in the armed
forces, DOD accounts for the bulk of personnel security investigations-
some 900,000 in 1978 out of a total of 1.4 million.* The great majority
of these investigations are NACs or ENTNACs, but about 120,000 are
BIs or Special BIs.
In that same year, 1978, the Civil Service Commission conducted some
325,000 personnel security investigations, while the remaining 175,000
were conducted by the Departments of Justice, State, and Treasury and
by the CIA.
There are several qualifications that have to be made to the above de-
scription of the division of labor in the personnel security field. Executive
Order 10450 had given the CSC the authority to conduct investigations
of applicants for employment throughout the civilian sector, including
the civilian sector of DOD. Under a rather complex arrangement-
which makes for divided responsibilities-the CSC had delegated to the
Department of Defense the responsibility for conducting Background
Investigations of its own civilian employees, and there have been simi-
lar delegations of authority in the case of the intelligence and law en-
forcement communities. A number of the agencies and departments
that conduct most of their own BIs (e.g., Treasury Department, State
Department, and the National Security Agency) still call on the OPM
to assist in the processing of some of the less important positions re-
quiring Background Investigations.
Applicants for government employment are given protection and
consideration far exceeding the norms of the private sector. If an appli-
cant is not selected, he may appeal the decision to a review authority in
the agency itself. If the decision is not reversed and the applicant re-
mains dissatisfied, he may carry his appeal to an independent body, the
Merit Systems Protection Board, which, according to those in the field
of personnel security, has, at least until recently, tended to tilt heavily
to the side of the applicant or employee.
Such an anatomical description of the Federal Employee Security
Program makes it sound like a reasonably neat and orderly operation.
Unfortunately, it provides no clue to the true state of affairs.
*Search Group Inc., Federal Access to State and Local Criminal Justice Information for
Federal Personnel Security and Employment Suitability Determinations, Sacramento,
California, March 1979.
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The Erosion of Employee Security
Over the past two decades, and in particular over the past seven
years, there has been a progressive retreat from the concept of person-
nel security in government. In most government departments, very lit-
tle is left of the personnel security program, properly speaking. What
does remain of it is essentially a personnel suitability program, capable
in many cases of weeding out applicants who are lacking in competence
or deficient in character or are unacceptable because of serious crimi-
nal history records. (Even in this limited function the program's effec-
tiveness has been sadly reduced by privacy legislation and by a whole
series of regulatory constraints.) It is virtually incapable, however, of
weeding out applicants who have ties or associations that raise serious
questions of suitability from a national security standpoint, or which
are clearly inconsistent with the national interest.
Testifying before the Senate Subcommittee on Criminal Laws and
Procedures in 1978, Alan K. Campbell, Chairman of the Civil Service
Commission, stated that applicants could not be denied employment in
the federal competitive service on the basis of what is called "mere mem-
bership" in subversive organizations of the far left or the far rght-in-
cluding the Communist Party, the Socialist Workers Party (SWP), the
KKK, the American Nazi Party, the Palestine Liberation Organization
(PLO), and the Puerto Rican Socialist Party (a frankly Castroite orga-
nization) as well as the several Maoist organizations. For employment
to be denied, there had to be knowing membership plus some overt act
or evidence of intention to commit such an act.
In line with this, the Civil Service Commission in 1977 had taken the
stand that applicants for employment, even in sensitive positions, could
not be asked about membership in organizations committed to the vio-
lent overthrow of the United States government or to the use of force for
political change; nor, in the absence of an overt act, could information
about such membership coming from a third party source be entered
into the record of the investigation.
This was confirmed by Mr. Robert J. Drummond, Jr., Director of
the CSC Bureau of Personnel Investigations, in the course of a 1978 ap-
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pearance before the Senate Subcommittee on Criminal Laws and Pro-
cedures, in the following exchange:
SENATOR THURMOND: And you would not maintain in your files the
information that a man is a member of the Communist Party or any orga-
nization that stands for the violent overthrow of our government. Mere
membership would not be enough to allow you to put that in your files-
you would have to have some overt act?
MR. DRUMMOND: Yes. We would have to have something more than
mere membership.
The absolute ban on investigation into what is euphemistically called
"mere membership" was reflected in the following paragraph taken from
a 1978 handbook for Civil Service Commission investigators:
Members of an organization are reported to have set fire to the campus
ROTC building. If the subject of investigation is reported to be a member
of this group, our inquiry would be limited to his/her activities, if any, in
connection with the act of arson.
Such self-imposed restrictions are crippling enough by themselves.
But they exacerbate the basic damage done by a series of court decisions,
by the virtual destruction of the intelligence data base on subversive
and violence-prone organizations, and by the catastrophic effect that
privacy legislation and the 1976 FBI guidelines have had on the ability
of federal agencies to maintain records or to obtain information from
state, local, and private sources, or even from other federal agencies.
The basic ruling that applicants cannot be asked about membership
in subversive organizations stands to this day, although it must be noted
that, thanks to a change in management, there have been some signifi-
cant changes for the better, so that today investigators interviewing third
parties are permitted to ask in a general manner about membership in
questionable organizations and may report any such statements by wit-
nesses in their own words. The Investigators' Handbook quoted above
has now been replaced by a new handbook, which avoids such inane
instructions.
In theory, employment may be denied on the basis of membership in
a subversive organization (1) if it is knowing membership, and (2) if it
can be established that the applicant has engaged in an overt act or has
a specific intent to further the unlawful aim of the organization. But
this theoretical permission is completely ineffective because of the near-
total absence of a domestic intelligence base, the lack of guidelines for
adjudicators, and the limitations on questions to applicants. Nor does
it nullify the fact that information about membership or knowing
membership, even if confirmed, is under present standards unaction-
able without evidence of criminal complicity or criminal intent.
Another factor contributing to the degradation of the Federal Em-
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ployee Security Program is the fact that investigators, analysts, and ad-
ministrators concerned with personnel security have been compelled for
some years now to operate without accepted criteria and guidelines.
The situation existing today in effect nullifies long-standing and re-
peated legislative requirements. It also makes a mockery of the provi-
sions of executive orders relating to personnel security in government
promulgated by President Truman in 1947 and by President Eisenhower
in 1953. It flies in the face of a whole series of Supreme Court decisions,
which are in essential harmony with Justice Frankfurter's statement
quoted above, in upholding the constitutionality of measures designed
to "safeguard the public service from disloyalty."
Court Rulings and Self-Imposed Restrictions
The series of circumstances and decisions that brought the Federal
Employee Security Program to its present lamentable state cannot be
attributed to any single agency or any single administration. It is the
product of a complex of developments, involving both Democratic and
Republican administrations, decisions of the Supreme Court, Acts of
Congress, in particular the Privacy Act and the Freedom of Information
Act of 1974, and arbitrary rulings by the Counsel for the Civil Service
Commission, putting the most restrictive interpretations on Supreme
Court decisions and other court decisions and on the requirements of the
privacy legislation. It is also a product, as will be discussed later, of the
widespread tendency to put personnel security at or near the bottom of
the priority totem pole. Finally, it is a product of widespread misunder-
standing of the nature and purpose of the federal personnel security
program, a misunderstanding that tends to equate it with "witch-
hunting" and "McCarthyism."
Critics charge that EO 10450 is out of date and that it requires
amendment or even rewriting in order to make it a viable administra-
tive and legal instrument. However, subject to certain changes sug-
gested by Supreme Court decisions, it remains the law of the land (no
matter what weaknesses it may suffer from) and the guiding authority
for the various executive agencies in the conduct of their own employee
security programs.
The Eisenhower Executive Order had been preceded in 1950 by Public
Law 733, which dealt primarily with the problem of applicants and em-
ployees who "although loyal to the United States, act in a manner which
jeopardizes national security, either through wanton carelessness or
general disregard for the public good." The House report from which
this quote was taken also pointed out that this bill made "ample provi-
sion for the employment in nonsensitive agencies of certain of those em-
ployees who may be classified in sensitive departments and agencies as
security risks."
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At the time Executive Order 10450 was promulgated, the situation
seemed clear enough. Nor was there any significant partisan division
within Congress. However, over the ensuing period there were several
developments that served to weaken Executive Order 10450 and restrict
its application.
In 1956, the Supreme Court (Cole v. Young, 351 US 536) found that
the term "national security" (not defined in the 1950 Act) meant "only
those activities of the government that are directly concerned with the
protection of the nation from internal subversion or foreign aggression,"
and that membership in a communist or other subversive organization
did not fall within the dismissal procedures set forth by Executive
Order 10450, unless the employee in question occupied a "sensitive"
position. The Court accordingly ordered the reinstatement of Cole as a
food and drug inspector for the Department of Health, Education and
Welfare. In thus interpreting the intent of Congress, the Supreme
Court stated that its construction was limited to the Act of 1950 and
was not directed at EO 10450. Despite this disclaimer, however, it was
inevitable that Cole v. Young would have a chilling effect on the future
implementation of EO 10450.
The Court's decision brought a storm of protest from Congress. As
Thomas Murray, an influential Democrat, later put it, there never had
been any indication that "any member of the Committee or the House
felt that its provisions were limited to so-called sensitive positions."
Francis E. Walter, a senior member of the House Judiciary Committee,
said in anger, "It was intended by the Congress to make it possible to
get rid of a person, no matter what job he had, if that person was a part
of this conspiracy to destroy this government.... We intended that we
were going to rid ourselves in the government of this kind of employee.
The case of Cole v. Young in my judgment is the most striking example
of the invasion by the Court of the legislative prerogative that I have seen
in many years."
The Court's decision nevertheless had a far-reaching and many-sided
impact. In its wake, the federal agencies were compelled to restore 109
dismissed employees to their positions and to award some $579,000 in
back pay. Since the time of this decision there have been virtually no
dismissals on loyalty grounds with respect to nonsensitive positions-
this despite the fact that such positions constitute over 95 percent of the
total civilian federal work force.
A second important restriction on the original intent of EO 10450 re-
sulted from a letter written on November 18, 1965, by John W. Macy,
Jr., Chairman of the Civil Service Commission, to the heads of federal
departments and agencies. The letter, written at the direction of Presi-
dent Lyndon B. Johnson, redefined sensitive positions by dividing them
into critical-sensitive and noncritical-sensitive. Under EO 10450, full
field investigations had been required for all sensitive positions. Under
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the Macy directive, pre-appointment full field investigations were re-
quired only with respect to persons considered for critical-sensitive po-
sitions. (In 1980, the federal civilian service, not including DOD, State,
and CIA, had a total of 1,389,000 positions classified nonsensitive;
191,000 classified noncritical-sensitive; and just under 79,000 classified
critical-sensitive. )
In the aftermath of the Macy directive, there was a sharp decrease in
the number of applicants requiring full field investigations prior to
their appointment, for the simple reason that there are far more non-
critical-sensitive positions than there are critical-sensitive positions. The
division into critical-sensitive and noncritical-sensitive positions has its
supporters even among those who favor a strong Federal Employee Se-
curity Program and are critical of many of the concessions that have
served to weaken the program. Their argument is that each full field in-
vestigation conducted by OPM costs $1450 to $1900 (as of July 1982),
and that, in the interest of economy, the number of full field investiga-
tions must be limited to those positions where the national security
could be jeopardized by a disloyal employee. The argument against this
is that the loose noncritical-sensitive definition covers a tremendous
amount of territory and, in some agencies-including DOD-involves
access to Secret (but not Top Secret) documents.
It should be noted that, under President Carter's Executive Order of
December 1978, the classification and handling of Top Secret docu-
ments were made so cumbersome that, in a number of government de-
partments, many items which would in previous years have been given a
Top Secret designation were classified Secret in the interest of avoiding
difficulty. This situation was recently improved as a result of President
Reagan's promulgation of EO 12356.
Compared with the annual salaries paid to occupants of noncritical-
sensitive positions, a $1450 to $1900 expenditure at the outset for the
purpose of assuring the government of an applicant's loyalty and integ-
rity and general suitability for the specified position would appear to be
a modest and prudent investment. And compared with the cost of na-
tional defense, the additional cost involved in such a procedure would
be trifling.
The final point is that, from the standpoint of the ultimate cost to
taxpayers, an enhanced personnel security program would probably
pay for itself, in terms of insuring that the government obtains the best
qualified candidates and in terms of giving the government an additional
measure of protection against the infiltration of underworld elements
and against the kind of fraud and other criminal diversionary activities
that were rampant in the General Services Administration only a few
years ago.
On the heels of the Macy memorandum, another serious blow was
struck at the Federal Employee Security Program by two related deci-
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sions handed down by the Supreme Court-Elfbrandt v. Russell et al.,
decided on April 18, 1966, and Keyishian v. Board of Regents of the
University of the State of New York, et al., decided on January 23, 1967.
Keyishian is the case more frequently quoted, but both decisions-or
perhaps we should say, the interpretations placed on both decisions-
have had decidedly adverse effects.
Elfbrandt had to do with an Arizona state law calling for prosecution
on perjury charges of any teacher who took the required oath to support
the Federal and State Constitutions, and then "knowingly and willfully"
remained or became a member of the Communist Party or any other
organization committed to the overthrow of the state or federal govern-
ment. By a 5-4 majority the Court found that:
Political groups may embrace both legal and illegal aims, and one may
join such groups without embracing the latter.
Those who join an organization without sharing in its unlawful purposes
pose no threat to constitutional government, either as citizens or as pub-
lic employees.
... The Arizona Act is not confined to those who join with the "specific
intent" to further the illegal aims of the subversive organization; because
it is not "narrowly drawn to define and punish specific conduct as consti-
tuting a clear and present danger" it unnecessarily infringes on the free-
dom of political association.
In a. stinging dissent, Justices White, Clark, Harlan, and Stewart
wrote:
According to unequivocal prior holdings of this Court, a State is entitled
to condition public employment upon its employees abstaining from
knowing membership in the Communist Party and other organizations
advocating the violent overthrow of the government which employs them;
the State is constitutionally authorized to inquire into such affiliations
and it may discharge those who refuse to affirm or deny them. [Eight Su-
preme Court cases are cited in support of this statement.] The Court does
not mention or purport to overrule these cases; nor does it expressly hold
that a State must retain, even in its most sensitive positions, those who
lend such support as knowing membership entails to those organizations,
such as the Communist Party, whose purposes include the violent de-
struction of democratic government.
Under existing constitutional law, then, Arizona is free to require its
teachers to refrain from knowing membership in the designated organi-
zations and to bar from employment all knowing members as well as
those who refuse to establish their qualifications to teach by executing the
oath prescribed by the statute. Arizona need not retain those employees
on the governor's staff, in the Phoenix police department or in its schools
who insist on holding membership in and lending their name and influ-
ence to those organizations aiming at violent overthrow.
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On the legal reach of the Court's finding, the minority statement had
this to say:
It would seem, therefore, that the Court's judgment is aimed at the crimi-
nal provisions of the Arizona law which expose an employee to a perjury
prosecution if he swears falsely about membership when he signs the oath
or if he later becomes a knowing member while remaining in public em-
ployment. But the State is entitled to condition employment on the absence
of knowing membership; and if an employee obtains employment by fal-
sifying his present qualifications, there is no sound constitutional reason
for denying the State the power to treat such false swearing as perjury.
In Keyishian, the Court struck down as overbroad a New York State
statute disqualifying individuals for faculty positions at the State Uni-
versity on the basis of membership in the Communist Party. Once again
the vote was 5-4, with White, Clark, Harlan, and Stewart dissenting. In
brief, the Court ruled that "mere knowing membership without a spe-
cific intent to further the unlawful aims of an organization is not a con-
stitutionally adequate basis for exclusion from such positions as those
held by appellants" [emphasis added]. The Department of Justice and
the Civil Service Commission have taken the stand from the beginning
that Keyishian applied with equal force to government positions, and
they have conducted themselves accordingly. This has confronted them
with a formidable burden of proof. In light of the exact language quoted
above, it is at least debatable that the Court intended Keyishian to apply
to government, especially to sensitive government positions. And in the
light of the Court's decision four years later in the Wadmond case, dis-
cussed below, the stand taken by the Civil Service Commission becomes
incomprehensible.
Erandt v. Russell and Keyishian v. Board of Regents are frequently
cited as justifications for the do-nothing policy regarding identified
subversives prior to 1976 and for the elimination in 1976-1977 of the
"Have you ever been a member..." question. Almost completely over-
looked in the literature on this subject, however, is the Supreme Court
decision in February 1971 in the case of Law Students Civil Rights Re-
search Council, Inc., et al., v. Wadmond et al. Sequentially, this was
the last decision-and the most explicit one-on the specific matter of
questions addressed to membership in subversive organizations. The
appellants had challenged the constitutional validity of certain proce-
dures and questions used in screening applicants for admission to the
New York Bar. One of the two numbered questions which were directly
challenged read:
26. (a) Have you ever organized or helped to organize or become a mem-
ber of any organization or group of persons which, during the period of
your membership or association, you knew was advocating or teaching that
the government of the United States or any state or any political subdivi-
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sion thereof should be overthrown or overturned by force, violence or any
unlawful means?-If your answer is in the affirmative, state the facts below.
(b) If your answer to (a) is in the affirmative, did you, during the
period of such membership or association, have the specific intent to fur-
ther the aims of such organization or group of persons to overthrow or
overturn the government of the United States or any state or any political
subdivision thereof by force, violence or any unlawful means?
The Supreme Court (now the Burger Court), by a vote of 5-4 (with
Justices Black, Douglas, Marshall, and Brennan dissenting), upheld
the New York Bar on all points. On the question quoted above, the ma-
jority decision said:
Question 26 is precisely tailored to conform to the relevant decisions of
this Court. Our cases establish that inquiry into associations of the kind
referred to is permissible under the limitations carefully observed here.
We have held that knowing membership in an organization advocating
the overthrow of the Government by force or violence, on the part of one
sharing the specific intent to further the organization's illegal goals, may
be made criminally punishable It is also well settled that Bar examiners
may ask about Communist affiliations as a preliminary to further inquiry
into the nature of the association and may exclude an applicant for re-
fusal to answer lemphasis added].
It must be noted that question number 26 was worded in a manner
that carefully conformed to the Court's decisions Elfbrandt and Keyi-
shian. In effect, however, this wording leaves it up to the applicant to
make a subjective decision on whether or not his membership was
knowing membership and whether or not he had the specific intent to
further the unlawful aims of the organization to which he belonged. If
he decides that he didn't really know, he could answer question 26 in
the negative. The question as drafted is much better than asking no
questions at all about membership in subversive organizations-and it
also makes nonsense of the argument that Supreme Court decisions
made it mandatory to eliminate such questions from the standard ap-
plication form for federal employment. It seems, however, that, in deal-
ing with applications for employment in sensitive government positions,
it would make more sense to simply inquire about membership, leaving
the government agency to decide, on the basis of further investigations,
whether or not the applicant was a knowing member and whether or
not he had the required specific intent. The emphasized segment of the
Court's decision strongly suggests that this is the sequence the Court had
in mind. The applicant could be informed in a footnote to the question
that mere membership is not a bar to federal employment, that the
quality of the membership would have to be taken into consideration,
including whether or not it was knowing membership and whether or
not he had the specific intent to further the illegal aims of the organiza-
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tion. This should be sufficient to make the question conform to any re-
quirements of previous Court decisions. (A draft of a proposed question,
relating to membership in subversive organizations, is included in the
recommendations at the end of "The Essential Requirements: II".)
Justice Department and OPM officials with whom the author dis-
cussed the matter could not recall a single case since Keyishian where
the government has attempted to deny employment on the basis of
membership in subversive organizations-even when the government
was in possession of hard evidence of such membership. Instead, in a
number of the most serious cases, it has had to resort to the subterfuge
of finding some other valid suitability grounds to justify the denial of
employment. In cases where the position involved was not critical-sensi-
tive and the personal record of the applicant did not appear too out-
rageous, the tendency has been to pursue the path of least resistance.
Another historic decision was handed down in 1967 in United States
v. Robel, which held that even employment in industrial defense facili-
ties could not be denied to the applicant because of membership in the
Communist Party, in accordance with the provisions of the Subversive
Activities Control Act of 1967.
The Warren Supreme Court was responsible for most of the decisions
that have created difficulties for the Federal Employee Security Pro-
gram. A number of the key decisions were the product of 5 to 4 votes. It
is altogether probable that, if the same cases had come before the Burger
Supreme Court, the vote would have gone the other way. During its his-
tory, the Supreme Court has on more than one occasion reversed deci-
sions taken by antecedent Courts when experience has demonstrated
the inherent untenability of such decisions. Conceivably the Burger
Court would look with favor on legislation which in effect reverses some
of the previous decisions.
While the previous two decades, thanks to court decisions and ad-
ministrative restrictions, had witnessed a significant weakening of the
Federal Employee Security Program, over the past seven years a rapid
succession of retreats has resulted in its near-total demolition. Many of
the retreats during this period were not mandated by the courts but
were the product, rather, of exaggerated administrative reactions or of
excessive interpretations of the requirements of the law by the Civil
Service Commission.
In September 1975, the Commission closed down the extensive per-
sonal reference card system-the so-called Security Index-maintained
by its Security Research and Analysis Section, against which all appli-
cants were supposed to be checked under EO 10450. The reason given
for the action was that it was probably in violation of the Privacy Act.
In October 1976, the CSC eliminated loyalty questions from applica-
tion forms for employment in the federal civil service. This time the
reason given was that "recent court decisions have prohibited routine
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inquiry into an individual's membership in certain organizations." This
directive, however, had a caveat which permitted the asking of such
questions where sensitive positions were involved. In a follow-up direc-
tive issued one year later, this caveat was cancelled in the case of sensitive
positions because "the commissioners accepted the legal opinion of the
Commission's General Counsel that Question 21 has a chilling effect on
First Amendment rights and Question 22 is unconstitutionally vague."*
The question must be raised whether all the retreats ordered by the
Civil Service Commission were really made mandatory by Supreme
Court decisions and by the Privacy Act. For example, the November 12,
1973, memorandum which finally led to the elimination of questions
dealing, with organizational affiliations said that "recent decisions of
the Supreme Court make it clear that mere membership in an organiza-
tion that espouses the unlawful overthrow of the government may not
be inquired into, and that the only fact of relevance is membership with
knowledge of the unlawful purpose of the organization and with specific
intent to carry out that purpose." But at the point where the Commis-
sion moved to eliminate all questions relating to membership in the
Communist Party or other subversive organizations and issued rulings
that even third parties could not be asked such questions about appli-
cants for employment and that such information could not be incorpo-
rated in the investigative record if offered on a voluntary basis, the
Commission was imposing an interpretation that went far beyond the
requirements of the Supreme Court decisions. Before a determination
can be made that an applicant has been a knowing member of the
Communist conspiracy, sharing a specific intent to carry out its pur-
poses, it is clear that the fact of membership must first be established.
The 1976-1977 CSC rules governing applications for federal employ-
ment made it impossible to arrive at such a preliminary determination.
(As has been pointed out previously, OPM rules today do encourage in-
vestigators to inquire about membership in questionable organizations,
but such questioning has limited impact because of the mayhem wrought
on domestic intelligence and the absence of approved guidelines for
government departments and agencies.)
It is to be noted that the Defense Department placed no comparable
construction on the Supreme Court's decisions.
Similarly, without waiting to see whether the extensive personal ref-
erence card system maintained by its Security Research and Analysis
Section could withstand legal scrutiny in the light of Privacy Act and
Supreme Court decisions, the Civil Service Commission in 1975 moved
*A detailed account of these developments is to be found in a report entitled "The Ero-
sion of Law Enforcement Intelligence and Its Impact on the Public Security" put out by
the Senate Subcommittee on Criminal Laws and Procedures in December 1978. The
author of this paper was also the author of the report.
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to inactivate and seal these records, basing this action on the advice of
Counsel that it was required by the Privacy Act. In so doing, the Com-
mission greatly weakened its ability to alert dependent federal agencies
to the existence of adverse information on applicants for employment,
pointing to the need for full field investigations. This reduction in its in-
house capabilities was all the more damaging because of the increasing
difficulty of obtaining information from local law enforcement agencies
and institutions and because of the drastically diminished capabilities
of the FBI in the field of internal security. Since then, all the reference
cards and files of source documents have been boxed and placed in
storage, and the entire Security Research and Analysis Section (SRAS),
whose task it had been to compile and maintain these files, has been dis-
banded. With this matter we shall deal in more detail in a later section.
The Destruction of the Domestic Intelligence Data Base
From the standpoint of screening out elements whose employment
might pose a danger to the national interest or national security, it is
imperative that those responsible for administering the Federal Em-
ployee Security Program have at their disposal a domestic intelligence
data base, which would enable them to identify at least a substantial
proportion of those applicants who are, or have been, associated with a
broad variety of extremist and subversive or front organizations. These
would include:
? organizations committed to the violent overthrow of the government
? organizations committed to the use of violence for political pur-
poses
? organizations which conspire to deny civil rights to any group of
American citizens
? organizations which operate under the control of or in collusion
with hostile foreign powers
? organizations which serve as fronts or support organizations for
any of the above categories
? organizations which have engaged in conspiratorial activities di-
rected against the security of the United States government or the
integrity of its operations.
In the 1950s and 1960s such a domestic intelligence data base did ex-
ist. It had three principal components. The first component was the
very large body of domestic intelligence on file with the FBI. The sec-
ond consisted of the organization files and reference library and per-
sonal reference cards maintained by the Security Research and Analysis
Section of the Civil Service Commission. The third component was the
mass of detailed information on file with state and local law enforcement
agencies, many of which had vigorous domestic intelligence programs.
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There were also two ancillary components of the domestic intelligence
data base that should be mentioned.
First, there were the files of the House Internal Security Committee
(formerly the House Un-American Activities Committee). The files of
the House Committee were regularly consulted by investigators for the
Civil Service Commission in accordance with the requirements of EO
10450. Second, there were the domestic intelligence files on violence-
prone and revolutionary groups in the custody of the U.S. Army. These
files had their beginnings in the 1950s, when President Eisenhower used
the Army repeatedly to enforce school desegregation in the southern
states and the Army found it necessary to equip itself with intelligence
about the KKK and other violent segregationist organizations and ele-
ments in order to discharge its duties. In the late sixties, the focus
changed. Then it was a matter of dealing with mass rioting in the cities,
organized subversion in the armed forces, and sabotage of the war ma-
chine and other illegal acts to impede the military by extremist groups
in the anti-war movement. The Army's files were shared with other de-
fense agencies which confronted similar problems, although they were
not involved in the containment of the many devastating big-city riots.
Today all the components of the domestic intelligence data base have
either ceased to exist or have for all practical purposes been lost as in-
vestigative resources available for the support of the Federal Employee
Security Program.
The Department of Defense, bowing to strong congressional consen-
sus against military involvement in domestic intelligence, instructed the
services in March 1971 to terminate all domestic intelligence activities
targeted against non-DOD personnel, and ordered their existing files
destroyed.* The House Internal Security Committee was terminated in
1975.** The files of the Committee are in storage, where their useful-
ness is nil. The Security Research and Analysis Section of OPM has been
*In 1972, one year after the Defense Department discontinued all domestic intelligence
activities and ordered its files destroyed, the Supreme Court, in Laird v. Tatum. dismissed a
complaint that DOD's activities were unconstitutional. In effect, the Court decided that,
because the plaintiffs had not suffered objective harm, the Court could not reach the
merits of the plaintiff's suit. The Court of Appeals decision, which the Supreme Court
was reviewing, had, however, dealt with the question of constitutionality in these terms:
To quell disturbances and to prevent further disturbances the Army needs the
same tools and, most importantly, the same information to which local police
forces have access.... No logical argument can be made for compelling the mili-
tary to use blind force. When force is employed, it should be intelligently directed,
and this depends on having reliable information... in time....
The information gathered is nothing more than a good newspaper reporter would
be able to gather by attendance at public meetings and the clipping of articles
from publications available on any newstand.
**The House had previously defeated by a wide majority a move by the Committee on
Committees to eliminate the Committee on Internal Security. But then the Democratic
Caucus circumvented the House vote by failing to include the Internal Security Commit-
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completely closed down. The FBI and local and state law enforcement
agencies have seen their capabilities in the field of domestic intelligence
reduced almost to the vanishing point.
How did all this come about?
In the case of OPM, the erosion of its ability to contribute signifi-
cantly to the personnel security process stems from the implications of
the Privacy Act of 1974, the erosion of the domestic intelligence data
base, and a series of self-imposed restrictions, to which we have already
referred, and which we shall discuss in more detail later.
In the case of the FBI, the enactment of a far more stringent Free-
dom of Information Act of 1974 and the 1975-76 investigation by the
Church committee on the Senate side and the Pike committee on the
House side both resulted in serious curtailment of the Bureau's internal
security activities. But the final blow was the Domestic Security Guide-
lines issued in March 1976 by the then Attorney General, Edward Levi.
Under these guidelines for the conduct of domestic intelligence opera-
tions, a full investigation could not be launched unless it was preceded
by a "preliminary investigation" and then a "limited investigation." A
"preliminary investigation" in the field of internal security could be
undertaken on the basis of allegation or information that an organiza-
tion or an individual was engaged in, or was about to engage in, crimes
of violence. These investigations, under the guidelines, were to involve
the use of only the least intrusive techniques. If the preliminary investi-
gation suggested the need for further information, FBI headquarters or
the Special Agent in Charge was given the power to authorize, in writ-
ing, a "limited investigation." "Full investigations" could be authorized
only by FBI headquarters on the basis of "specific and articulable facts,"
giving reason to believe that the individual or group was engaged or
might be engaged in violations of the federal law involving the use of
force or violence.
The guidelines limited a preliminary investigation to several months
and a full investigation to one year-a time limit that could be extended
only on the written authorization of the Department of Justice.
There are some extremist organizations engaged in acts of violence or
terrorism which meet the requirements for a full investigation under
the Levi guidelines. Examples of such organizations would be the KKK,
the Weather Underground, and the FALN, the major Puerto Rican ter-
rorist organization. But there are far more organizations in the extrem-
ist spectrum that do not meet these criteria. Among these are groups
like the Socialist Workers Party (a Trotskyite organization), the Revo-
lutionary Communist Party, the Progressive Labor Party, and a variety
tee in its report establishing the House committee structure for the session. This was not
subject to amendment on the floor. Despite widespread indignation, the House voted to
approve the report on committees because it had no practical alternative.
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of other self-designated Marxist-Leninist groups, all committed to the
forceful overthrow of the U.S. government and to working for its defeat
in the event of war. None of these groups was found to meet the Levi
criteria because the ultimate crime to which they are committed may
still be many years away; for the moment, they are simply engaged in
organizing and propagandizing in support of this ultimate crime, fo-
menting subversion in the armed forces, and creating as much conflict
and chaos as they can in the industrial sector-all activities that can in-
voke the protection of the First Amendment.
Also excluded by the Levi guidelines would be organizations such as
the U.S. Peace Council, the American affiliate of the World Peace
Council-without question the most notorious and most effective of Mos-
cow's international front organizations; the National Lawyers Guild,
which both House and Senate committees have described as a legal
front for the Communist Party, but which has over the past two decades
developed into a legal action group representing an array of radical left
organizations and terrorists; and the North American Congress on
Latin America (NACLA), whose echoing of the Castro propaganda line
throughout the Americas, supported by frequent direct contact with
the Castro government and pro-Castro groups in other countries, raises
serious questions of a domestic security nature. Ideally, the United
States government should have at its disposal information about all
such organizations so that it would be in a stronger position to resist
their efforts to infiltrate government agencies. But with no intelligence
available and no criteria to guide administrators, the government obvi-
ously can offer no effective resistance.
It is not a matter here of arguing that membership in front organiza-
tions should be treated in precisely the same way as membership in the
Communist Party or other subversive organizations. There are numer-
ous dupes and innocents who are in no way committed to the violent
overthrow of the U.S. government and whom many would consider
public-spirited citizens, who have permitted themselves to be drawn into
various front activities. Membership for a period of time in a single
front organization is not today, and should not be, a bar to federal em-
ployment. But as Professor Sidney Hook once observed, while one may
excuse membership in one or two front organizations on grounds of in-
nocence, by the time an individual has served in twenty such organiza-
tions over an extended period of time, a pattern is established which
exceeds the plausible boundaries of innocence. Membership in a front
organization is a legitimate personnel security consideration because it
raises the question of whether it is part of a larger pattern.
The Levi guidelines predictably had an immediate and devastating
effect on what remained of the FBI's domestic security program. In
1974, the FBI opened or reopened over 55,000 cases on "subversives
and extremists," according to a GAO report. Two years later, the GAO
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reported that "as of early October 1977, 17 organizations and approxi-
mately 130 individuals were under domestic intelligence investigation."
The situation since that time has continued to go downhill.
How bad the situation had become by mid-1978 was frankly admitted
by Sebastian S. Mignosa, Chief of the Domestic Security Section of the
FBI, in an appearance before the House Permanent Select Committee
on Intelligence on July 31, 1978. When Mr. Mignosa was asked whether
his section handled subversive organizations coming under the Loyalty
and Security Program called for by Executive Order 10450, his reply
was, "We don't have any of those." When he was next asked who in the
FBI dealt with such organizations, he replied, "There isn't any at the
moment .... There isn't any of those type cases at the moment."
Actually the FBI still does maintain surveillance of a handful of orga-
nizations committed to terrorism and violence or involved in foreign es-
pionage. But according to highly knowledgeable sources, its current
domestic intelligence operation represents a cutback of perhaps 95 to
98 percent from the levels of the 50s and 60s. This may well be an un-
derstatement. In testimony before the Senate Subcommittee on Secu-
rity and Terrorism on August 11, 1982, FBI Director Webster informed
Senator Denton that the FBI had active domestic intelligence investiga-
tions going on four organizations and ten individuals.
In 1965 the CSC referred the cases of 2,223 applicants to the FBI for
full field investigations because preliminary evidence based on NACs
had turned up information bearing on the national security. By 1977
the number was down to 81. The author was told that the last NAC
report converted to a full FBI field investigation was in 1978.
The report on the attempted assassination of President Reagan issued
by the Treasury Department in August 1981 states:
Interviews for this report with FBI and Secret Service personnel indicated
that the total number of preliminary, intermediate, and full domestic se-
curity investigations involving both individuals and groups which were
open at the time of our inquiry was far less than at any time covered by
the GAO report (emphasis in original text).
The Treasury Department's report discussed the Attorney General's
guidelines at considerable length because of the impact these guidelines
have had on the capabilities of the Secret Service. It said that "the
Secret Service's protective capabilities have been impaired by the decline
in the quantity and quality of intelligence collected by the FBI, which is
the primary source of.the Service's domestic intelligence," and it sug-
gested that the Attorney General's domestic security guidelines for the
FBI be modified in a manner which permits the FBI "to pursue domes-
tic security investigations where no criminal predicate is available."
The same arguments would be applicable to the reintegration of the
FBI into the Federal Employee Security Program.
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At the state and local levels, the 1970s also witnessed a massive de-
struction of intelligence files dealing with extremist organizations of
both the far left and the far right. The State of Texas Public Safety
Division destroyed its domestic intelligence files in 1974. The files of
the New York State Police have been under lock since 1975; Washing-
ton, D.C., Baltimore, Pittsburgh, and other cities destroyed their files;
the files of the Chicago Police Department have been locked up since
March 1975; while in New York City, Los Angeles, and other major
cities there has been a wholesale destruction of files, in most cases ex-
ceeding 90 percent of the previous total.
Many law enforcement agencies at state and local levels have com-
pletely abandoned the domestic intelligence function and terminated
their domestic intelligence units.
By itself, the abandonment of the domestic intelligence function and
the massive destruction of domestic intelligence files would be cata-
strophic enough. But, as we shall discuss later, the situation has been
further aggravated by the fact that, as a result of the fears generated by
privacy legislation at the federal and state levels, law enforcement agen-
cies-which in the past always freely shared intelligence-no longer
share the little intelligence they still have on hand.
The Devaluation of the NACI and the Background Investigation
It is not surprising that today's NACIs and Background Investigations
produce far less substantive reports than those of ten or fifteen years
ago. In the old days, the Civil Service Commission could count on the
complete cooperation of federal, state, and local agencies, and a very
high degree of cooperation from private citizens, institutions, and cor-
porations. There were also, as we have pointed out, extensive domestic
intelligence files maintained by state and local law enforcement agen-
cies, as well as the files of the FBI and of the Security Research and
Analysis Section. But the priceless reservoir of domestic security intelli-
gence at state and local levels has for the most part been destroyed or
locked up; the FBI has for all practical purposes been out of the domes-
tic intelligence business since 1976; and SRAS no longer exists. Private
citizens, all the way up to the level of federal judges, frequently refuse
to cooperate if they have adverse information because, under the Pri-
vacy Act and Jane Doe v. U.S. Civil Service Commission, the OPM can
no longer guarantee confidentiality, if the information furnished in
confidence is used as the basis for an adverse employment decision.
One respected federal judge told the author that he does not know a
single colleague on the federal bench who would provide derogatory in-
formation, if he possessed it, about an applicant for federal employ-
ment. The result of all this has been a dramatic decline in the value of
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the NACI and the Background Investigation, especially as they relate to
organizational affiliations that pose a danger to the national security.
In testimony before the Senate Subcommittee on Criminal Laws and
Procedures in 1978, Stuart Knight, Director of the Secret Service, esti-
mated that the Service was receiving at the most 50 percent of the
amount of intelligence it used to receive to assist it in the protection of
the president and the government, and that if one took into considera-
tion the reduced quality and detail of the intelligence that was still
available, the total loss of information was probably in the neighbor-
hood of 75 percent. Substantially the same testimony was given by the
Secret Service on July 31, 1981, before the Senate Subcommittee on the
Constitution. It is common knowledge that the Secret Service, precisely
because its mission is to protect the president, receives an exceptionally
high degree of cooperation from local, state, and federal agencies. If
the intelligence available to the Secret Service today stands at approxi-
mately 25 percent of what it used to be, it would not be an unreasonable
assumption that the information bearing on the national security
brought together by the standard NACI procedure probably rates sub-
stantially less than 25 percent of that of a decade ago or two decades
ago.
The NACI still remains the minimal investigation for employees in
non-sensitive and noncritical-sensitive positions. It cannot be aban-
doned because then we would have nothing. Clearly it must be retained,
despite its very much reduced value in recent years. Instead of retaining
the NACI, however, it is now being proposed that for Level I employ-
ees, in a five-level system being considered as a replacement for the
present three-level system (Level I embraces the majority of the federal
employees surveyed in an interagency task force study), the NACI be
reduced to an NAC. This means that no form letters will'be sent out to
check on the identity of the applicant, on whether he has a local criminal
record, etc. According to OPM, this position constituted a concession
to the insistence of DOD in the interagency task force which produced
the proposal for the five-level system. Having helped to produce the re-
port, however, DOD, because of residual differences, refused to sign it.
The standard Background Investigation has not fared much better
than the NACI. The basic reasons for the reduced quality of the BI
have already been discussed. On top of this, the BI has suffered from
successive reductions in scope. Before 1961, the BIs of applicants and
appointees went back to 1937 or the subject's eighteenth birthday. In
1960, recognizing that a fixed 1937 starting point was illogical, the CSC
reduced the period covered by the BI to fifteen years, or the period
since the eighteenth birthday. Within this new scope, a serious effort
was made to conduct third-party interviews covering that span of time.
In 1968 the CSC, after consulting the agencies, again reduced the scope
of the standard BI-this time to five years' intensive coverage. The
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DOD followed suit a few years later in its BIs on military personnel.
The intelligence and law enforcement agencies still generally adhere to
the fifteen-year scope, but in OPM, DOD, and other agencies, the
trend is still downward.
While the OPM still retains the five-year scope, veteran investigators
say that today's investigative reports are quantitatively and qualitatively
inferior to those of ten or fifteen years ago and this by a factor of some
25 to 30 percent. This is something that should be easily verifiable. As
matters stand today, the average BI conducted by OPM involves some
31 contacts of all kinds, of which sixteen are personal interviews. The
average investigation of civilian employees previously conducted by
DOD involved a total of fourteen contacts, according to the same re-
port. (There was no figure given for the number of personal interviews,
but it was substantially less than fourteen per case, and it is conceded
that many of these interviews were conducted over the phone. This was
prior to July 1981. Since that time, DOD has suspended third party in-
terviews entirely and has switched to subject interviews for military per-
sonnel.) Measures under discussion today raise the serious possibility
that the program may be further downgraded. Under the five-level sys-
tem which is now under serious consideration by OPM and other agen-
cies, Level I employees, as indicated above, would be subjected to an
NAC only; Level II employees (in whose case the risk is defined as "op-
portunity for significant but reversible damage to the national security")
would be subjected only to an NACI; while Level III employees (in whose
case the risk is defined as "opportunity for effecting serious but
generally reversible damage to the national interest") would be sub-
jected to a Limited Background Investigation (LBI), involving an NAC
plus one year of personal coverage plus four years of written inquiries.
The coverage specifications call for "in-person interviews with a mini-
mum of three knowledgeable people." In the case of the standard BI,
there are in-person interviews with anywhere from twelve to 30 or more
witnesses. The standard BI is proposed for retention at the more sensi-
tive Level IV. A fifteen-year Special Background Investigation is pro-
posed for the most sensitive positions at Level V.
Thus, in effect, the quality of the Federal Employee Security Pro-
gram has been squeezed from two sides. On the one hand, it has become
progressively more difficult to obtain information; and on the other
hand, there has simultaneously been a progressive reduction in the
amount of time and energy invested in personnel investigations.
The FBI's reduced domestic intelligence activities, which have made
it impossible for the Bureau to put its impressive capabilities at the dis-
posal of the Federal Employee Security Program, constitutes yet another
factor in the weakening of the BI. In the old days, if a preliminary in-
vestigation turned up evidence pointing to the possibility of subversive
involvement, the case would automatically be referred to the FBI, and
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the FBI would then conduct a full field investigation of its own and
report back to the Civil Service Commission or the other government
agency involved. Over the past few years, however, when OPM has sent
the FBI cases requiring further investigation because of evidence or
allegations of subversive involvement, the FBI almost invariably has re-
turned the case to OPM with the suggestion that OPM itself conduct
the investigation. Obviously, if the FBI has relevant information, it
does forward it to the requesting agencies.
This is not a simple matter of the FBI's withdrawing from its respon-
sibilities. In defense of the FBI, it must be noted that under the restric-
tions imposed by existing laws and existing guidelines it has become
virtually impossible to conduct an effective domestic intelligence opera-
tion. To compound the damage, law enforcement agencies are at risk of
having to pay a heavy price for intelligence operations they conducted
in the past. The Socialist Workers Party, for example, has been suing
the FBI for $40 million on the allegation that it was subjected to illegal
surveillance. In another suit recently settled in Chicago, after seven
years' litigation, the presiding judge noted that the FBI had furnished
documents "at a rate substantially in excess of 1,000 pages per week...
from mid-1977 through late 1980," and that these documents, totalling
"several hundred thousand pages... reflect an extensive cross section
of FBI domestic intelligence activities in the Chicago area during the
period 1940 through 1980." As a result of a FOIA request, each of these
several hundred thousand pages had to be gone through on a line-by-
line, word-by-word basis before they were released-a chore that must
have accounted for tens of thousands of man-hours.
In summing up this section, it should be repeated that, despite the
serious devaluation of the NACI and the BI, the background checks be-
ing conducted today do have an important, if limited, utility, because
they still do turn up criminal history information and other information
having a general bearing on the question of suitability. But for the rea-
sons already set forth, they turn up very little information directly re-
lated to national security requirements.
Closing Down the Civil Service Commission's SRAS
A more detailed history of the Security Research and Analysis Section
of the CSC/OPM would be in order at this point because there is much
evidence that the old Civil Service Commission was not simply restricting
the Section's functions in response to mandatory rulings by the Su-
preme Court but was, instead, eager to seize at every legal and bureau-
cratic pretext for diminishing the function of the SRAS because there
were those in the CSC who were philosophically opposed-some on bu-
reaucratic, some on civil libertarian, some on quasi-legal grounds-to
the requirements of an effective personnel security program.
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The SRAS had the specific assignment of helping the CSC, through a
careful search of its records, to meet the requirements for National
Agency Checks under Executive Order 10450. From the early 1950s,
when President Eisenhower promulgated EO 10450, until the early
1970s, the Security Research and Analysis Section (previously known as
the Security Research Section) was a very active operation with an expe-
rienced and dedicated staff of over 40 people; by 1975, it was down to
20. By the end of 1979, the staff had been reduced to the point where it
consisted of the section chief and two assistants, one a Grade 4 and the
other a Grade 5.
The chief of the Section, W. ("Rush") Yarosh, was a man with im-
pressive qualifications who had served with military intelligence in the
U.S.A., Germany, Japan, and other countries from 1945 to 1961; had
retired with the rank of Lieutenant Colonel; had then served for a pe-
riod of ten years as a Special Assistant for Security to the Director of
the Intergovernmental Committee on European Migration in Geneva,
Switzerland, screening refugees and Displaced Persons admitted to the
United States (this position gave him access to, and liaison with, the in-
telligence communities of ICEM's 28 member nations); and had then
moved in 1970 into the position of chief of the Security Research and
Analysis Section. It is indicative of the attitude of the bureaucracy to
the SRAS that, although Yarosh made repeated efforts on their behalf,
there was no promotion in grade for any of the SRAS employees during
the last five years of the Section's existence.
Over a period of years, the SRAS was able to build up some for-
midable resources that greatly facilitated the task of preliminary in-
vestigation and saved the country many millions of dollars, at the same
time as it enhanced the quality of our personnel security program.
First, there were several million personal and organizational refer-
ence cards, based overwhelmingly on public record sources. Since each
news item was indexed on a separate card, individuals with extensive
and consistent records of extremist activities were sometimes the sub-
jects of numerous cards pointing to the original source items that car-
ried their names.
Second, there were organizational files containing research materials
culled from the national and local media, and from the publications of
the various left-revolutionary and front organizations and of right-wing
extremist groups.
Third, there was a massive library of newspapers and publications
put out by the Communist Party USA and other Marxist-Leninist orga-
nizations committed to the revolutionary overthrow of the United
States government. This library, for example, contained bound vol-
umes of the Daily Worker (organ of the Communist Party), going back
to the 1920s. The bound publications occupied some 50 feet of wall
space, floor to ceiling, in the office of the Security Research and Analy-
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sis Section. These publications were supplemented by a large library of
reference books and by complete sets of the many hundreds of volumes
of hearings and reports published by the Senate Subcommittee on In-
ternal Security and by the House Internal Security Committee (previ-
ously the House Committee on Un-American Activities) from the time
of its inception to the time of its termination in 1975.
Finally, there was an extensive library of urban telephone directories
and city directories, going back many years. This was an invaluable re-
source, which enabled the SRAS and CSC to verify identity and do
quick checks of the various addresses listed by the applicant, and to
pinpoint neighbors in each community at the time he claimed to have
lived there.
These were basic tools with which the Security Research and Analysis
Section worked. None of these now exist.
The argument used by the CSC General Counsel in recommending
the sealing of the SRAS reference card system was that such record
keeping was, in effect, prohibited by Section (E)(7) of the Privacy Act,
which reads:
Agencies shall maintain no record describing how any individual exercises
rights guaranteed by the First Amendment unless expressly authorized by
statute or unless pertinent to or when in the scope of an authorized law
enforcement activity.
Instead of sealing the personal reference cards, CSC could have re-
acted at the time by exploring three different possibilities. First, they
could have argued that their uncollated personal reference card system
did not constitute a system of records or files on individuals. Alterna-
tively, they could have held that their responsibilities for the Federal
Employee Security Program made them an authorized law enforcement
activity of the U.S. government and that the reference cards were essen-
tial to the discharge of these responsibilities. As still another alterna-
tive, they could have sought authorizing legislation on an urgent basis.
Instead, they capitulated without a struggle. Needless to say, this capit-
ulation greatly impaired the ability of the SRAS to gain access to the
vital information contained in the files.
How did the sealing of the SRAS Security Index come about?
On June 3, 1975, Robert J. Drummond, Jr., Director of the Bureau
of Personnel Investigations, wrote a lengthy memorandum to Robert E.
Hampton, Chairman of the CSC, in which he recommended that the
Commission discontinue the use of the personal reference cards imme-
diately. The key paragraphs of this memorandum indicate the defeatism
and lack of understanding that have characterized a substantial num-
ber of the CSC's high command in years past. These paragraphs are
quoted below, together with a running commentary.
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In FY 1974, approximately 450,000 cases were searched through the files
of the Security Research and Analysis Section (SRAS). This number
represents all of the cases on which the Civil Service Commission con-
ducts a National Agency Check plus about 32,000 cases on which searches
are conducted, but a National Agency Check has not been scheduled,
etc., special searches for experts, consultants, instructors and other types
of persons who are exempted from the investigatory requirements of Ex-
ecutive Order 10450. For the same period the SRAS produced informa-
tion regarding possible identity on 6,255 cases (1.39 percent), and after
research reported records out on 2,919 cases (0.65 percent).
[COMMENT: The fact that SRAS produced information bearing
upon possible subversive associations in 2,919 cases out of 450,000
cases searched through its files is clearly intended to belittle its per-
formance-especially when the number of cases is restated as 0.65
percent. In reality, this is a rather impressive accomplishment. The
overwhelming majority of those who apply for government employment
are loyal citizens. The entire purpose of a personnel security program in
government is to try to weed out the one in 100 or one in 200 whose as-
sociations do raise serious questions about suitability for government
employment on security grounds. If SRAS had reported records out on
five percent, or even three percent, of the cases referred to it, this would
have been excessive enough to raise serious questions about the discre-
tion exercised by the Section. If, in practice, SRAS found evidence
pointing to a need for further FBI investigation in 0.65 percent of the
cases, it suggests that it performed in a careful and responsible manner.]
It is true that a substantial portion of the information in the files is in the
form of published hearings or has been published in newspapers, maga-
zines, and other periodicals. The thrust of the question is that since the
information is already in the public domain, where is the invasion of pri-
vacy. In my view, the infringement on individual rights and privacy
comes about once we take this information that is in the public domain
and index it by name. Then we are maintaining files on how individuals
exercise their First Amendment rights.
In the public notice required by the Privacy Act we are identifying the Se-
curity Research and Analysis Index as records on "individuals who may
be listed in an investigative leads file composed of information obtained
from investigative reports, the public records, and various publications."
I am sure this will pique the interest of sufficient numbers of citizens to
cause us considerable workload responding to their requests as to records
that we have on them. In many cases we will be unable to respond prop-
erly without further investigation to determine whether the requestor is
the same "John Doe" mentioned in the Index.
[COMMENT: The personal reference cards in the Security Research
and Analysis Index were not really files on individuals but simply in-
vestigative leads to the source documents containing the items refer-
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enced. A file, as, such, did not come into existence until an individual
applied for federal employment. At this point it became mandatory to
open an investigative file on the applicant, and the published items
referenced in the index became part of this file. In the case of the great
majority of applicants, there were no references. In the case of those
whose public record activities raised questions related to the national
security, a search of the files could, and quite often did, result in the
compilation of a number of public record items which pointed to the
need for further FBI investigation. Certainly there is validity to the ar-
gument that the SRAS procedure was not the equivalent of "maintain-
ing files on how individuals exercise their First Amendment rights."
And certainly the investigative process makes it mandatory that govern-
ment agencies be placed in a position to assemble the bits and pieces of
an applicant's personal record at the point where he applies for federal
employment.]
As indicated in my memorandum of February 18, even if we were to con-
clude that the keeping of such a file is an essential part of our investiga-
tive responsibilities, and thus, pertinent to and within the scope of an
authorized law enforcement activity, I think that continued maintenance
and use of the file will eventually bring embarrassment to the Commis-
sion. (I am not sure we could successfully argue that the Commission is
engaged in an "authorized law enforcement activity" by virtue of our re-
sponsibilities for administering the merit system through various statutes
and executive orders.)
Privacy aside, it is one thing for the Commission to maintain records on
individuals who are applicants or employees. However, in the case of the
Security Research and Analysis Index, we maintain records on individu-
als who are neither applicants nor employees of the federal government
and may never be applicants or employees.
[COMMENT: The answer to the statement that it would be difficult
for the Commission to argue that it was an "authorized law enforce-
ment activity" is the fact that the CSC/OPM does today refer to itself
as such an activity. The objection to maintaining records "on individu-
als who are neither applicants nor employees of the federal government
and may never be applicants or employees" is characteristic of the
ultra-civil libertarian approach which characterized many of the Com-
mission's findings during this period. If there does not exist in some
form records against which applicants for federal employment can be
checked, then clearly it would be impossible to create such records at
the point of application. In effect, this is an argument for no federal
security employee program at all in deference to the supreme right of
privacy.]
The sealing of the personal reference cards, however, did not affect
the SRAS organizational files, which were probably the most complete
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records of their kind maintained by any government office. In the course
of personnel investigations it frequently happens that the name of some
relatively unknown organization will crop up and the question that has
to be confronted by reviewers and adjudicators is how much impor-
tance they should attach to association with such an organization. The
files of SRAS contained vital information bearing on such questions-
and since the FBI had virtually taken itself out of the internal security
field in 1976, SRAS was the only office in the U.S. government where
such current information was available. By the end of 1978, however,
even this important residual function had, for all practical purposes,
come to an end because neither the Civil Service Commission nor the
agencies for whom they handled personnel investigations appeared to
be interested in domestic intelligence bearing on subversive and vio-
lence-prone organizations. The SRAS organizational files were still
there-but they were not being used.
With the reference cards locked up, the staff reduced to a meaning-
less level, and organizational files largely unused, Peter Garcia, the
new Assistant Director of OPM for Personnel Investigations, found it
difficult to justify the operation. In January of 1980, Yarosh was given
five days to clean out his office and he was then assigned to another posi-
tion. The 130 file cabinets containing research materials were jammed
into 50 file cabinets for moving, and the entire office was reduced to two
desks manned by the Grade 4 and Grade 5 assistants (who were, inci-
dentally, much more qualified than their grades suggest).
On July 9, 1980, the OPM wrote to Karen Boyd, President of Local
32 of the American Federation of Government Employees, informing
her that the Division of Personnel Investigations "is preparing to inacti-
vate the Security Research and Analysis Section ... on or about July 21,
1980," that all SRAS records would be sent to storage as soon as possi-
ble, and that the two remaining employees in the Section would be reas-
signed to other duties. And so the research files, the extensive reference
library, the organizational index, and the telephone directories and city
directories were boxed and sent elsewhere.
The CSC/OPM, through this series of actions, has deprived itself of
virtually every in-house investigative tool that previously used to serve
the old Civil Service Commission.
Certainly, this series of acts, which added up to a decision not to
maintain research files of any kind-even files based on public record
material-flies in the face of common sense. When appropriate agen-
cies of the United States government deny themselves the right to com-
pile, from media sources, information essential to identify personalities
or organizations whose commitments and activities pose a potential
threat to the national security or to the national interest, they are, in ef-
fect, denying the government the basic right to take reasonable action
to preserve itself.
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In its early days, the Federal Employee Security Program attracted
many knowledgeable and dedicated people who, through years of per-
sonal exposure to the problem, were able to bring expertise to the ad-
ministration of the program. But the progressive degradation of the
program over the past decade has resulted in the early retirement of the
great majority of the experienced personnel security hands. Their
places have been taken, for the most part, by young, inexperienced
people who are now trying to perform a job they do not understand-
with no internal security background, little or no training, no in-house
data base to assist them, no guidelines, and no encouragement. It is not
their fault that the Federal Employee Security Program, in most depart-
ments and agencies, has now become a costly and almost meaningless
charade that is doing grave damage to our national security. They, too,
are victims of the system.
The Freeze on the Exchange of Domestic Intelligence
These self-inflicted injuries to the Federal Employee Security Pro-
gram have been compounded by the progressive chill on the exchange
of data between state and local agencies and the federal government. In
the past, these agencies always freely shared such intelligence. Com-
menting on the situation that has arisen in consequence of privacy leg-
islation at the federal and state levels, Captain Justin Dintino, Chief of
Intelligence for the New Jersey Police, told the Senate Subcommittee on
Criminal Laws and Procedures in 1978:
The free flow of intelligence between Federal, State, and local agencies
is essential to an effective law enforcement operation. To the extent that
this flow is restricted, law enforcement is handicapped. And today this
flow is terribly restricted, at every level and in every direction: From city-
to-city, from State-to-State, from State agencies to Federal agencies, and
from Federal agencies to the State and local level. This is a disastrous sit-
uation and we've got to find some way of reversing it.
Commenting on the same situation, a previous GAO report dated
December 16, 1977, said:
Due to legal constraints and nonresponses to inquiries, CSC cannot
check some local enforcement records, even though the check is required
by Executive Order 10450. By September 1976, the Chicago area [of
CSC] had stopped sending [requests for information] to law enforcement
agencies in New York, California, Minnesota, New Mexico, Massachu-
setts, and Illinois, and 86 cities in other States, because the agencies
refused to release criminal information to CSC. Some of the larger cities
are Detroit, Indianapolis, and Washington, D.C. Thus, an investigation
cannot surface criminal information on individuals who reside in these
areas, unless the information is also on file with the FBI.
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When Alan K. Campbell, Chairman of the U.S. Civil Service Com-
mission, appeared before the Senate Subcommittee on Criminal Laws
and Procedures in March 1978, he confirmed that this was an accurate
description of the situation that existed in 1976 and he said that there
had been no improvement since that time.
In August 1980, in an effort to induce a more cooperative attitude on
the part of state and local law enforcement authorities, OPM mailed
out a pocketsized brochure captioned "The U.S. Office of Personnel
Management: An Authorized User of State and Local Criminal History
Information." The booklet described the OPM program, made the ar-
gument that its need for criminal history information is critical to the
national security and interest, and pointed out that its requirement for
such information is based on statute and is consistent with the regula-
tory requirements of the Law Enforcement Assistance Administration.
OPM believes that it is now getting improved cooperation from many
law enforcement agencies as a result of its continuing exercise in educa-
tion and public relations. But the situation nationwide is still very bad,
with some of the major industrial areas, including New York City, Penn-
sylvania, New Jersey, and Massachusetts, not cooperating at all or co-
operating in a very niggardly manner. As recently as January 1981, an
internal information bulletin of the OPM Personnel Investigations Di-
vision indicated that OPM continues to operate under the same handi-
caps that so crippled the operation of the Civil Service Commission.
The bulletin said:
Since the enactment of the 1974 Privacy Act, many state and local au-
thorities have become increasingly sensitive to the issue of individual pri-
vacy. A number of these authorities have interpreted their responsibilities
in the area of individual privacy to include increased restrictions on the
dissemination of criminal history data in state and local files to noncrimi-
nal justice agencies in the federal government, even though the legal and
regulatory authorities of these agencies, including the investigative au-
thorities of the OPM, meet all of the requirements for access. Privacy
consideration and a number of other factors, such as the workload involved
in processing federal agency requests for information, have been used by
a number of state and local authorities as a basis for denying federal
agencies access to all or part of the information in their files.
Suitability: The Dilemma of the Adjudicator
Personnel security is intertwined with "personnel suitability." "Suit-
ability" has to do with such things as general character, trustworthiness,
and reputation. It has important implications for the personnel security
program because those who are untrustworthy or engage in "criminal,
dishonest, infamous or notoriously disgraceful conduct," or drink ex-
cessively, or use drugs, are clearly at risk from a personnel security
standpoint. Although it is manifestly impossible to screen out all such
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"security risks," it is a reasonable assumption that the great majority of
those who have been recruited by the Soviets on a mercenary basis or as
a result of sex or blackmail suffered from some such flaws. If a signifi-
cant percentage of such elements can be eliminated in the course of the
employee screening process, the government stands to gain, both in
terms of performance and in terms of enhanced security.
Executive Order 10450 was intended to establish a government-wide
program embracing both personnel suitability and personnel security.
We have up to this point concerned ourselves primarily with the decline
of the personnel security program. However, there has at the same time
been a parallel decline in the quality of the personnel suitability pro-
gram-and for much the same reasons.
What it all boils down to is that, as the General Accounting Office
has pointed out in several reports, it has become much more difficult to
obtain information of any kind from government offices as well as from
the private sector because the disclosure provisions of the Privacy Act
have had a chilling effect on potential witnesses possessing derogatory
or other than favorable information about applicants or appointees. In
addition to this, there has been a dramatic change over the past two
decades in legal and social philosophies, so that information, which
would have resulted in disqualification ten or twenty years ago, is sim-
ply considered immaterial or unactionable today.
The government's personnel suitability program has been further be-
deviled by the so-called nexus principle, which emerged from the D. C.
Circuit Court's decision in the case of Norton v. Macy (417 F. 2d 1161,
C.A.D.C. 1969). Under this principle, if an applicant's record contains
information which might otherwise disqualify him, he may not be dis-
qualified unless a "nexus," or specific rational connection, can be dem-
onstrated between his conduct or weakness and his ability to perform
satisfactorily his duties in the position for which he has applied.
In all divisions of the United States government, the adjudicators
who make the final recommendations on suitability for government em-
ployment play a role of critical importance in the employee selection
process. This is so because it is the adjudicator who makes the final de-
cision in all cases where there is derogatory information to be evaluated
or where the information developed by the investigation is considered
insufficient by the reviewer. Adjudicators, of course, have to have
guidelines. The guidelines for adjudicators (Federal Personnel Manual
System/United States Civil Service Commission, "Determining
Suitability for Federal Employment," FPM Supplement 731-1) lists a
number of factors that may serve to disqualify an applicant for employ-
ment. But each factor is now conditioned by so many caveats and ex-
ceptions that the poor adjudicator more often than not is left wondering
which way to turn. (The manual, which was published in 1975, is still in
current use.)
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An applicant can be disqualified because of delinquency or miscon-
duct in previous employment. However, in order to do so, "the evidence
must show a pattern of conduct which would be incompatible with suc-
cessful performance in the position applied for or employed in."
Applicants can be disqualified for federal employment if they have
committed "serious crimes involving basic questions of honesty, integ-
rity and character, unless they have established records of rehabilita-
tion." But the caveats here are numerous.
Under the Prisoner Rehabilitation Act of 1965, government depart-
ments and agencies were enjoined to provide employment opportunities
for rehabilitated criminals. The theory was that, if government wanted
private enterprise to provide such employment opportunities in order to
reduce the rate of recidivism, then government itself had to provide the
lead. Initially the procedure was to defer the consideration of such ap-
plications for two years. If at the end of that time the subject had not
become involved in any new difficulties with the law, he was considered
rehabilitated and eligible for employment. As matters stand today,
however, good behavior in prison is considered evidence of rehabilita-
tion, and a convict emerging from prison with a one- or two-year good
behavior report is theoretically-and quite frequently in practice-
eligible for immediate employment, even in sensitive positions.
Offenders who violated the law before their eighteenth birthday and
whose offenses were finally adjudicated in juvenile courts or under
youth offender laws, are not required to admit to the arrest and sen-
tencing in filling out their civil service employment application forms.
If, despite this fact, the investigator learns from other sources that the
subject was sentenced in a juvenile court, this information may not be
used to disqualify the applicant for appointment to a position in the
federal competitive service. This would make it possible for a youthful
offender who committed a number of burglaries just before he turned
eighteen and was thereafter sentenced to six months' detention by a ju-
venile court, to come out of prison and walk right into a job as a govern-
ment guard.
Nor does an applicant have to admit to a conviction under state or
federal law prior to age 26 if the conviction has been set aside pursuant
to the provisions of the Federal Youth Corrections Act. Nor does he
have to admit to it if the record of his conviction has been expunged
under state or federal law.
The personnel suitability handbook provides that applicants for gov-
ernment employment can be disqualified if they have engaged in "no-
toriously disgraceful conduct." However, it warns that "evaluators
must be careful to avoid letting personal disapproval of such conduct
influence their decisions. Disqualification in such cases is warranted
only "when the notoriety accompanying the conduct can be reasonably
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expected to affect adversely the person's ability to perform his or her
job or the agency's ability to carry out its responsibilities."
The handbook further notes that "court decisions require that per-
sons not be disqualified from federal employment solely on the basis of
homosexual conduct." This apparently is a blanket rule which applies
equally to nonsensitive, noncritical-sensitive, and critical-sensitive posi-
tions.
The handbook lists current excessive use of intoxicating beverages as
another justification for denying employment. However, it points out
that under Public Law 91-616, enacted on December 21, 1970, "no per-
son may be denied or deprived of federal civilian employment ... solely
on the ground of prior alcohol abuse or alcoholism." One would imag-
ine that, in determining what constitutes rehabilitation, the handbook
would at least stipulate a six-month or one-year period of absti-
nence-which used to be the practice. The section dealing with this
matter, however, is so vaguely worded that, in theory, a one-month ab-
stinence could be considered proof of rehabilitation. "Rehabilitation,"
says the section, "is not necessarily time-framed. There can be strong
evidence of rehabilitation covering a brief period of time...."
An applicant can also be denied employment because of the current
illegal use of narcotics, drugs, or other controlled substances. However,
the handbook notes, "if it is determined that an applicant, or an ap-
pointee serving a probationary period, is currently using any substance
listed in Appendix A, Schedule of Controlled Substances, the fact of
such illegal use will not necessarily, in and of itself, be sufficient to deny
eligibility for appointment of an applicant or removal of an appoin-
tee.. . .all circumstances surrounding the use of the controlled sub-
stance must be examined to determine whether a rational relationship
exists between the individual's conduct and some identifiable detriment
to the efficiency of the service."
Each case, says the handbook, should be adjudicated on its own mer-
its, and the adjudicator should take into consideration the kind of drug
used, the patterns of use, how the drug was obtained, the date on which
use started and the last date used, circumstances and environment at
the start of drug use, assistance in cure and rehabilitation, nature of
treatment and prognosis, social behavior and attitude since discontinu-
ance of drug use, history of previous rehabilitation efforts, circum-
stances and environment at the time of discontinuance of drug use.
In order to make an intelligent adjudication that takes into consider-
ation all of these factors, an adjudicator would have to be a combina-
tion of King Solomon, a professional psychologist, a sociologist, and a
drug expert.
The handbook says that, while continuing use of LSD, marijuana,
and other controlled substances is disqualifying, "no specific period of
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rehabilitation can be established." This wording would suggest that an
applicant who had abstained or said he had abstained for a month's
time from the use of marijuana, LSD, cocaine, or other drugs, might be
considered eligible for government employment even in a sensitive posi-
tion. Actually the situation is somewhat worse than this. So tolerant has
the system become today, according to several personnel security pro-
fessionals interviewed, that, even in the case of someone who currently
uses drugs in his off time, it would be necessary to demonstrate a vir-
tually absolute "nexus" between the applicant's off-time drug use and
his ability to perform his job before he could be disqualified.
In the case of those who have already been appointed to government
positions and are discovered to be drug users, present regulations re-
quire that they be given an opportunity to seek counseling, with the
time off counted as sick leave. Only if the appointee refuses to seek
counseling, or if he seeks counseling but fails in his effort at rehabilita-
tion, can he be terminated.
The handbook states that "traitorous or disloyal acts" are disqualify-
ing, as is "knowing and active membership in an organization whose
stated aim is destruction of the constitutional form of government by
unconstitutional means, with the specific intent to carry out that des-
truction." It justifies disqualification where there is "a reasonable
doubt of the loyalty of the applicant or employee to the government of
the United States." It then goes on quite properly to note that "peace-
ful protest and dissent are rights guaranteed by the Constitution," and
gives as examples of such peaceful protest, participation in the anti-
Vietnam war demonstrations or demonstrations for or against the bus-
ing of school children. But it provides absolutely no guidelines for the
adjudicators in helping them to determine what kind of associations
and activities are protected by the Constitution and, on the other hand,
what kind of associations and activities would constitute justification
for reasonable doubt of loyalty.
The situation has been further complicated by the fragmentation of
the adjudication program subsequent to the Civil Service Reform Act of
1978. Previously, the adjudication program for the complex of some 55
departments and agencies serviced by the Office of Personnel Manage-
ment (OPM) was concentrated in the Civil Service Commission (OPM's
predecessor organization). This at least had the advantage of making
for uniform standards of adjudication. Today, the major portions of
the adjudication program have been delegated to various agencies and
departments by OPM. Standards of adjudication in the departments
and agencies tend to be extremely lax because this is the direction in
which the guidelines point, because many agency directors do not have
a feeling for the importance of personnel security, and because it is only
natural that the adjudicators should further weaken the program in
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making their own interpretations of the legal interpretations that have
been handed down to them in the form of guidelines.
Standards of adjudication are significantly better in the intelligence
community, the law enforcement agencies, the Department of Justice,
and the Department of the Treasury. Within the limitations imposed
on them by court decisions and acts of Congress, these agencies appear
to be making a serious effort to protect the national interest through
the adjudicative process. How difficult this has become, however, is ap-
parent from the statement of a senior Justice Department lawyer who
said that, in the absence of some dramatic factor justifying disqualifi-
cation on other grounds, it would almost be necessary to prove a case of
treason in order to justify nonselection of a technically qualified appli-
cant with a revolutionary record.
A senior officer in the Navy's Civilian Personnel Department, when
asked how the Navy would react to the knowledge that an applicant for
a sensitive position was a long-time member of the Communist Party,
replied that she frankly did not know how the implications of member-
ship in the CPUSA would be regarded. As for homosexuality, mari-
juana, and excessive drinking in their off hours, it would be necessary
to prove the existence of some absolute nexus between these weaknesses
and the on-duty performance of the applicants in order to deny them
employment.
A presumption of a nexus, or of a potential nexus, in such cases,
would certainly not be unreasonable-indeed, on a common-sense
basis, most ordinary mortals would favor such a presumption in the in-
terest of not putting the government or the armed forces at risk. As the
rules are interpreted and applied today, however, such risk is apparently
considered a matter of secondary importance.
The nexus principle is badly flawed for another reason. It is fre-
quently impossible to provide proof of the existence of a nexus before
an applicant has worked on the job for a while. Once an applicant has
been put on the payroll, however, it becomes extremely difficult to get
rid of him-despite the fact that he is theoretically on one year's proba-
tion-because the criteria for separation are much more stringent than
the criteria governing initial employment.
Commenting on all of the restrictions under which adjudicators to-
day must operate, an old-time professional told the author that the ad-
judicator's lot is not a happy one because, in effect, he has been hired
to do a job which he cannot satisfactorily perform.
There is no quick fix for this situation. To effectively remedy the per-
sonnel suitability and security programs is going to require (1) some
new legislation, (2) the reestablishment of a domestic intelligence data
base, (3) some additional funds for the government personnel security
operation, and (4) a basic rewriting of handbooks such as "Determin-
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ing Suitability for Federal Employment" in a manner which places the
optimum interpretation on existing laws and which, at the same time,
strikes a better balance between the prerogatives of the individual ap-
plicants and appointees and the prerogatives-and responsibilities-of
the government as employer.
Getting new legislation enacted is going to take a number of years.
Some things can be done in less time, however. In relatively short
order, for example, it should be possible to examine the body of regula-
tions and directives based on interpretations of existing laws, and to
rewrite them wherever there appears to be a possibility of interpreting
the law in a manner more in harmony with the requirements of sound
personnel security and suitability practices. There is absolutely no
reason, for instance, why the regulations governing the employment of
former criminals, alcoholics, and drug abusers should not stipulate
specific time limits for proof of rehabilitation. It might be stipulated
that ex-prisoners would be considered eligible for employment in non-
sensitive positions if they had not violated the laws for one year after
release; and that they would be eligible for employment in sensitive
positions after two years of good behavior. And there are many other
common-sense things that could be done without delay through the
simple process of rewriting legal interpretations and administrative
directives.
Until recent years, it was the accepted concept that employment by
the federal government was a privilege rather than a right. As things
are today, however, federal employment has come to be regarded as an
inalienable entitlement, and the government in effect has come to be
regarded as the employer of last resort. This concept appears to have
taken charge of the entire adjudication process. This by itself tends to
create a situation highly prejudicial to sound personnel security prac-
tices. It is mandatory that we find our way back to the old-fashioned
principle, upheld in repeated court decisions, that, while every citizen
has the right to apply and compete for government service, on a basis of
equality with other applicants, federal employment itself must continue
to be regarded as a privilege.
Cutting the Costs of Personnel Security: A Study in False Economy
There are factors other than FOIA and the Privacy Act and con-
straints on investigators that have contributed to the decline of the
Federal Employee Security Program. One of these has been the low
priority which most government agencies-including the Department
of Defense but not including the intelligence and law enforcement com-
munities--have assigned to their personnel security programs since the
early 1960s. Personnel security divisions have been starved for funds
and starved for staff and their programs have been deemphasized and
cheapened to the point where many conscientious senior employees
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have taken their retirements early out of a feeling of complete frustra-
tion. Although the implementation of an effective security program re-
quires personnel of high competence and superior judgment, those
assigned to jobs in the field of personnel security have all too frequently
been employees of inferior competence and limited background. This
tendency has been exacerbated by the fact that few officials with per-
sonal ambition gravitate voluntarily to the area of personnel security
because it is a field where the prospects for advancement are limited
and where it is virtually impossible to make a name for oneself. Every
ambitious officeholder wants to do a good job. But the field of govern-
ment personnel security is today encumbered by so many restrictions
that even the most conscientious bureaucrat would find it impossible to
turn in a truly effective performance.
In harmony with all this, it has been a frequent practice on the part
of government agencies, when economies were called for, to effect these
economies primarily at the expense of the personnel security machin-
ery. (The tendency to do so has no doubt been further encouraged by
the fact that the various offices directly concerned with the personnel
security program produce an invisible and unquantifiable product-
better security.) The examples are numerous.
In 1965, the Civil Service Commission eliminated the requirement
for full field investigations in the case of noncritical-sensitive posi-
tions-which are in most departments far more numerous than critical-
sensitive positions. In 1972, it stopped budgeting for an investigators
training program.* It progressively reduced and then dismantled the
Security Research and Analysis Section. It cut back on the scope and
reduced the thoroughness of Background Investigations.
Finally, there is the matter of the limitations placed on the Investiga-
tions Evaluation Branch (IEB) which is supposed to function as a quality
control unit in the field of investigation. Theoretically, IEB is required
to review each agency every two years by doing spot checks on their per-
sonnel security procedures. According to a September 1980 report,**
because of IEB's limited resources, some agencies and offices, in-
cluding OPM itself, had not been reviewed in five or more years, and
some had never been reviewed. [OPM now states that this situation has
improved and that the IEB since January 1981 has had the resources to
cope with its assignment.]
It should be emphasized once again that the systematic budgetary
starvation of the Federal Employee Security Program is not limited to
the OPM. It is government wide, and the responsibility is shared by
*In the latter part of 1979, Peter Garcia, the present Assistant Director for Personnel Inves-
tigations of DPI, reinstituted a one-week training program for investigators and four such
one-week programs have now taken place. But from 1972 to 1979 there was no training.
**Office of Internal Evaluation, OPM, Personnel Investigations: Ways to Improve Serv-
ices and Reduce Costs, September 1980.
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Congress as well as the federal bureaucracy. It was Congress, for exam-
ple, which in 1976 mandated a 27 percent cut in the personnel of the
Defense Investigative Service (DIS)-a reduction in force that has
played a major role in the almost paralyzing backlog of Background In-
vestigations against which the Department of Defense is now struggling.
One of the most dramatic examples of excesses perpetrated against
the personnel security program in the name of economy is to be found
in the Department of Health and Human Services, which has a total
staff of some 170,000 employees. A number of years back, the Depart-
ment's Office of Internal Security, whose primary function was person-
nel investigation, had a staff of 38. As recently as two or three years
ago, there were ten professional and support staff in the Division of
Personnel Investigations. Today it is down to a staff of three-the
director, one specialist, and one clerk. As a result of the inversion of
values imposed by the Carter Administration, there still are, by way of
contrast, 333 investigators and staff assistants assigned to the civil
rights division of HHS. It is not that civil rights are unimportant-but
surely, in any rational plan of things, personnel security would have to
be assigned at least equal importance.
The General Accounting Office must also be given a portion of the
blame for the government-wide tendency to cut back on the costs of
personnel security programs. Indicative of the recurring theme of its
several studies of the situation is its August 1979 report, "Costs of Fed-
eral Personnel Security Investigations Could and Should Be Cut." It
has yet to produce a report entitled "The Quality of the Federal Em-
ployee Security Program Must Be Improved."
It would, perhaps, be too much to expect GAO, whose strong point is
managerial expertise, to manifest a sophisticated understanding of the
need for an effective employee security program and the myriad prob-
lems involved in such a program. Internal security has over the past two
decades become an increasingly arcane profession. The great majority
of those who might qualify as experts are now out of government, and
of those who remain, it is highly questionable that GAO possesses any
meaningful representation.
The pressure brought: to bear on OPM by the GAO proposal is re-
flected in the five-level system being proposed by an interagency task
force for designating the sensitivity of positions and activities. Of a total
of 1,652,083 positions tentatively surveyed in connection with the rec-
ommended system, 1,098,166 fall in Level I under the new arrange-
ment. In order to save $11 per position, the new plan proposes to reduce
personnel investigations in Level I from an NACI to an NAC ($36.29
against $25.05).* The NACI, as we have pointed out, has traditionally
*These figures, compiled in 1981, represent the total cost of processing NACs and NACIs
-the cost to OPM, the cost to the employing agency, and the costs to the FBI, DOD, and
to the other agencies with whom records are checked.
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been considered a minimal investigation. Reducing it to an NAC means
that letters will not even be written to local police departments (unless
there is information indicating that such checks are necessary) asking
whether the applicant has a criminal record-indeed, without the in-
quiries to reinforce the National Agency Check, the employing agency
would not even be able to confirm that the applicant is who he says he
is. Veteran investigators with whom the proposal was discussed feel
that, for the sake of achieving a minimal saving, the quality of the in-
vestigation that is going to be accorded the great majority of govern-
ment employees will suffer seriously.
The punitive budgetary treatment of the offices concerned with per-
sonnel security might lead one to think that it was a matter of saving
billions or at least hundreds of millions of dollars. Actually, the total
annual cost of the government's personnel security program, compared
with its purpose and importance, is ridiculously low. A report put out
by the Comptroller General in August 1979 gave these figures for the
cost of the program, government wide, but not including the Depart-
ment of Defense, for fiscal year 1978:
costs
Number (millions)
Full field investigations 152,057 $61.6
Other investigations, such as updates, NACI, and NAC 1,140,812 10.1
If we add to this the rough figure of $90 million for the Department
of Defense and make some allowance for agency investigations not
covered by the GAO survey, the total cost for 1978 would be substan-
tially under $200 million.
There are many areas in the bloated federal bureaucracy where cuts-
even heavy cuts-can be imposed to advantage. But that is not the case
with the Employee Security Program. Like our national defense estab-
lishment, this program has to be rescued from the incremental econo-
mies imposed on it year after year. If the entire operation were beefed
up to the point where it cost double what it costs today, it seems to the
author of this paper that this would still be little enough to pay for en-
hancing the quality of the Federal Employee Security Program.
A decision of far-reaching significance for the future of the Federal
Employee Security Program was handed down on January 16, 1980, by
the Federal Court for the Southern District of New York (Jane Doe v.
U.S. Civil Service Commission). Jane Doe was a candidate for a White
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House fellowship. In the course of an investigation by the Civil Service
Commission, two of the 35 witnesses interviewed stated that she ap-
peared to be afflicted with kleptomania, that she had stolen some very
small items from them. Their statements were given on condition of
confidentiality. When Jane Doe was not selected for the White House
fellowship, she petitioned under the Privacy Act for a copy of her inves-
tigative file. She was given a copy of her file, with the identities of the
two adverse witnesses deleted. She then sought to persuade the Civil
Service Commission to eliminate from her file the information provided
by the adverse witnesses, or alternatively, to compel the adverse wit-
nesses to come forward and confront her. The Civil Service Commission
turned down this request. She then brought suit against the Civil Serv-
ice Commission charging that the Commission had unconstitutionally
violated her liberty interests by disclosing derogatory allegations
against her without affording her an opportunity to refute the charges.
In its decision, the Court upheld her complaint. It ruled that "if the
agency wants to include the derogatory report in Doe's file, she must
have a chance to question the sources and challenge their credibility."
The Court also found that the CSC's investigatory and disclosure proce-
dures violated Doe's right to due process and it ordered the agency to
provide Doe with an opportunity to refute the allegations, with appro-
priate discovery if necessary. Finally, the Court found that Doe had "a
constitutionally based cause of action against the named defendants in
their individual capacity." Presumably this ruling could also be ex-
tended to investigative witnesses.
In the aftermath of Jane Doe v. U.S. Civil Service Commission, the
Office of Personnel Management on November 28, 1980, proposed
sweeping changes in the conduct of personnel investigations. The pro-
posal, while conceding that OPM investigative reports have tradition-
ally contained information from confidential sources, suggested that in
future investigations, if a source refuses to withdraw his request for
confidentiality, the information from that source would not be reported.
The proposal also stated that:
When an agency, as a result of information in an OPM report of inves-
tigation, changes a tentative decision (selection, promotion, grant clear-
ance, etc.) to an unfavorable decision, it must provide the subject the
specific reason(s) for the decision based on the information in the report,
and allow the person a specified period of time, fifteen (15) calendar
days, to respond. An extension of time to respond may be granted for suf-
ficient cause. The subject must be given an opportunity to respond orally,
in writing, or both, and to have the right of representation.
Going beyond the changes that may have been indicated by the
Court's decision in Jane Doe v. U.S. Civil Service Commission, OPM
proposed changing the retention schedule of investigative files from
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twenty years to seven years. This is a completely arbitrary time frame.
If an investigation terminates in nonselection, and if the subject of the
investigation eight or nine years down the line reapplies for employment
in the federal government, the record of his previous investigation
would not be available under OPM's proposed retention schedule. In
the case of those who are selected for government employment, it would
seem far more logical to retain investigative files for the duration of
their employable years. In the case of those who are rejected for reasons
related to loyalty or security, files should be retained at least until they
reach age 65, and retained indefinitely where they deal with case his-
tories that have a continuing application or are of historical interest.
The OPM reports that no action has yet been taken on the Novem-
ber 28, 1980, proposal although the proposal itself and agency com-
ments on it are under active consideration.
The Doe decision will, if permitted to stand unchallenged, have a
very serious effect on future investigations under the Federal Employee
Security Program. It has been recognized in the past that there are
many valid reasons why witnesses who possess adverse information
about applicants for federal employment may condition their coopera-
tion on a pledge of confidentiality. When, under the old system, several
confidential witnesses provided corroborative accounts of an adverse
nature, this evidence would be weighed very seriously. Today, all that is
over.
Even more distressing are the implications of the Court's decision
upholding the right of Jane Doe to claim damages from investigators
and Civil Service Commission officials who had contact with her case.
For reasons of simple human nature, investigators will be far less likely
to report adverse information that comes to their attention, and adjudi-
cators and personnel directors will be far less likely to make adverse
determinations if this can result in a suit for tens of thousands of dol-
lars. Indeed, quite a few investigators and officials working in the field
of personnel security have taken out insurance against this possibility.
Clearly the safest course for them to follow would be to avoid all adverse
information and all adverse determinations, except in the most glaring
cases. It is common knowledge in the personnel security community
that this is precisely what many investigators and reviewers do-al-
though there are a surprising number who still report the facts and
exercise their objective judgment despite the uncertainties attendant on
doing so.
There can be no contesting the Court's contention that Jane Doe
should have been advised of the allegations against her and should have
had an opportunity to respond to the allegations before the information
was passed on to the panel in charge of selections for the White House
fellowship program. The question is whether this basic due process re-
quirement could not be achieved without insisting on the identification
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of confidential witnesses and without making investigators and officials
civilly liable for information recorded or decisions reached in good
faith.
Long before the Privacy Act, it was the Civil Service Commission
practice to advise applicants about whom derogatory information had
been received of the general nature of this information and invite their
response. But this did not give them access to the investigative file and
adjudicative report.
The Department of Justice wanted to appeal the Jane Doe decision
precisely because it was felt that the Court had gone far beyond the ac-
tual requirements of due process in the restrictions it imposed on future
investigative procedures. Unfortunately, the CSC/OPM, instead of ap-
pealing, made a settlement with Jane Doe for $25,000 in actual dam-
ages, and agreed to restore her name to the list of those eligible for
White House fellowships. Having settled the case, the OPM automati-
cally made a future appeal against the Court's decision impossible. The
Jane Doe decision, in consequence of this failure, now constitutes a
precedent that may very well become the law of the land. In this in-
stance, as in so many instances before it, the CSC surrendered valuable
ground without putting up a fight to the finish in the courts. In doing
so, it has compromised the operations of the personnel security pro-
grams in all sectors of the government.
In the first part of 1980, the OPM's Division of Personnel Investiga-
tions (DPI) made an effort to change the rules in a positive direction.
Under its newly defined rule, if a witness refused to recommend an ap-
plicant, the investigator was instructed to report his reason or reasons,
no matter what they were, approximately in the witness's words. The
rationale for this was that the inclusion of the information did not have
to be defended, since it was simply a matter of reporting accurately the
witness's reason for refusing to recommend. The Jane Doe decision,
however, introduces an element of ambiguity into this more rational
approach.
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Personnel Security Procedures in
Individual Agencies
Personnel security procedures vary dramatically from agency to
agency. Some are better; some are worse. In the following chapter, we
examine the procedures in the Department of Defense, the intelligence
agencies and the FBI, and the Departments of State, Justice, and
Energy.
The Department of Defense
The Defense Department, it has been estimated, is responsible for
some 75 percent of all Background Investigations conducted within the
Executive Branch. This is only natural, given the size of the defense es-
tablishment.and the highly classified nature of much of its activity. The
quality of the personnel security program in the Department of Defense
is, therefore, of vital concern.
Civilian employees of DOD fall under the provisions of Executive Or-
der 10450. Military personnel are not governed by EO 10450, but in-
stead are screened under a parallel program which is basically similar
to that which governs the civilian employees, but whose authority de-
rives from the president's inherent power as commander-in-chief of the
armed forces, rather than from an executive order or act of Congress.
The present military personnel security program is based on DOD Di-
rective 5200.2-R, 1979. The purpose of this directive is stated in the fol-
lowing terms:
To establish policies and procedures to ensure that acceptance and re-
tention of personnel in the Armed Forces, acceptance and retention of
civilian employees in the Department of Defense (DoD), and granting
members of the Armed Forces, DoD civilian employees, and other affili-
ated persons access to classified information are clearly consistent with
the interests of national security.
Like all other government departments, DOD's personnel security
program has suffered grave damage as a result of the destruction of the
domestic intelligence data base, the virtually complete suspension of
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domestic intelligence activities by law enforcement agencies, and the
impact of privacy legislation on the investigative process. Defense De-
partment officials claim a much higher degree of cooperation from gov-
ernment agencies and private institutions and citizens than does the
OPM. (OPM challenges this.) But the degree of cooperation makes
very little difference when there is no domestic intelligence available.
The director of the Defense Investigative Service (DIS) told the author
that, while his service does receive a good deal of criminal history infor-
mation from local law enforcement agencies, he could not recall a sin-
gle item of information from local sources in recent years that had to do
with the matter of subversive associations.
The FBI does possess extensive domestic intelligence files going back
beyond 1976, but it has added precious little new intelligence since that
year. Since virtually all military enlistees are in the 18 to 21 age group,
the FBI's pre-1976 domestic intelligence files have very little relevance
as a data base for screening out youthful left-wing and right-wing ex-
tremists who might pose a danger to the integrity of the armed forces-
as potential saboteurs, as inciters of racial incidents, as espionage
agents, or as revolutionary agitators who might at some future date sur-
face on command. About the best DOD can hope to do is to keep a care-
ful eye open for troublemakers after they pass the point of induction.
Although the DOD does much better when it comes to simple crimi-
nal history information, even in this area it has been having a lot of dif-
ficulty. A study by SEARCH GROUP, Inc.* reported that the recruiting
services were having major problems in obtaining criminal justice or re-
lated data. It said that "the recruiting -commands are often denied ac-
cess to criminal history data even in states that provide access to other
DOD components and to other federal agencies." It quoted the follow-
ing paragraph from the December 1978 issue of DOD's Command
magazine:
A Marine Corps study found that the flaw in current recruiting is not
so much malpractice as it is the recruiter's inability to check out the ap-
plicant's statements. Many school and police jurisdictions simply take a
strict approach and provide no personal information. It leaves recruiters
with no means of checking out statements.
The SEARCH study points out that DOD's ability to obtain access to
criminal history information varies significantly from one state to an-
other. Because of sealing and purging standards and other limitations,
only 17 states release both conviction and nonconviction data to DOD
requestors; 15 states release only conviction data; four states provide
*Search Group, Inc., "Federal Access to State and Local Criminal Justice Information
for Federal Personnel Security and Employment Suitability Determination," Sacra-
mento, California, March 1979.
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little or no access to records; and the remainder are a mixed bag. While
noting that most states do cooperate in one degree or another with
DOD, the study reports that "only a small group of states disclose all
criminal history under all circumstances to all DOD components."
The blame for this situation stems to a large degree, says the study,
from a restrictive interpretation of Law Enforcement Assistance Ad-
ministration (LEAA) regulations. Under these regulations, state and
local agencies receiving LEAA assistance are barred from disclosing
nonconviction data to a noncriminal justice agency unless the disclo-
sure is for a purpose authorized by "statute, ordnance, executive order
or court rule." The restrictions persist despite a finding by LEAA's
General Counsel that under various statutes and executive orders, the
DIS does qualify to receive nonconviction information.
Senior DOD officials concerned with the program told the author
that, while they feel that they do better than most other government
agencies, their difficulties in accessing information, instead of dimin-
ishing, have continued to grow in recent years.
Thanks to all these limitations, there are some worrisome shortcom-
ings in DOD's personnel security procedures at several levels.
Enlistees, as has been pointed out, are required to undergo an
ENTNAC, which is an NAC without a fingerprint check. This is sup-
plemented at the point of recruitment by form inquiries sent out by the
various recruiting commands to high schools and to state and local
criminal justice agencies. DOD officials feel that this makes the
ENTNAC the virtual equivalent of an NACI, minus the fingerprint
checks. DIS says that it dispenses with the fingerprint search in the
case of enlistees because an ENTNAC search comes back in 28 days,
while a full NAC takes an average of 59 days. This delay, they say,
could have a serious adverse effect on the recruiting process. The ques-
tion remains whether it would not be sounder procedure to induct
enlistees on the basis of an ENTNAC, and then proceed with the finger-
print check. To this, DOD replies that their studies have shown that
very little potentially disqualifying information has been lost through
omitting the fingerprint check from the ENTNAC program. On this
point, DOD's evaluation appears to be in conflict with that of other
agencies, including the intelligence and law enforcement agencies. Per-
haps this is an area where a study conducted by an independent panel
of experts might be helpful.
If the ENTNAC turns up no disqualifying information, the enlistee is
taken aboard and qualified for access to information and technology up
to the level of Secret. This is reason for serious concern when one con-
siders, to take one possibility of many, that a youthful radical, com-
mitted to the defeat of the United States in the event of war (a cardinal
tenet of all Marxist-Leninist groups), might easily qualify as a crew
member aboard a nuclear missile submarine or, after taking a course of
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instruction, as a computer programmer. (While all officers aboard nu-
clear submarines undergo a background check-now an IBI-the ma-
jority of enlisted men do not.) Unfortunately, DOD, with the best of
intentions, can do nothing about this situation in the absence of a do-
mestic intelligence program and data base, and in the absence of any
official guidelines.
The dangers inherent in recruiting youthful followers of the numer-
ous Marxist-Leninist groupings and organizations become apparent
from even a random reading of their press. For example, Challenge,
the newspaper of the Maoist Progressive Labor party, said in its issue of
December 23, 1981:
Our Party is actively organizing some working class youth across the
U.S. to win them to the fight for socialist revolution in the schools, in the
communities, and inside the military. Those of our comrades and friends
in the military are organizing there to win soldiers and sailors to join with
the rest of the working class to turn imperialist World War III into a civil
war for socialism... .
This is the vintage Leninist position on the duties of revolutionaries
in imperialist countries in the event of war. With minor variations, it is
one of the most frequently repeated dogmas of the entire revolutionary
left. It would be prudent for the Free World to take with deadly serious-
ness the Marxist-Leninist commitment to work for the defeat of their
own country and to turn the "imperialist" war into a civil war for
socialism.
Civilian employees are accepted by DOD on the basis of an NACI, with
access, again, up to the level of Secret. To the author this appears to be
a quite inadequate level of investigation in a department where much of
the information to which such a clearance gives access is so extremely
sensitive. DOD officials with whom the matter was discussed were quite
frank in admitting that even the NACIs they receive are frequently un-
satisfactory or incomplete. They said that OPM, which conducts the
NACIs for DOD civilian employees, frequently sends in reports which
fail to follow through on the disposition of arrest information, fail to
check or develop negative information by subject interviews, and suffer
from gaps in the Inquiries portion of the NACI because OPM does not
make a second effort to obtain a reply if its first communication is ig-
nored. The armed services have on occasion sent back such incomplete
NACIs to OPM with the request that they make a special effort to ob-
tain the additional information. OPM claims that the problem is very
much exaggerated. In a recent letter to DOD dealing with this com-
plaint, OPM noted that, over the period April 1, 1980, to June 30,
1981, it had conducted a total of 90,000 NACIs for DOD, of which 65,
or 0.07 percent, were returned for further investigation. Of the 65 re-
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turned NACIs, 22 received further investigation. The other 43, OPM
decided, did not require further work.
Members of the armed forces can now be cleared for access to Top
Secret information on the basis of an "Interview-oriented Background
Investigation" (IBI), consisting of a one-hour interview (average re-
ported duration), an NAC, a credit check, and, in some cases, "select
scoping," in which investigators seek to zero in on problem areas sug-
gested by the interview or the NAC. (The IBI will be discussed in more
detail in the pages that follow.) Civilians, however, whose clearances
are governed by OPM rules, must undergo a full field Background In-
vestigation to qualify for Top Secret. This is supplemented, as is always
the case, with an NAC. Retired FBI officials and personnel security of-
ficers with whom the author discussed the matter uniformly expressed
the opinion that, although personal interviews can be very useful tools,
the IBI by itself is a seriously inadequate investigative procedure to jus-
tify access to Top Secret.
Access to the most sensitive kind of information, Sensitive Compart-
mented Information, requires a full fifteen-year BI. More than this
would be unreasonable.
There is reason for concern, too, about the state of DOD's industrial
security program for industrial contractor personnel. For Confidential
clearances, DOD relies on checks make by the contracting companies.
For Secret clearances, it requires an NAC-a procedure, to repeat again,
that has been gravely devalued from a national security standpoint. For
Top Secret clearances the rules require an IBI. The investigations are
conducted by the Defense Investigative Service (DIS), but the actual
clearance decision is made by the Defense Industrial Security Clearance
Office (DISCO). If DISCO refuses clearance, the case is sent to the Pen-
tagon for review. If the decision is still negative, there are provisions for
the company or employee to appeal with an assurance of due process.
A GAO report of September 15, 1981, "Faster Processing of DOD
Personnel Security Clearances Could Avoid Millions in Losses," stated
that, to avoid extensive delays in some programs, DOD has had to issue
an increasing number of interim clearances to industrial personnel.
Like the waivers of pre-employment security investigations that have
been granted so extensively by other government departments, the in-
terim clearance is followed at some later date by a National Agency
Check and a Background Investigation. The GAO report said that
9,600 interim clearances were issued to industrial personnel in 1980,
compared to 6,100 in 1978. It noted that an unknown number of the in-
terim clearances issued had to be revoked subsequently because of dis-
qualifying derogatory information developed by the investigation.
"GAO believes," said the report, "that the increase in the use of in-
terim clearances increases the risk to the national security."
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In response to this criticism, DOD says that interim clearance proce-
dures are based on many factors, including the clearance level required,
the sensitivity of the assignment, etc. They point out, for example, that
in the case of a request for Top Secret clearance, an interim clearance
may be granted only after an NAC has been favorably completed and
the IBI has been initiated. This interim procedure, says DOD, when
properly implemented, provides a judicious balance between security
considerations and the manpower needs of DOD.
As things stand today, those in charge of personnel security at DOD
may be correct in this appraisal. The question is whether it would not
be far better to provide the DIS with the necessary manpower to enlarge
the scope of their investigations, and, at the same time, to keep up with
their investigative workload so that no significant detriment to the de-
fense production program would result from the delay in processing
clearances in the proper sequence. It would also be helpful if DOD
could fill in the quantity for the "unknown number of interim clear-
ances" which the GAO said had to be revoked subsequently because of
disqualifying derogatory information.
This situation has come about primarily because the Defense De-
partment's personnel security program has suffered drastically from
budgetary constraints. In 1976, Congress, in an ill-considered action,
mandated a 27 percent cut in the personnel of DIS. By June of 1981,
DIS had a backlog of some 83,000 investigations waiting to be com-
pleted. This figure included prospective employees, defense contractor
employees, and officers and enlisted men awaiting assignment in sensi-
tive positions. According to a June 1981 memorandum to the secretaries
of military departments, the Chairman of the Joint Chiefs of Staff and
directors of Defense agencies, DIS was at that time opening a thousand
cases a week more than it closed, and this had produced a situation in
which large numbers of personnel could not be productively utilized be-
cause they did not have security clearances. This had resulted in a seri-
ous degradation of operational readiness. It was also delaying, in some
cases by more than a year, the finalization of contracts for classified
hardware because new contractors and their employees had to undergo
security checks before they entered into production.
For once, the General Accounting Office, which has generally called
for more economy in the government's personnel security program,
came to the rescue. On September 15, 1981, the Comptroller General
sent to the Congress a report, previously quoted, captioned, "Faster
Processing of DOD Personnel Security Clearances Could Avoid Millions
in Losses." The GAO stated:
Security clearance requests for DOD and industry personnel have in-
creased substantially since 1978 without a corresponding increase in
DOD and FBI personnel who investigate and process the requests. Pro-
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cessing delays-some averaging 220 days-are costly and could weaken
national security. Based on an industry study, GAO estimates that 1982
productivity losses could cost the government as much as $920 million-
$340 million for industry and $580 million for DOD.
The report noted with approval that the Deputy Undersecretary of
Defense for Policy had asked the Secretary of Defense for an additional
$12.5 million for DIS to cover 880 new positions, including 595 investi-
gators. In December 1981, 768 additional spaces were authorized for
DIS, approximately two-thirds of which will be filled by investigators.
The authorized expansion of DIS is still in process. It will contribute
somewhat to reducing the backlog, but almost certainly not enough-
especially if DOD cancels the abandonment of reinvestigations and
returns to the requirement for full field Background Investigations, in-
stead of IBI's, for all those with access to Top Secret and over.
The report also noted that the FBI Identification Division, which
checks fingerprints in connection with all government employee secu-
rity programs, was badly understaffed, with the result that its turn-
around time had increased from fourteen workdays in 1978 to 58 calen-
dar days in June of 1981. This obviously contributed to the processing
backlog at DOD. It recommended that the Identification Division be
substantially augmented, suggesting the addition of 570 new positions
at a cost of about $7.8 million.
The amounts suggested in connection with both of GAO's recom-
mendations are miniscule against the standards of contemporary gov-
ernment spending. They are expenditures that are vital to the domestic
and national security. The question remains whether Congress and the
Administration will show sufficient understanding of the problem of
personnel security to make the very modest budgetary changes recom-
mended by the GAO.
To help cope with its horrendous investigative backlog, the June 1981
DOD memorandum, signed by Undersecretary Frank Carlucci, called
for a moratorium on all periodic reinvestigations, a blanket prohibition
on BIs for those whose access was at the Secret or lower level, and the
reassignment of investigators from other military departments to the
DIS. In the case of military personnel under consideration for Top
Secret clearance, it called for substituting the IBI, consisting of an in-
tensive interview with the subject, for the full field BI, which involves
personal interviews with a substantial number of third parties and
searches of records.
By mid-September 1982, the backlog had been brought down to ap-
proximately 50,000 cases.
Senior DOD officials concerned with the personnel security program
take the stand that the shift to the IBI was made in the interests of im-
proved quality rather than the interests of economy. They refer to a
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study conducted by DOD* in which 471 cases-appropriately divided
between military personnel, DOD civilians, and industrial contract em-
ployees--were evaluated according to both the old method and the new
method. According to the report, the two types of investigation turned
up a total of 186 items of significant adverse information. Of the 186,
both the old and the new forms of investigation produced adverse infor-
mation in 92 cases, or 49 percent; the old type investigation turned up
adverse information in another 22 cases, or 12 percent; and the IBI
turned up adverse information in another 72 cases, or 39 percent.
DOD officials further point out that the evaluation of the IBI pilot
project was accomplished by senior adjudicators of the various DOD
components, who carefully reviewed the entire investigative process.
Long-time personnel security professionals express serious reserva-
tions about these findings. One reason for their skepticism is that the
DOD report gives no indication of the degree of thoroughness of the BI.
They say it is important to know how many witnesses were interviewed,
whether the interviews were conducted in person or over the telephone,
how many records were searched, and the facts about other variables.
They point out that the figures themselves do not indicate the type of
adverse information volunteered by the witnesses or its gravity. As an
example, they argue that if an interviewee were a member of the Com-
munist Party or some other extremist organization, he would almost
certainly not volunteer this information in response to a question-al-
though he might, to achieve credibility, admit to some nondisqualifying
peccadillos in his past record. They also take issue with DOD's asser-
tion that the old-fashioned full field investigation has become ineffec-
tive because there is no real "take" from neighborhood investigations
or interviews with persons given as references, professors, etc. They
point to the fact that our law enforcement and intelligence agencies all
insist on full field Background Investigations.
Personnel security officials in other agencies also point to a 1980 sur-
vey of the comparative effectiveness of neighborhood investigations
conducted by OPM and DIS. A joint memorandum signed on May 7,
1980, by William R. Fedor for the Office of the Secretary of Defense
and Harold T. Johnson for OPM reported that, in 109 cases reviewed
by OPM, 20 neighborhood checks, or 18 percent of the total, produced
"less than favorable information," and 11 percent of this information
was not available from other areas of coverage. In the case of DIS, of
188 cases reviewed, only five cases, or 2.6 percent, produced "less than
favorable information." The striking difference in results is probably
due to the fact that OPM did much more neighborhood interviewing
than DIS and that OPM interviews are all conducted on a personal ba-
*Department of Defense, Test Results, New Background Investigation, Washington,
D.C., March 1981.
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sis whereas DIS has frequently tolerated telephone interviews in an ef-
fort to economize on manpower and money. The results do, however,
strongly suggest that properly conducted neighborhood interviews can
add significantly to the information on which adjudications have to be
based in the case of critical-sensitive positions.
DOD officials counter these criticisms with the argument that they
have had more experience with investigations than any other agency
and the other agencies are simply behind the times.
Discussions with officials in a number of departments and agencies,
however, revealed no one in the field of personnel security who did not
have serious misgivings about the IBI.
A senior State Department official said that, while they find their
personal interviews with applicants for sensitive positions highly useful,
such an interview is, at the best, an adjunct to a full field investigation
rather than an adequate substitute for it.
A senior CIA personnel security professional went further. He said
that he considered the IBI a very serious danger to the national securi-
ty. He noted that the CIA interviews applicants in depth before they are
brought to Washington for polygraphing and processing-and it has
been their experience that many applicants, when interviewed in the
field by skilled professional investigators, will pass muster with flying
colors, while they flunk the polygraph miserably when the same ques-
tions are pat to them in Washington.
The Department of Energy refuses to accept an IBI conducted by the
Defense Department as an adequate background investigation for mili-
tary officers assigned to the Atomic Energy Commission. Several re-
tired FBI officials who were interviewed also expressed grave misgivings
about the IBI.
The situation calls for a thorough reexamination of the adequacy of
the IBI.
DOD personnel security officials readily agree that the most effective
system would be to combine the in-depth subject interview with the old-
fashioned BI based on third-party interviews and document searches-
as the intelligence and law enforcement agencies and the State Depart-
ment do. Their argument is that they have to accept budgetary con-
straints as a fact of life, that this compels them to make a choice
between the two approaches, and, confronted with this choice, they
have opted for the IBI over the BI.
This argument really goes to the heart of the matter confronting
those concerned with the problem of personnel security in our defense
establishment. By and large they are competent and dedicated profes-
sionals who have a genuine understanding of the importance of sound
security practices. But they do not make budgets or determine policy;
these things are done at higher levels of government. Only within very
narrow limits can they resist the restrictions on personnel security prac-
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tices that have been accepted by the OPM and most of the agencies it
services. They derive some satisfaction, for example, from the fact that
when OPM ruled in 1975 that applicants could no longer be asked
whether they were members of the Communist Party or other revolu-
tionary organizations, the Defense Department did not follow suit. But
it should be noted, conversely, that OPM has some legitimate criticisms
of its own regarding the personnel security procedures of DOD.
There is nothing DOD can do about the destruction of the domestic
intelligence data base or about the major damage done to federal em-
ployee security investigations by the Privacy Act and other privacy legis-
lation. As for their operating budgets, like good soldiers they have been
disposed to accept what has been given to them and have tried to do
their best in the face of incremental cutbacks that inevitably strike at
the integrity of the investigative process. They would be the first to
agree that with more staff they could do a better job. But until Congress
and the Administration remove some of the restrictions and provide
them with the necessary means, about the best we can hope for is the
sadly inadequate-and dangerous-investigative product we are now
getting.
The Intelligence Agencies and the FBI
There are two areas where government agencies still adhere or try
hard to adhere to fairly stringent personnel security requirements-the
intelligence community and the law enforcement community.
In September 1979 the Subcommittee on Oversight of the House Per-
manent Select Committee on Intelligence, after holding hearings with
the various agencies involved, brought out a staff report on Security
Clearance Procedures in the Intelligence Agencies. The report reviewed
procedures in both the intelligence-producing agencies (the CIA, the
Defense Intelligence Agency, and the National Security Agency) and
the major intelligence-using agencies (the State Department and the
Department of Defense). It found tremendous differences in standards
and procedures. "Each agency," it reported, "conducts its own investi-
gation, and all such investigations differ one from the other in depth,
scope and technique." The investigation of the Subcommittee focused
heavily on the procedures used to screen applicants for access to Sensi-
tive Compartmented Information (SCI), a category of intelligence data
that calls for special controls in handling restricted information within
a compartmented intelligence system.
Despite the very limited value of the current National Agency Checks
and the restrictive effects of privacy legislation, the CIA and the NSA
have made great efforts to keep their background checks effective.
While most government agencies check back only on the last five years
of an applicant's life (or the years from the eighteenth birthday, which-
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ever period is shorter), the CIA's Background Investigation of appli-
cants goes back fifteen years (or the years from the eighteenth
birthday). It interviews a minimum of five character references with a
view to establishing the habits, loyalty, character, and morals of the in-
dividual. In addition to organizational associations, it considers such
factors as emotional stability, personal idiosyncracies, financial respon-
sibility, employment record, marital difficulties, alcohol abuse and
other drug use, homosexuality, and gross character deficiencies. The
applicant must submit to both a physical exam and a psychiatric screen-
ing. The CIA also requires polygraph examination of all applicants.
Everyone who has unescorted access to the CIA premises must undergo
such an examination, including guards, cleaners, contractor personnel,
and military personnel.
According to the House subcommittee report, the CIA turns down
approximately 10 percent of all applicants for reasons of trustworthi-
ness or security-a very high percentage when compared with other
government agencies. Of the ten percent rejected, fully 75 percent were
turned down because of their polygraph performance or because of the
combination of this performance with Background Investigations. Only
24.5 percent were turned down because of information developed by
the Background Investigation itself. In addition, many of those-ap-
proximately 5 to 6 percent-who apply to CIA do not make it beyond
the screening unit that receives their applications and gives them pre-
liminary interviews. An additional 7 percent fall by the wayside after
the initial screening and security check for reasons of suitability. In all,
therefore, approximately 23 percent of those who apply to CIA do not
make it.
The CIA tries hard to be fastidious about periodic reinvestigations of
its employees. The first two and one-half years are considered a proba-
tionary period. At the end of this time, the employee must undergo an-
other investigation, which includes a complete polygraphic examination,
including questions about life style. Thereafter, the reinvestigations are
conducted at five-year intervals. If anyone receives an overseas assign-
ment, his entire file is rescreened before he is dispatched. If there is any
reason to have doubts about an employee because of his behavior or be-
cause of adverse information received subsequent to his employment,
an investigation, again including a polygraphic examination, can be or-
dered at any time.
The guidelines for adjudicators are considerably more stringent than
they are in other sectors of the government. For example, whereas other
government departments tend to regard the use of marijuana at the
best as a medical problem with no application to security, the CIA con-
tinues to regard marijuana as a legitimate security issue.
A basically similar procedure, with certain differences, is followed by
the National Security Agency. The polygraph examination is the first
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step in the NSA's clearance process for civilian employees, and NSA ex-
plicitly uses the polygraph as a primary tool for the development of
adverse information. Unlike the CIA, the NSA does not, however, re-
quire military personnel attached to their agency to submit to the poly-
graph unless they volunteer to do so.
NSA reported to the Subcommittee that at least 95 percent of all neg-
ative information on applicants came from the polygraph. Of 2,531 ap-
plicants who were processed during fiscal year 1978, 775, or 32 percent,
were rejected. Still more striking were NSA's statistics on clearances
granted. for access to Sensitive Compartmented Information (SCI). Of
1,799 applicants whose processing was completed during fiscal year
1978, only 1,024 were granted SCI clearance while 775 were denied
clearance. These results appear draconian when compared to those of
the Defense Intelligence Agency which granted SCI clearances to 5,937
employees in the same fiscal year while denying clearance to only 48, or
to those of the Army which granted SCI clearance to 9,790 while deny-
ing it in 710 cases.
No study exists of personnel investigative procedures of the FBI com-
parable to the report on the intelligence community procedures that we
have just quoted. But it is noteworthy that the FBI, in its comment on
the report proposing the establishment of the new five-level personnel
security program (see page 46), made the observation that it would con-
tinue to give all applicants for employment with the Bureau a fifteen-
year Background Investigation.
The Departments of State, Justice, and Energy
While the focus of this paper is primarily on the Office of Personnel
Management and the Department of Defense, which together account
for the bulk of the Federal Employee Security Program, the author
spent some time with the personnel security officials in the Department
of State, the Department of Justice, and the Department of Energy.
The notes that follow indicate what some government departments
have done to try to cope with the limitations and prohibitions imposed
on them by court decisions, or bureaucratic interpretations of court
decisions, and the agonizing paucity of funds for personnel security
purposes.
The Department of State
While the State Department has all of its National Agency Checks
conducted by the OPM, the bulk of its Background Investigations-
roughly 1,200 to 1,400 per year-are conducted by its own corps of Spe-
cial Agents. These Special Agents are highly trained: they have to go to
school for nine or ten weeks before they are assigned. In addition to do-
ing the personnel investigations for the Department, they have other
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duties such as the protection of visiting VIPs, the investigation of
fraud, etc.
For all positions with access to Top Secret and all Foreign Service po-
sitions, the Department requires a seven-year full field Background In-
vestigation and for a limited number of highly sensitive posts it requires
investigations of fifteen-year scope. The Special Agent reinforces the
field investigation of the applicant with a one to one and one-half hour
personal interview. If information is developed in the course of the ini-
tial BI and personal interview that suggests the need for further investi-
gation, the applicant may be called back for a re-interview that may
run from one to three hours. The file is then sent to an evaluator (the
equivalent of adjudicator in other departments), who makes a decision
based on the information in the file.
The Department's personnel security division confronts the same dif-
ficulties as other government departments in trying to do the job it is
supposed to do. The Privacy Act and the absence of a domestic intelli-
gence data base render their National Agency Checks virtually worth-
less from the standpoint of screening out subversives and extremists,
and of limited utility in identifying applicants with criminal back-
grounds. Drug usage and homosexuality are matters of serious concern
to them, but under the "nexus principle" (It's giving us fits," one of-
ficer told the author), there is frequently not much they can do when
such information crops up in the course of an applicant investigation.
Like all other government departments, they are bound by the laws and
by the decisions of the Justice Department.
Their evaluators must be cautious in arriving at any negative deter-
mination (1) because the Jane Doe decision makes all of them liable to
court suits if the applicant takes exception to their ruling; (2) because
under the Privacy Act, applicants can access not only the investigative
file, but also the evaluator's report; and (3) because, in the case of liti-
gation, they know that the Justice Department lawyers are reluctant to
defend, and there must always be some uncertainty about the financial
costs to the employee if the case actually does come to court. The pres-
ent position is that the Justice Department will defend an investigator
or a personnel security official if he has not himself acted in violation of
the law. The trouble is that there are differing interpretations of the
law, and the conscientious personnel security officer would, in some
cases, interpret the law in a manner not acceptable to the Justice
Department because he considered the applicant a serious security risk
or otherwise unworthy of government employment.
There are many such cases involving various government departments
before the courts today-this despite the fact that the government
bends over backwards to grant administrative due process to disap-
pointed applicants. In the case of any adverse decision, the evaluator's
report will probably go for review to the division chief. If there still re-
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mains some question, it may be referred for final review to the director
of personnel security for the Department. And if the adverse determi-
nation still stands, the applicant can ultimately appeal his case to the
Undersecretary for Management.
Those in charge of personnel security at the State Department have
strong feelings about the advisability of keeping waivers of pre-employ-
ment Background Investigations to a minimum, and they say that the
Reagan Administration has been pretty good about not pressuring
them for such waivers. They strongly endorse the importance of pe-
riodic reinvestigations at five-year intervals and they try to conduct
such investigations for the most sensitive positions. But they are frank
in admitting that, because of budgetary limitations, they are not able to
meet the problem as well as they would like to. They thought that they
might be conducting regular reinvestigations of perhaps 10 percent of
the Department's employees who have secret access clearances. When
such investigations are conducted, they generally include a review of
the file, an updated NAC, a credit check, and personal checks with the
employee's last supervisor and perhaps one or two developed sources.
They express concern about the Defense Department's acceptance of
the IBI (Interview-oriented Background Investigation) because they are
afraid that, if its use becomes the accepted practice in a department as
sensitive as DOD, the pressure will be on other sensitive government
agencies to economize in the manner of DOD. From their own experi-
ence with background interviews, they consider them very useful as
adjuncts to full field Background Investigations, but definitely not a
substitute for them.
In the case of the State Department, as in the case of several of the
other agencies with whom interviews were conducted, one has the im-
pression of a dedicated group of professionals trying hard to do an ef-
fective job under limitations that make it utterly impossible.
The Department of Justice
The Department: of Justice (DOJ) has its own Personnel Security Reg-
ulations. The regulations currently in use, published on August 18,
1978, bear the identifying number DOJ 2610.2. Under these regula-
tions, within the limitations imposed by existing law, the Department
appears to be doing a conscientious job of trying to optimize an exceed-
ingly frustrating and difficult situation.
Attorneys, law clerks, Schedule C employees, and all employees in
the office of the Attorney General and his senior aides, as well as all po-
sitions in the FBI, are investigated by the FBI itself. Applicants for all
other positions are investigated by the CSC/OPM, unless the OPM del-
egates the responsibility for the investigation to an alternate investiga-
tive agency.
Unlike most other departments in government, the Department of
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Justice has only nonsensitive and sensitive positions-the sensitive be-
ing interpreted in a manner which embraces both sensitive and critical-
sensitive as these terms are used by the OPM. The section defining sen-
sitive positions within the DOJ is much more comprehensive than the
comparable definitions in the personnel security regulations of most
other agencies.* However, even in the Justice Department, there have
been problems in defining sensitive positions and then designating
them. Under Department orders promulgated several years ago, for ex-
ample, a sensitive position is defined as one where the occupant has ac-
cess to national security information. By common-sense standards,
however, there are many highly sensitive positions where the occupants
do not have such access. This includes law enforcement officers, Drug
Enforcement Agency (DEA) employees, and U.S. marshals and their
supporting clerks who in some cases may be involved in very sensitive
operations such as witness protection.
The officers in charge of the personnel security program of the De-
partment of Justice are keenly aware of the gravity of the problem
throughout the government, not excluding their own department. They
point out that their own regulations still take a strong stand against the
hiring of applicants to fill sensitive positions prior to the completion of
full field Background Investigations, without the signature of the head
of the organizational unit to which the applicant is to be assigned, af-
firming that the waiver is in the national interest. This certainly puts
them significantly ahead of most government agencies, where the
waiver of pre-employment investigation has, as we have pointed out,
now become the general rule.
They also insist that, despite the limitations of funds, they try hard to
conduct periodic reinvestigations of incumbents of all sensitive posi-
tions at intervals of five years as is required by the regulations. They
note, however, that in their own department, as in all other depart-
ments, there is a built-in conflict between the personnel division and
the division in charge of personnel security. Officials in the personnel
division are primarily interested in filling vacant positions with bodies
that can put out an acceptable performance. They are not oblivious to
the requirements of personnel security; on the other hand, because
their positions demand no such competence, they have only limited
knowledge and understanding in this area. Conversely, officials in the
division of personnel security are concerned primarily with the require-
ments of security and are perhaps inclined to underestimate the prob-
lems of personnel directors.
One of the core problems, they feel, is the need for a firm and clear
definition of sensitive positions. At the very least, it is their belief, the
definition should be stretched to cover all positions directly involved in
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law enforcement activities. How difficult the situation has become is
apparent from the remarks of one prominent Justice Department
lawyer, who said that, "As things are today, in order to disqualify
someone who has a revolutionary record for employment, we would just
about have to be in a position to prove a charge of treason against him."
The Department of Energy:
Problems of Personnel Security in Atomic Energy Installations
The state of our personnel security program in our atomic energy in-
stallations calls for special consideration because most of the installa-
tions and activities covered by the program operate with contract
employees. These activities include the research and development,
manufacture and testing of nuclear weapons, production of special
nuclear material, and the Navy's nuclear reactor program.
As far as its own employees are concerned, the Department of Energy
(DOE) appears to have reasonably tight procedures-at least somewhat
tighter than in many other sectors of the government. To a large de-
gree, this is because of the provision written into the Atomic Energy Act
of 1954; Section 145, for example, stipulated that nothing in any execu-
tive order shall conflict with the provisions of the Act, while Section
161B authorized the Commission to promulgate its own rules and regu-
lations designed to protect the security of its operations-including the
physical security of installations and special nuclear materials; to pro-
tect the health of its employees; and, in general, to minimize the danger
to life and property. In other government agencies, the classification of
information is an administrative action. In the case of the Atomic En-
ergy Commission /Department of Energy, restricted data is classified
by law.
The Atomic Energy Act of 1954 requires that all contractors and con-
tractor employees be the subjects of security checks. The Atomic En-
ergy Commission (now the Department of Energy and the Nuclear
Regulatory Commission) was made responsible for determining the
scope of these checks, while the CSC/OPM has the responsibility for
conducting the security checks. EO 10450 calls for an NACI as the min-
imum investigation for federal employees. However, in the case of the
many thousands of contractor personnel who work in noncritical-sensi-
tive positions, the Atomic Energy Commission interpreted the Atomic
Energy Act as meaning that only government employees had to be cov-
ered by NACIs and that other contract personnel at this level could be
covered by National Agency Checks only. This resembles the situation
in DOD, where contractor personnel have access to Secret on the basis
of an NAC. Such an arrangement, as has been pointed out several
times, has become almost completely worthless because of the destruc-
tion of virtually the entire domestic intelligence data base.
There are, needless to say, many thousands of critical-sensitive posi-
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tions in our atomic energy installations that are filled by contract em-
ployees. In recent years the filling of such sensitive positions has
required an average of approximately 15,000 Background Investiga-
tions per year, which represent roughly two out of three of all Back-
ground Investigations conducted by the OPM for all government agen-
cies. These investigations are conducted at an average cost today of
$1,600 per case, for a total expenditure on personnel security of $24.3
million.
Here again, because of the limitations that affect all sectors of the
federal establishment, we wind up with what might be described as a
general suitability investigation devoid of any significant national secu-
rity component.
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Three Areas of Special Weakness
Waiver of Pre-employment Field Investigations
for Sensitive Positions
From a personnel security standpoint, one of the most dangerous
practices that has established itself over the past two decades is the
widespread resort to the waiver of full field investigations prior to filling
critical-sensitive positions with applicants or appointees.
Executive Order 10450 provided for the use of such waivers only "in
case of emergency"; in each case the head of the agency had to approve
the appointment as "necessary in the national interest." The justifica-
tion universally invoked in defense of this increasingly widespread prac-
tice is that the OPM's Division of Personnel Investigation (DPI)
generally took from 80 to 110 days to complete the average full field in-
vestigation and that this delay greatly complicated the hiring process.
In the interest of moving ahead and filling vacant critical-sensitive posi-
tions, a majority of the agencies apparently now feel that the cost of
leaving such positions unfilled for several months outweighs any risk
that may be involved in a post-appointment investigation.
How widespread the waiver practice has now become may be gauged
from the following table, reproduced from a survey put out in Septem-
ber 1980 by OPM's Office of Internal Evaluation.
Percentage of Background Investigations Processed Post-Appointment
6-1-80 to 7-15-80
Agriculture
98%
(42 of 43 cases)
FCC
100%
(2 of 2)
HHS (HEW)
96%
(73 of 78)
IDCA (AID)
34%
(23 of 68)
Justice-BOP
94%
(137 of 146)
Justice-DEA
32%
(14 of 44)
NSA*
67%
(6 of 9)*
SEC
(no reports during this period)
SBA
90%
(9 of 10)
DCT
90%
(26 of 29)
VA
100%
(4 of 4)
*The percentage given for NSA is really misleading because OPM processes only guard
positions for the Agency. NSA processes the great majority of its own applicants and
grants very few waivers for sensitive positions.
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When waivers of pre-employment investigations have become the
general rule, it is obvious that the heads of the agencies no longer ad-
here to the requirement that each such appointment be justified as
"necessary in the national interest." Nor do they follow the require-
ment of both OPM and EO 10450 that, where there is a waiver of pre-
employment investigation, the request for investigation be filed no later
than three days from the day of appointment.
Waivers are bad practice, from both the standpoint of weeding out se-
curity risks and the standpoint of weeding out incompetents, criminals,
and other undesirable elements. It is self-evident that most administra-
tors find it a much more difficult exercise in interpersonal relationships
as well as government-employee relationships to dismiss an employee
after he has been in the office for two or three months than they would
to deny him employment in the first place if a full field investigation
turned up information justifying denial or raising serious questions of
suitability. In addition, to dismiss someone after appointing him to a
sensitive position is also a reflection on the judgment of the selecting
administrator. The study from which the above table was reproduced
points out that "the three agencies which process a substantial propor-
tion of their Background Investigations reports prior to appointment
(IDCA, DEA and NSA), reported making other than a favorable deter-
mination at a rate nearly double that of the other eight agencies." (Em-
phasis in the original.)
The waiver of pre-employment field investigations has over the years
been the subject of recurring complaints by officials of the CSC/OPM
and the Department of Justice concerned about sound personnel secur-
ity practices. For example, on March 7, 1972, Robert E. Hampton,
Chairman of the CSC, sent a three-page letter to the heads of all agen-
cies strongly criticizing the waiver practice that had become common in
many agencies and urging a return to the pre-employment full field in-
vestigation as the normal procedure. The letter quoted the following
paragraphs from a communication sent earlier that year by Robert C.
Mardian, Assistant Attorney General, Internal Security Division, De-
partment of Justice:
I question the wisdom of such a practice at any time, and I am par-
ticularly disturbed that such a practice apparently is being utilized on a
fairly widespread basis. The fact that an individual is not permitted ac-
cess to classified information pending completion of a full field investiga-
tion only deals with one aspect of the problem. As you well know, access
to classified information is but one of the criteria utilized for designating
a position as critical-sensitive. A person in such a position may very well
be in a position to make or effect policy decisions of the utmost impor-
tance....
The Department of Justice considers it extremely important that ap-
plicants for or appointees to critical-sensitive positions receive a full field
investigation prior to appointment... .
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The Hampton letter pointed out to the delinquent agencies that a
number of agencies, including the Department of Justice, had resorted
to waivers only on rare occasions, and had found it "both feasible and
advantageous to conduct pre-employment full field investigations." In
addition to the obvious advantages from a security standpoint, the let-
ter said, pre-employment investigations also serve the selection process
by helping to develop advance information about general abilities,
growth potential, trustworthiness and personal integrity, and other
qualities that call for consideration.
But despite the almost universal recognition of the dangers of post-
employment investigations, the practice has become more widespread,
year by year, until today it has become the norm in many government
agencies.
Under its current director, Mr. Peter Garcia, DPI has now reduced
the average time requirement for a full field investigation to 73 days
and hopes to get it down to 60 days. However, the government agencies
queried by the Office of Internal Evaluation indicated that DPI would
need to provide 30-day or better service before they would be willing to
delay appointments pending completion of investigation.
This attitude on the part of the agencies really begs the question. It
must be emphasized again that when we talk of full field "Background
Investigations" we are really talking of the very small percentage of
government positions that have been designated "critical-sensitive."
For such investigations, it makes no sense to aim for a rigid 30-day
deadline. A majority of the cases are simple enough to be processed in
30 days or even less-especially if the applicants can be persuaded to
voluntarily provide copies of their school records, birth records, their
divorce papers if they are divorced, and other documents that are not
readily available to the investigator, but about whose substance he
must seek to be informed. On the other hand, there are many very com-
plicated cases involving subjects who have held numerous positions in
different cities and different countries. Such cases may require more
than 60 days, even with the best of effort. And if adverse information is
turned up in the course of the investigation, checking it out carefully in
the interest of fairness is a process with unpredictable time requirements.
There are no shortcuts to sound personnel security procedures-as was
dramatically demonstrated recently by the forced resignation of Max
Hugel, who had been appointed director of CIA's covert intelligence
operations after an expedited seven-day background investigation. So,
while it is proper and helpful to aim for a mean deadline of 30 days, this
deadline should not be too rigidly construed.
Abandonment of Reinvestigations
The Federal Personnel Manual, as has been pointed out, calls for pe-
riodic reinvestigations of employees in sensitive positions at five-year in-
tervals. The Manual has this to say on the subject:
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The incumbent of each critical-sensitive position shall be required, five
years after his appointment, and at least once each succeeding five years,
to submit an updated personnel security questionnaire to the appropriate
security officer in his department or agency. This questionnaire shall be
reviewed, together with the personnel file of the incumbent, previous
reports of investigation concerning him, and any other appropriate docu-
ments. A determination shall then be made regarding what further ac-
tion, if any, is appropriate; for example, a check of local police and credit
records, a national agency check, or an updated full field investigation.
It would be folly to assume that from the standpoint of the national
security, one can stop worrying at the point where an applicant has
been employed on the basis of a positive Background Investigation.
Common sense suggests the importance of periodic rechecks, and the
five-year interval stipulated by EO 10450 and by the Federal Personnel
Manual is not unreasonable.
There is general agreement among personnel security professionals
on the importance of regular periodic reinvestigation. Even people of
good background and apparently solid character are frequently vulner-
able to financial pressures, sexual enticement, or blackmail. Indeed,
employees who pass their Background Investigations with flying colors
may succumb to such vulnerabilities.
As matters stand today, however, the reinvestigation, or the "update"
investigation as it is sometimes called, is far more frequently honored in
the breach than in the observance. The Department of Defense, as has
been pointed out, has indefinitely suspended reinvestigations in an ef-
fort to reduce its investigative backlog. OPM, which conducts reinvesti-
gations at the request of most other government agencies, reports a
dramatic falling off in the number of such requests received from key
departments and agencies in recent years. Between 1977 and 1981, the
number of requests received from GAO fell from 277 to 84; the State
Department from 114 to 50; NASA from 254 to 151. The figures for
previous years are not available, but there is no question that they were
substantially greater than for 1977.
This is an area where dramatic improvement would be possible,
given a combination of a firm administrative directive and the funds
necessary to restore the entire reinvestigative program to an adequate
level.
Americans Employed by International Organizations
On January 9, 1953, as one of his last acts in office, President Truman
promulgated Executive Order 10422, which set up, by agreement with
the United Nations, procedures governing the investigation of United
States citizens either employed or being considered for employment in
the Secretariat of the U.N. and its various agencies. The action was
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motivated by the embarrassment caused, both to the State Department
and the U.N., when 27 Americans in the employ of the U.N. were called
before the Senate Subcommittee on Internal Security during the course
of 1952, and repeatedly invoked the Fifth Amendment in response to
questions about communist associations. The employees in question
were dismissed by Secretary General Trygve Lie. When they appealed
their case, the Secretary General set up a commission of internationally
prominent jurists to consider their appeal and also to consider the
larger matter of how to avoid such situations in the future. Based on
recommendations of the Commission, there emerged an agreement be-
tween the Secretariat and the United States government under which
the U.N. committed itself not to employ any American national without
first submitting his name for a background check by the United State
government.
The Commission of Jurists denied the appeal of the dismissed em-
ployees and recommended against reinstatement. Speaking about the
uniform use of the Fifth Amendment by the plaintiffs, the Commission
said:
In our opinion, a person who invokes this privilege can only lawfully do
so in circumstances where the privilege exists. If, in reliance upon this
privilege, a person refuses to answer a question, he is only justified in do-
ing so if he believes or is advised that in answering he would become a
witness against himself.
In other words, there can be no justification for claiming this privilege
unless the person claiming the privilege believes or is advised that his an-
swer would be evidence against himself of the commission of some crimi-
nal offense. It follows from this, in our opinion, that a person claiming
this privilege cannot thereafter be heard to say that his answer, if it had
been given, would not have been self-incriminatory, or, if not, he has in-
voked his constitutional privilege without just cause.
As, in our opinion, he cannot be heard to allege the latter, he must, by
claiming privilege, be held to have admitted the former. Moreover, the
exercise of this privilege creates so strong a suspicion of guilt that the fact
of its exercise must be withheld from a jury in a criminal trial.
The Commission of Jurists advised the Secretary General of the
United Nations that he should regard it as of the first importance to re-
frain from employing any United States citizen who he has reasonable
grounds for believing is, or is likely to be, engaged in espionage or sub-
versive activities against the United States.
The Commission further advised the United States that it should
make available to the Secretary General information on which the Sec-
retary General might make a reasonable determination as to whether
sufficient grounds existed for believing that a U.S. citizen had engaged,
or was likely to engage, in espionage or subversive activities.
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Two paragraphs of the Preamble to EO 10422 are worth quoting:
WHEREAS in the participation by the United States in the activities of
the United Nations it is in the interest of the United States that United
States citizens who are employees of the Secretariat of the United Nations
be persons of the highest integrity and not persons who have been, are, or
are likely to be, engaged in espionage or subversive activities against the
United States; and
WHEREAS it is in the interest of the United States to establish a pro-
cedure for the acquisition of information by investigation and for its
transmission to the Secretary General in order to assist the Secretary
General in the exercise of his responsibility for determining whether any
United States citizen has been, is or is likely to be, engaged in espionage
or subversive activities against the United States...
The Executive Order established an International Organizations
Employees Loyalty Board inside the Civil Service Commission. This
board was given the authority in cases referred to it of inquiring into the
loyalty to the government of the United States of U.S. citizens who were
either employed, or under consideration for employment, by the seven-
teen United Nations organizations or the 63 other international organi-
zations of which the United States is a member.
The United States, like other member nations of the United Nations,
is provided with a certain quota of the U.N. Secretariat staff. The
quota, which is based on a rather complicated formula, will vary from
year to year. Last year this quota came out to 17 percent of the total
number of staff positions. Of the 508 professional positions provided
for by the American quota, quite a number were in senior policy areas.
While they are not employees of the American government, their em-
ployment impinges in a very direct way on the national security-not
only because U.N. activities are important but also because the KGB is
formidably represented in the U.N. apparatus. It was only reasonable,
therefore, that President Truman and the U.N. Secretariat should have
decided that it was in their mutual interest to set up a program provid-
ing for background investigations of American applicants for U.N. em-
ployment. Under the agreement, the U.N. Secretariat forwarded to the
State Department copies of all applications for employment by U.S.
citizens. The State Department had the Civil Service Commission con-
duct a Background Investigation; adverse findings were submitted for
the consideration of the International Organizations Employees Loy-
alty Board with provision for due process; and the results of the investi-
gation were forwarded to the U.N. The same procedure was followed in
the case of other international organizations. The total number of ap-
plicants processed annually has approximated 1,500 in recent years.
In December 1975, EO 10422 was modified by President Gerald R.
Ford in Executive Order 11890. While most of the original language of
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EO 10422 remained intact, the revision substituted a much reduced
level of investigation, the NAC, for the standard full field background
investigation that had previously been required. As has been repeatedly
pointed out in this monograph, today's NAC has very little substantive
significance. Indeed, as a background investigation bearing on loyalty,
it is close to worthless.
Actually, the NAC now required for applicants for employment by
international organizations is substantially less than the standard NAC.
Apparently the State Department took the stand that it would serve no
purpose to gather background information dealing with suitability be-
cause the only question really at issue was the applicant's loyalty. In
line with this, the CSC/OPM was instructed not to check criminal his-
tory files and not to make fingerprint checks. This is a questionable ap-
proach to the problem because it leaves the entire matter of suitability
checks to the international agencies-which, for obvious reasons, have
far more difficulty than the U.S. government in obtaining law enforce-
ment information and other information bearing on character and in-
tegrity. It is also a questionable procedure from a security standpoint
because, as we have pointed out, a criminal background makes an em-
ployee more vulnerable to recruitment as a result of blackmail or mone-
tary enticement.
The international organizations are very important places, and many
of the positions being filled are highly important positions. It is not just
the U.N., but an entire phalanx of related organizations like the World
Bank, the World Health Organization, the International Monetary
Fund, etc. For the year ending September 30, 1981, OPM processed
the NACs of 1,130 American citizens who applied for positions with the
U.N. and the other international organizations. This figure by itself
provides some indication of the scope of the problem. -It is of vital im-
portance that the United States government assure itself of the basic
loyalty of all those who move into such positions. It is of almost equal
importance, because every American employed by an international or-
ganization is in effect an ambassador of his nation, that criminals and
scoundrels of various varieties be flagged down before they are ap-
pointed to positions from which it would be difficult to remove them.
In further harmony with the general tendency to downgrade person-
nel security investigations, the form questionnaire that applicants for
positions in international organizations were obliged to fill out for the
State Department was reduced from five pages to one page.
One of the reasons given for retreating from a full field BI to a demi-
NAC was that, with the Civil Service Commission's investigative back-
log running from 90 to 120 days, it was unreasonable to impose such
delays on the personnel hiring process in the U.N. It is true that, from
an administrative standpoint, a 120-day delay in getting clearance for a
U.N. applicant would create all kinds of difficulties. But if Congress
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thinks it is important that we should be able to assure ourselves of the
loyalty of the American contingent of professionals at the U.N., then
clearly the solution is to provide OPM's Division of Personnel Investi-
gations with the manpower necessary to keep their investigations on a
30-day basis.
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Measures Necessary to Resuscitate the Program
So much damage has been done that, even with the most energetic
effort, it is going to be a long and difficult task to recreate a viable Fed-
eral Employee Security Program. In the paragraphs that follow we shall
examine some of the recommendations that have been made and out-
line those measures that the author considers essential to the revitaliza-
tion of the program.
Despite a potentially harmful overemphasis on cost cutting and effi-
ciency and inadequate emphasis on quality, the General Accounting
Office in a series of reports has made some recommendations that
merit attention. In its last report ("Costs of Federal Employee Security
Investigations Could and Should Be Cut") dated August 31, 1979, the
GAO recommended "that the Congress consolidate into one law the
authority to investigate and judge the suitability of federal employees,
including the potential of employees in sensitive positions to impair na-
tional security." It also said that Congress should consider:
? Restrictions imposed on personnel investigations by other laws
such as the Privacy Act of 1974 and court decisions protecting in-
dividuals' constitutional rights.
? Whether OPM should investigate occupants of nonsensitive posi-
tions only to determine prior criminal conduct, leaving to employ-
ing agencies the responsibility for assessing applicants' efficiency.
? The need to define, in a manner acceptable to the courts, disloyal
acts which should bar federal employment.
? The scope of investigation needed for the several levels of security
clearance granted federal employees.
? Whether there is a need in the legislation for provisions to aid OPM
to obtain local law enforcement information: for example, reim-
bursing local law enforcement agencies for supplying information,
receiving assistance from federal law enforcement agencies, or
clarifying OPM's legal authority to have local arrest information.
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These recommendations had originally been offered in a previous re-
port by GAO. GAO had also recommended in a prior report that, in
the interests of economy and the application of uniform investigative
standards, consideration be given to consolidating personnel investiga-
tions under one agency. In its August 31, 1979, report it seems to have
backed off somewhat from this last position. On the one hand, it points
out that "costs may increase as a result of consolidation because some
agencies have indicated a strong desire to retain their investigators for
other work, and the Office of Personnel Management may need more
staff." On the other hand, it appears to have been impressed by the re-
sistance to the consolidation proposal offered by most of the agencies
that today conduct all or even some of their own investigations. These
include the Department of State, the FBI, the Bureau of Engraving and
Printing, and the constituent law enforcement agencies of the Treasury
such as the IRS, the Secret Service, the Customs Service, and the Bu-
reau of Alcohol, Tobacco and Firearms. "These agencies," said the
1979 report, "explain that their positions required special investigative
work and that their investigators were more qualified and had access to
more criminal and fiduciary records than OPM." While this may very
well be true with regard to criminal and fiduciary matters, it is probably
not true with regard to the experience of their investigators in the na-
tional security field.
While conceding that applicants for certain sensitive positions today
undergo inadequate investigation, the GAO report argued that in many
cases the degree of investigation exceeds the requirement of the posi-
tion and that much money could be saved by abbreviating and stream-
lining investigations, encouraging the sharing of investigative resources
by the federal agencies and by having OPM adopt some of the demon-
strated. improvements that have already undergone testing in other
agencies. Finally, it urged that OPM move to develop adequate classifi-
cation criteria-that is, criteria defining which positions require which
degree of investigation.
The author of this paper, after long consideration, has come to the
conclusion that the advantages of centralizing personnel investigations
and adjudications far outweigh the disadvantages. The DOD, the intel-
ligence community, the FBI, and other segments of the law enforce-
ment community have requirements that exceed and are very different
from the requirements of other government agencies. It would make
sense, therefore, for these agencies to continue to operate their own
personnel security programs. However, once we have made these excep-
tions, the case for consolidating the personnel security apparatus be-
comes compelling.
It is not just a matter of applying uniform investigative and adjudica-
tive standards, important though this is in its own right. The consolida-
tion of personnel investigations and adjudications under a single agency
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would also save money at the same time as it improved the quality of
the employee security program. Clearly, it will be easier to maintain
high standards for investigators and adjudicators, if the program is in
the hands of a single agency, than it is today with the adjudicative pro-
gram fragmented on a government-wide basis.
Changes Proposed by the Interagency Task Force
In response to the GAO report, the OPM set up an interagency task
force to study the implementation of the GAO recommendations. The
task force report, which has now been finalized, centers around a pro-
posal for a new five-level system for designating the sensitivity of federal
positions. As has been pointed out, OPM and the other government
agencies currently conducting investigations operate on the basis of a
three-level system in which the designations are nonsensitive, noncritical-
sensitive, and critical-sensitive. The chart below lists, in the words of
the report, the five levels of the proposed system and the degree of in-
vestigation proposed for each level.
Level I Opportunity for effecting limited
but reversible damage to the
national interest.
Level II Opportunity for effecting significant
but reversible damage to the
national interest. (Level 11 has
access to national defense
materials through Secret.)
Level III Opportunity for effecting serious but
generally reversible damage to
the national interest. (Involves
duties concerning matters of
considerable importance to the
national defense; rights and
interests of individuals; protection
of property and lives; enforcement
of federal laws, regulations or
rules...; or the economic well-
being of the nation.)
Level IV Opportunity for effecting
exceptionally grave, not easily
reversible damage to the national
interest. (Involves duties
concerning matters of clearly
major importance to the national
defense, with access through Top
Secret; rights and interests of
individuals; protection of lives;
enforcement of federal laws;
economic well-being of the
nation; general public safety and
internal security; or continued
effectiveness and integrity of the
federal service.)
National Agency Check and
Inquiries (NACI), supplemented
by a credit check for financial
type positions.
Basic NAC plus Limited
Background Investigation (LBI),
involving one year personal
coverage plus four years' written
inquiry plus credit check.
Intensive coverage for the most
recent year to include in-person
interview of a minimum of three
knowledgeable witnesses.
Basic NAC plus Background
Investigation (BI) of five years'
scope, or back to age 18, with at
lease three years' coverage.
Credit check.
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Basic NAC plus Special Background
Level V Opportunity for effecting
inestimable, not easily reversible Investigation (SBI) of 15 years'
damage to the government's scope, or back to 18th birthday.
ability to effectively conduct the Fifteen-year employment check;
public's business domestically; five-year credit check; five-year
retain the public's confidence residence check; 15-year
and trust; defend the nation from education check, including three
foreign aggression; carry out the years' personal coverage; five-
nation's foreign policy objectives; year foreign travel check, plus
or protect against internal full coverage for overseas
subversion, espionage, sabotage residences of more than five years.
or other illegal acts which
threaten the public's safety or
internal security of the nation.
It was the thinking of the task force that the vehicle for implementing
the new five-level system should be a new executive order to replace Ex-
ecutive Order 10450, as amended, which is, by general consent, now
outdated. The task force also felt that in anticipation of a new executive
order, the participating agencies should move immediately to imple-
ment the new five-level system.
Although OPM has made no formal decision to move to the five-level
system, it is clear that there is widespread support for it. Certainly, a
fifteen-year background check appears in order for Level V positions,
and the degree of investigation required in the case of Level IV also ap-
pears adequate. But old hands in the field of personnel security share
the opinion that the degree of investigation called for in the cases of
Levels 1, II, and III is inadequate. In particular, they express misgiv-
ings about the proposal to reduce the NACI to an NAC in the case of
Level I positions. Foregoing written inquiries, they point out, would
make it impossible to find out whether the subject is who he claims he
is, or has lived where he said he lived, or has done what he said he has
done.
Serious consideration should be given to firming up the investigative
procedures in the proposed five-level system by
? increasing the NAC to an NACI in the case of Level I,
? adding an in-depth subject interview to the NACI in the case of
Level II,
? substituting a standard Background Investigation (BI) in the case
of Level III,
? adding an in-depth subject interview to the Background Investiga-
tion in the case of Level IV,
? adding an in-depth subject interview to the Special Background
Investigation (SBI) in the case of Level V.
Subject interviews, it should be pointed out, have been found to be
particularly effective by the State Department and the intelligence
agencies as well as the Defense Department.
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Essential Requirements I:
Some Areas Where "Quick Fixes " Are Possible
After this recitation of facts, it would be natural to ask if our Federal
Employee Security Program was not beyond repair, or at least beyond
repair in any reasonable time frame. Certain of the most basic repairs
are going to be very difficult and time-consuming because they will re-
quire legislation. There are, however, a number of "quick fixes," espe-
cially in the case of the suitability program, that can be made without
serious delay-a few months, a year, perhaps a bit longer-by adminis-
trative action only, without the enactment of new legislation.
Broadly perceived, the Federal Employee Security Program, as has
been pointed out, really consists of two parts. One part has to do essen-
tially with suitability; the other part has to do with loyalty. There is,
however, a strong overlapping between the two because those who are
untrustworthy or engage in "criminal, dishonest, infamous or notori-
ously disgraceful conduct," or drink excessively, or use drugs are clearly
more vulnerable targets for the many KGB recruiters who are active in
this country, or more liable to be careless with confidential information
or documents to which they have access. In fact, the majority of those
convicted of espionage since World War II did not become agents for
ideological reasons; they succumbed rather because of monetary or sex-
ual enticements or blackmail.
The other part of the personnel security program has to do with secu-
rity strictly perceived-that is, in the sense of screening out elements
whose associations with organizations found to be subversive rendered
them unsuitable for employment on national security grounds.
Which part of the personnel security program is more important
would be very difficult to state in quantitative terms; both parts are
important. While the mercenary agents are more numerous than ideo-
logical agents, the long-term mole who enters government as a junior
employee and over the years rises to a policy-making position of great
importance unquestionably constitutes a much greater danger in terms
of his capacity for damage to the national security. (Harry Dexter White,
who served as Assistant Secretary of the Treasury under Roosevelt, is a
prime example of the damage that can be done by a solidly entrenched
mole. Kim Philby in Britain is another.) While all quantification is dif-
ficult, it is probable that in time of peace, the suitability side of the per-
sonnel security program-properly conducted-is as important or even
more important. Today, this suitability program is in a shambles. How-
ever, if it ever came to war, we would almost certainly find that we face
far greater dangers because of our abandonment of a personnel security
program per se.
Reconstitution of the personnel security program proper is bound to
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take many years because there are a number of major legislative and at-
titudinal obstacles to overcome. But there is no reason why those in
charge of personnel security cannot make a number of "quick fixes,"
on a purely administrative basis, that would in reasonably short order
enhance the quality of our personnel suitability program and even of
the personnel security program.
Administrative directives not supported or required by law can very
easily be replaced by directives from the new administrators. Hand-
books prepared under previous administrations can be replaced by new
handbooks designed to enhance the quality of our personnel suitability
program. In the paragraphs that follow, some of the possible "quick
fixes" are discussed. [A notation at the end of each section indicates
whether it relates to the suitability program or the personnel security
program or to both programs.]
I. The lax 1975 suitability guidelines for adjudicators, currently in
use by OPM, should be completely rewritten.
2. The Office of Personnel Management can also do a good deal to
bring about an early improvement in the situation by promulgat-
ing new directives that have the effect of nullifying at least the
more questionable of the restrictive directives put out by the Civil
Service Commission and the OPM on the advice of counsel in re-
cent years. Obviously, these new directives would have to be in
compliance with Supreme Court decisions, but, where doubt exists,
the issue should be resolved on the side of improved personnel
security. No concession should be made to diminished personnel
security procedures unless these concessions are specifically or-
dered by the courts. [Personnel Security and Suitability]
3. The Office of Personnel Management and the Justice Depart-
ment must team up to represent the interests of the Federal Em-
ployee Security Program before the courts far more vigorously
and effectively than heretofore. There are admittedly some points
where privacy rights come into conflict with the right of the gov-
ernment to safeguard itself against the danger of infiltration by
elements ideologically committed to its destruction or in the
service of hostile intelligence. The problem is to strike a balance
between these two "rights." If privacy rights are zealously repre-
sented in a whole series of court cases related to the Federal Em-
ployee Security Program, and if there is no comparably forceful
presentation of the security requirements and rights of the
United States government, inevitably the judges are going to
come down on the side of absolute privacy. [Personnel Security
and Suitability)
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4. The serious problem inherent in the waiver of pre-employment
Background Investigations for critical-sensitive positions will al-
most certainly prove to be completely untractable unless the
agencies charged with the responsibility for Background Investi-
gations are provided with adequate personnel to keep their
workload on a current basis. Government departments and
agencies have indicated that they would be willing to make pre-
employment investigations the rule rather than the exception if
the waiting time for an investigative report could be reduced to
30 days. But so long as the average report takes 90 days or more
to produce, personnel directors, anxious to fill important posi-
tions, are almost certain to compromise on the call for a full field
Background Investigation before an applicant can be entered into
a critical-sensitive government position. In the latter part of
1981, the OPM investigative staff was sharply reduced in
strength. The justification for this was that the government was
hiring far fewer employees on a monthly basis. Without the cut-
backs, OPM might have been able to liquidate its backlog and
put its investigative program on a 30-day basis. With the cut-
backs, the chances are that the backlog will remain as it is today.
[Personnel Security and Suitability]
5. The implementation of a more effective Federal Employee Secu-
rity Program not only requires more investigators than are cur-
rently servicing the various agencies but also calls for more intensive
training of investigators and adjudicators. The Project 10 Report
of February 1975 placed very heavy emphasis on the matter of
training. In the case of investigators, it called for a minimum of
two weeks of formal classroom instruction and on-the-job train-
ing encompassing at least the first year of duty. This was to in-
clude "an initial period during which the trainee accompanies
an experienced investigator to learn by example; a succeeding
period during which the trainee is accompanied by an experi-
enced investigator who observes his work and coaches him on
proper technique and approach; a period of close review of com-
plete work, tapering off as the trainee gains experience; frequent
supervisory consultations on the trainee's progress"; participa-
tion with other trainees in periodic conferences; and repeated re-
fresher training courses.
The proposed investigator training program outlined by the
Project 10 Report was almost encyclopedic in its coverage. It in-
cluded general indoctrination on the agency investigative mis-
sion and the government-wide investigations program; full field
Background Investigations; information sources, witness selec-
tion, and interviewing techniques; treatment of loyalty-security
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issues; subject interviews; prohibited areas of inquiry or prac-
tice; constitutional rights, civil rights, and privacy considera-
tions; suitability and misconduct investigations; indoctrination
in adjudication principles; work planning, office procedures,
and travel and mileage conservation; investigatory attitudes, ap-
pearance, and conduct; and practice sessions in interviewing
and reporting.
The Project 10 Report also discussed at length the question of
adjudicator qualifications and training. Adjudicators perform a
function of very great importance. If they are unqualified or in-
adequately trained, they may make personnel decisions which
are potentially damaging to the national security. Conversely, an
ill-prepared adjudicator may do injury to the rights of applicants
because he does not know how to evaluate the evidence provided
by the investigative staff. Most of the government agencies sur-
veyed reported that they did not require prior training of adjudi-
cators, that they received their training on the job. In addition,
the survey conducted revealed no discernible uniform pattern of
supervision for adjudicators. The Report recommended that
persons selected as adjudicators should not only possess in high
degree the attributes of integrity, maturity of judgment, objec-
tivity, and discretion, but that they should have "varied experi-
ence in investigations, security, suitability, or field, requiring
significant skills in the organization and evaluation of evidence;"
a familiarity with the legal framework within which adjudica-
tions are conducted; and a "general knowledge of subversive or-
ganizations, their ideologies, sources of information on these
organizations, and hostile intelligence techniques." The Report
also recommended that all adjudicators be required to attend an
intensive basic training course in adjudication and that an effort
be made to standardize adjudicator selection criteria, training,
and supervision.
Needless to say, investigator training and the selection, train-
ing, and supervision of adjudicators fall far behind the quality
recommended by Project 10. [Personnel Security and Suitability]
6. The Civil Service Commission witnesses who appeared before the
Senate Subcommittee on Criminal Law in 1978 made the point
that over the previous ten years not a single applicant had been
denied appointment to the federal service on the basis of reason-
able doubt as to loyalty, and that from 1956 to 1968 only twelve
applicants had been denied employment on this basis. This, they
said, was because of a reluctance over the entire history of the
Federal Employee Security Program to stigmatize individuals as
"loyalty risks" or "security risks." There were, however, over
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500 applicants who were denied employment and employees who
were dismissed on general suitability grounds, when the real rea-
son was the existence of serious doubt as to loyalty.
Many years ago some of the hardest heads in the Federal Em-
ployee Security Program had come to the conclusion that it was
self-defeating to deny employment on findings that an applicant
was a "loyalty risk" or "security risk." They proposed, instead,
that applicants should be rated either "suitable" or "unsuitable."
An applicant could be unsuitable for reasons related to insubor-
dination or inadequate performance or a criminal background
record; or he could be unsuitable because he was a chronic
drunk or a sexual pervert or a person afflicted with wanton care-
lessness-someone, in short, whose personal conduct under the
old rules would have stigmatized him as a "security risk"; or he
could be unsuitable because of membership in or a sympathetic
association with fascist, communist, or other subversive organi-
zations or of organizations committed to the use of force or vio-
lence to deny other citizens their constitutional rights. The various
reasons justifying rejection of the applicant would have to be
separately and specifically set forth. The applicant would have to
be informed of the charges or allegations and provided with an
opportunity to defend himself, and with a further opportunity to
appeal if he is turned down. But an adverse determination would
simply state that the applicant had been found "unsuitable" for
federal employment-not that he had been turned down as a
"loyalty risk" or "security risk." [Personnel Security]
7. Consideration should be given to using the polygraph for critical-
sensitive positions throughout the United States government.
[Personnel Security]
8. The investigation of employees of the U.N. and other interna-
tional organizations called for by EO 10422 should be upgraded
from an NAC to a full field Background Investigation. [Person-
nel Security]
9. DOD should, at the earliest possible date, abandon the Interview-
oriented Background Investigation (IBI) and return to the re-
quirement of a full field Background Investigation for all those
with access to Top Secret or higher. [Personnel Security]
10. Some formula must be found for recasting the nexus provision so
that agencies are not placed in the ridiculous position of having
to hire employees whom they have many valid reasons for not
hiring, but about whose flaws and weaknesses they cannot pro-
vide a definite nexus to ability to perform the job. [Suitability]
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11. Despite the difficulties created by the long-term task of reestab-
lishing a comprehensive domestic intelligence data base, the Ad-
ministration, basing itself on the Supreme Court's decision in
Law Students Research Council v. Wadmond et al., should instruct
the Department of Justice to prepare a revised questionnaire for
all applicants for sensitive and critical-sensitive positions in the
United States government. Among other things, this special
questionnaire should include a question or series of questions
bearing on the matter of loyalty. In the paragraphs that follow,
the author has made a first effort at the wording of such a ques-
tion.
Proposed Question to be Included in the Federal Government Ques-
tionnaire for Applicants for Employment in Sensitive and Critical-
Sensitive Positions
? Have you ever belonged to
? any organization committed to the violent overthrow of the govern-
ment of the United States or any subdivision thereof, or to the use
of violence for political purposes?
? any organization which conspires to deny civil rights to any group
of American citizens?
? any organization which operates under the control of or in collu-
sion with hostile foreign powers?
? any organization which serves as a front or support organization
for any of the above categories?
? any organization which has engaged in conspiratorial activities di-
rected against the security of the United States government or the
integrity of its operations?
*Note that mere membership in such organizations, by itself, does
not disqualify an applicant for employment. The sensitivity of the po-
sition applied for, and the quality of the membership, including
whether or not it was knowing membership and whether or not the
applicant shared the specific intent to carry out the unlawful pur-
poses of the organizations, must also be considered.
If the answer to the above question is yes, please write a brief sum-
mary of your membership, including such facts as the duration of
your membership in the organization in question, whether or not you
ever held office at any level or played a leadership role at any level,
whether or not you ever made speeches or wrote articles or state-
ments for publication, and the nature of any other activity in which
you engaged as a member. Also state in your summary whether you
were aware at the time of your membership of the unlawful purposes
of the organization, and whether you shared the specific intent to
carry out these purposes.
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Essential Requirements H:
Long-Term Problems Involved in Restoring the Employee
Security Program
The revitalization of the personnel security program, as distinct from
the suitability program, will require much more time and effort-
although here, too, there are some things that can be undertaken with-
out delay (e.g., rewriting the domestic intelligence guidelines imposed
on the FBI by Attorney General Levi).
While the GAO and OPM proposals have much merit, they do not
address two of the central problems. The first is the lack of specific or-
ganizational criteria to guide agency directors, adjudicators, and inves-
tigators; and the second is the destruction of the domestic intelligence
data base at the federal, state, and local levels, and the virtual cessation
of all domestic intelligence activities.
The criteria available for the guidance of adjudicators and agency
heads today-to the extent that any exist-are vague and ambiguous,
often contradictory, and leave so much open to interpretation that in-
vestigators, who are naturally fearful of committing a transgression
against rules they do not understand, frequently tend to avoid negative
reports out of the fear that they may get themselves into trouble. An in-
vestigator is always safe if he compiles no adverse information bearing
on loyalty about the applicants he is assigned to check out. But if he
pursues his investigation conscientiously and reports adverse informa-
tion as it is given to him-especially information of a national security
nature-he enters an area of undefined risks, which have now been en-
hanced by the Jane Doe decision.
It is not sufficient for the rules governing disqualification to speak in
general terms about membership in or a relationship with "any foreign
or domestic organization, association, movement, group or combina-
tion of persons which is totalitarian, fascist, communist or subversive,
or which has adopted, or shows, a policy of advocating the commission
of acts of force or violence to deny other persons their rights under the
Constitution of the United States, or which seeks to alter the form of
government of the United States by unconstitutional means." (This is
the language which has been used since the Truman Executive Order
9835 of March 21, 1947. It is indicative of the lack of sophistication of
those who wrote executive orders and legislation at the time. The lan-
guage quoted suggests that the order was directed against five different
types of organizations. Actually, the Communist Party would have
qualified under every criterion but "fascist" in this five-part enumera-
tion.) Adjudicators and agency directors cannot be expected to accept
the responsibility for interpreting such general language in a manner
which covers the hundreds of organizational affiliations that may come
to light as a result of applicant investigations. They have to be provided
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-presumably by the Department of Justice-with specific and authori-
tative and constantly updated criteria, setting forth the essential facts
about those organizations in which membership would automatically
raise questions about the applicant's loyalty and reliability.
Partly because of the post-Watergate hysteria on the issue of domes-
tic intelligence programs, partly because of the traditional hostility of
the media to law enforcement activities in the field of domestic security,
any talk about reinstituting some kind of domestic intelligence pro-
gram is bound to encounter serious obstacles. Whoever is brave enough
to take the initiative will not find it easy sledding. There will be brick-
bats and threats of legal challenges and denunciatory editorials, charg-
ing "McCarthyism." But we have to come back to the basic fact that,
without concrete organizational criteria, presumably provided by the
Department of Justice, it will be impossible to get any meaningful per-
sonnel security program back in operation; and to the correlated fact
that, without a domestic intelligence program, it will be impossible to
reconstitute the data base essential for an effective personnel program.
If it were simply a matter of having a clear conception of what the
Communist Party and the KKK were all about, the situation would be
relatively simple, because every personnel security officer knows about
the CPUSA and the KKK. But there are many more organizations,
some of them on the right, the great majority of them on the left, that
should be the object of continuous monitoring operations in the interest
of the national security. Thanks to the deceptively bland names they
sometimes bear, there is much public confusion about these organiza-
tions. The Socialist Workers Party and the National Lawyers Guild, to
take two prime examples, have names sounding innocent enough, and
the press almost invariably writes about them without indicating their
true political nature. The SWP, for instance, is almost invariably refer-
red to by the press as a "socialist organization," whereas it is in fact a
Marxist-Leninist organization. The NLG, similarly, is generally re-
ferred to as a "civil rights organization," whereas in reality it operates
as a legal front for the Communist Party and other revolutionary
groups. The Chinese Communists, Castro, and more recently the San-
dinistas in Nicaragua and the guerrillas in El Salvador have all been
portrayed as benign agrarian reformers by important segments of the
media, when they were making their bids for power. Not surprisingly,
there exists today a whole host of revolutionary organizations, some of
them fronts for the Soviet Union or the Communist Party, some of
them Trotskyists, some of them controlled fronts of the Castro govern-
ment, some of them Maoists, some of them New Left revolutionaries
(these are in most cases sympathetic to Castro, sometimes sympathetic
to North Korea, occasionally sympathetic to China). The total number
of the organizations covered by these various spectrums may very well
exceed 100.
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Among the frankly revolutionary organizations-pro-Moscow, pro-
Chinese, Trotskyist, or New Left-we would have to include, in addi-
tion to the Communist Party (CPUSA), the Communist Labor Party,
the Marxist-Leninist party of the USA, the Revolutionary Socialist
League, the Revolutionary Communist Party, the Communist Party
Marxist-Leninist, the Socialist Workers Party (Trotskyists), the Sparta-
cist League (a breakoff from the SWP), the Workers League, the
Workers World Party, the Young Workers Liberation League (the
youth organization of the SWP). None of these organizations, with the
exception of the CPUSA and its youth organization, is directly con-
trolled by Moscow. Most of them (but not the Maoists as of this mo-
ment) are committed to the disruption of our defense in the event of
war with Russia. All of them have contact in varying degrees with
Cuba, and some of them are in liaison with the Chinese Communists.
Cuba, in addition, commands a formidable array of its own front op-
erations. There is the so-called Nicaragua Network, committed to the
support of the Sandinista regime in Managua. There is the National
Network in Solidarity with the People of Guatemala, committed to the
support of the Castroite guerrillas in that country. There is the U.S.
Committee in Solidarity with the People of El Salvador, which plays the
same role with regard to that country. There is the Puerto Rican Social-
ist Party, a frankly Castroite organization, operating in mainland USA
as well as Puerto Rico, which maintains a permanent representation in
Havana. There is the Armed Forces of National Liberation (FALN), a
terrorist organization whose actions are enthusiastically supported not
only by the Puerto Rican Socialist Party, but also by front organizations
such as the Puerto Rican Solidarity Committee, and allied organiza-
tions such as the Puerto Rican Nationalist Party. It was the last-named
organization that was responsible for the attempted assassination of
President Truman in 1951. There is also a host of communist front or-
ganizations, such as the National Lawyers Guild, the U.S. Peace Coun-
cil, and the National Emergency Civil Liberties Committee, etc.
Not all the organizations that should be designated and monitored
are Marxist-Leninist or communist fronts. Other organizations should
be monitored because they pose a threat to domestic and national secu-
rity. These would include:
? Organizations which engage in or threaten criminal actions di-
rected against the civil liberties of any of our citizens.
? Organizations which conspire against the U.S. government in a
manner affecting the national security and the integrity of govern-
ment operations.
? Terrorist organizations which engage in bombings, hijackings,
and other violent actions, or engage in threats of violence, for the
traditional terrorist purposes of influencing policy or intimidating
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their opponents, e.g., the Weather Underground, the FALN, and
the Palestine Liberation Organization.
? Organizations which law enforcement authorities and the Depart-
ment of Justice determine pose a danger to the tranquility of our
communities and/or to the security of the nation, e.g., the Black
Panthers, the American Nazi Party, the Young Lords.
The proposal that the FBI engage in surveillance against terrorist or-
ganizations should encounter no opposition. However, the proposal
that it be instructed to reinstitute surveillance of the other categories of
organizations listed above will unquestionably bring protest from civil
libertarians in the center as well as from the organized left wing which
will point hysterically to the abuses of the past. True, there were some
abuses in the past, though they were very rare. (In the case of COIN-
TELPRO, for example, only a tiny percentage of the 2,370 COINTEL-
PRO activities approved and acted on by the FBI and an infinitesimal
percentage of all the 10,500,000 investigations conducted during the
same period of time involved demonstrable improprieties.) With the ex-
istence of effective oversight and with a chastening knowledge of the
damage that can be done by a single impropriety, domestic intelligence
activities in the future will be able to avoid some of the pitfalls that
helped bring about the current paralysis of domestic intelligence opera-
tions at all levels.
In the past, unquestionably, there have been some adjudicators-not
very many-who could not distinguish politically between membership
in the Communist Party and membership in the Norman Thomas so-
cialist movement, or who failed to draw a line between the identifiable
Marxist-Leninist elements who played a decisive role in the leadership
of the anti-Vietnam war movement and the very large numbers of peo-
ple, by no means radical, who provided the masses for the series of anti-
war demonstrations. With a more careful selection of personnel, better
training, more sophisticated direction, and clearer guidelines, there is
also every reason for believing that any future domestic intelligence op-
eration will properly confine its surveillance activities to the hard-core
extremists and will avoid extending them to embrace the innocents who
get caught up in these activities.
Reinvolving the FBI in domestic intelligence operations would pave
the way to the reestablishment of a list of organizations, membership in
which would raise serious questions of suitability for government em-
ployment. But the reestablishment of such a list is something that will
have to be done with great care. A lot can be learned from the experi-
ence with the so-called Attorney General's List. This list, which became
a favorite target of the left-liberal establishment in later years, was set
up by President Truman in March of 1947 under Executive Order 9835.
As noted, it was to embrace totalitarian, fascist, communist, or subver-
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sive organizations, organizations committed to the use of unconstitu-
tional means to effect political change, and organizations which seek to
deny other persons their constitutional rights. In practice, most of the
groups listed were communist action organizations, communist front
organizations, and organizations that had been heavily infiltrated by
the communists. At its apogee, the list contained the names of over 200
such organizations. It was used as a guide by the Federal Employee Se-
curity Program, and applicants for employment were given copies of
the list and asked whether they belonged to any of the named organiza-
tions.
The Attorney General's List, although it performed useful service for
a number of years, suffered from several weaknesses. One of its weak-
nesses was that the Attorney General had to take entire responsibility
for the designation of organizations-which led to the accusation that
he was serving as policeman, judge, and jury. It would have been much
better if the responsibility for designation had been given to a board of
eminent citizens. A second weakness was that there was no provision
for constant reviewing and updating of the list. A third weakness was
that, on the Marxist-Leninist side, the list was confined to organiza-
tions under the control or influence of the Communist Party USA; ap-
parently no one foresaw the explosive proliferation of independent
Marxist-Leninist and violence-oriented organizations not directly con-
trolled by the CPUSA.
In the 60s and early 70s, the Attorney General's List, which had be-
come increasingly dated, fell into progressive disuse. After seeking un-
successfully to obtain congressional funding for an expanded operation
of the Subversive Activities Control Board, President Nixon in June
1974 promulgated EO 11785, which added to EO 10450 the amend-
ment that "the list of organizations previously designated is hereby
abolished and shall not be used for any purpose."
How does one go about establishing a list of organizations, member-
ship in which would raise serious questions of suitability for govern-
ment employment?
It has been suggested that, if a list of organizations is ever reestab-
lished for the guidance of law enforcement and personnel security offi-
cials, it should not be made public because this might open the way to
challenges by all or many of the organizations listed. It is highly ques-
tionable that Congress would sustain such a procedure, because a se-
cret list would be eagerly seized upon by all those who are opposed to
any kind of federal employee security program.
If there is a list, it should, as in the past, be made public. It might
even be advantageous to provide in each case a public summary of the
reasons for the designation. Obviously, there will be situations where,
in the interest of security, some of the reasons for the designation have
to be withheld. But such instances are a minority. In the majority of the
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cases the designation can be justified on the basis of the public record
-publications, statements made by leaders and activists, activities,
evidence of control or influence by a hostile foreign state, and the rec-
ord of involvement by members in criminal activities.
Francis W. Niland, in the study already quoted,* reports on an inter-
view he had with Robert Keuch, Deputy Assistant Attorney General for
the Justice Department's Criminal Division, which focused on the prob-
lem of guidelines. Keuch told him that in 1969-1971 the Internal Secu-
rity Division of the Department of Justice had sought to amend EO
10450 in a manner that would have transferred the "designation" func-
tion from the Attorney General to the Subversive Activities Control
Board. The proposal provided, said Mr. Niland, "that the SACB, after
full notice and hearing, would make recommendations to the Attorney
General concerning those organizations that should be listed pursuant
to the provisions of the executive order." The SACB would hold such
hearings and make such findings only upon a petition by the Attorney
General.
Mr. Keuch expressed the opinion that an appropriate manner in
which to handle the problem of "designation" would be to set up a sep-
arate Board under the Domestic Council which would function in much
the same manner as the SACB did under EO 10450 before it was termi-
nated. His proposal also provided for "delisting" hearings to be held in
the case of organizations which had evolved away from those character-
istics that led to their original "designation." Keuch apparently be-
lieved that this proposal still had merit at the time of the interview.
The Keuch concept in several respects is superior to the Attorney
General's List as a vehicle for establishing specific loyalty-security crite-
ria. Its major weakness is that the time involved in giving every organi-
zation an administrative hearing before being "designated" would
mean that it would take many, many years for the board to conduct
hearings on the hundred or more organizations and front organizations
that fall in the extremist spectrums. In the interest of making the pro-
posal operational in a reasonable period of time, it would be essential to
provide for provisional designations, subject to a later hearing and re-
view whenever the designation was challenged by the organization in
question. (It is noteworthy in this connection that, of the 200 organiza-
tions listed in the Attorney General's List, only a handful challenged
their designation.) Each designation would be supported by a summary
of the information which led the board to make the designation.
Let us examine a few possible summaries.
In the case of the Puerto Rican Socialist Party (PSP), a summary
might state that the Party's positions on international matters have
*Francis W. Niland, The Present Dilemma of the Federal Employee Loyalty/Security
Program (Washington, D.C.: The National War College, May 1977).
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consistently and faithfully mirrored the positions of Fidel Castro; that
on every issue where there was a conflict between the Castro regime and
the United States, its publications have sided with the Cuban govern-
ment against the American government; that it has sympathetically
covered all acts of terrorism committed by the FALN and that at least
several members have been arrested as FALN bombers; that it main-
tains a permanent office in Havana; and that, based on these essential
facts, the PSP would have to be considered an organization in which
membership would automatically raise serious national security ques-
tions about suitability for sensitive government positions.
In the case of the Socialist Workers Party, a summary might state
that the SWP, although not formally affiliated with the Fourth Interna-
tional, is a part of it for all practical purposes. It provides most of the
money for its international operation, and one of its members sits on
the executive committee of the International-ostensibly in an individ-
ual capacity. The Fourth International is an organization which unites
the many Trotskyist communist movements scattered around the
world. It is a Marxist-Leninist group committed to forceful revolution
and establishment of a proletarian dictatorship after the revolution. It
supports the Soviet Union critically and Fidel Castro by and large un-
critically; although it is denounced by the Soviet communists, it has
had frequent contact with Cuba. Although it presents itself as a non-
terrorist organization and has not to this date itself engaged in terrorist
activities in the United States, it does not oppose the terrorist activities
conducted by its sister organizations of the Fourth International in
Latin America, Ireland, and other countries. It supports and has close
ties with the Palestine Liberation Organization. In certain cases, it has
even raised funds for Trotskyite-terrorist comrades who have been ar-
rested in other countries. Based on its total record, the SWP would
have to be put down as an organization in which membership automati-
cally raises serious national security questions about suitability for sen-
sitive government positions.
In the case of the KKK, the summary might say that it is an organi-
zation, or complex of organizations, which is basically racist and anti-
Semitic in orientation; that it has a long record of violent actions
directed against blacks in particular and against black churches and
synagogues; that its activities constitute a continuing danger to the
country, especially in the case of its armed forces. For these reasons,
the KKK is also designated as an organization in which membership
would raise serious questions of suitability for government employment.
In order to avoid indefinite delays and instill public confidence in the
integrity of the operation, the organizations initially to be targeted for
monitoring should be designated by the Attorney General, in consulta-
tion with the FBI and an independent advisory board of citizens drawn
from the academic community, the judicial community, and labor and
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business. This board might be called the Domestic Intelligence Advi-
sory Board (DIAB). Organizations designated as belonging to one of
the categories listed above would be free to appeal the designation to
the DIAB-with the stipulation that the review procedures be imple-
mented within a fixed time frame.
The government should not be required to provide absolute proof of
intent to engage in criminal activity in order to bar identified members
of extremist organizations from sensitive positions. If the evidence is
strong enough to raise serious doubt as to the advisability of employing
members or associates of such organizations in sensitive positions, that
should be enough. In cases where the evidence is strong, but still leaves
an element of doubt, the government should have the right to resolve
the doubt on the side of protecting the national security rather than the
right of the individual to employment in a sensitive position. Where the
nature of the position is such that the consequences of mistaken judg-
ment would do no damage, or easily reparable damage, to the national
security or national interest, consideration might be given to resolving
the doubts about an applicant's suitability in his or her favor.
This discussion points back to two conclusions:
1. Somewhere in government there must be criteria-there must be
an official list of organizations, membership in which would raise
serious questions of suitability for government employment.
2. As matters stand today, the FBI has withdrawn from internal se-
curity activities to the point where it is no longer monitoring and
clipping extremist publications. In order to enable the Attorney
General to provide guidance criteria and in order to provide
meaningful replies in response to National Agency Checks, the
FBI will have to be instructed to resume the active monitoring of
extremist organizations of the far right and far left. This will in-
volve the complete rewriting of the domestic intelligence guide-
lines promulgated by Attorney General Levi in 1976.
In order to avoid indefinite delays, the organizations initially to be
targeted should be designated by the Attorney General, in consultation
with the FBI, and a citizen's committee to be called the Domestic Intel-
ligence Advisory Board.
The restoration of a personnel security program will, however, re-
quire a series of long-term measures that go beyond the reactivation of
the FBI in the field of domestic intelligence and the establishment of
concrete criteria for investigators and adjudicators.
1. In order to provide itself with an in-house research and analysis
capability, the Office of Personnel Management will have to re-
constitute the Security Research and Analysis Section, which
served the Civil Service Commission well for many years, and re-
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activate and update its research files, which are now in storage.
[Personnel Security]
2. The Freedom of Information Act and Privacy Act will have to be
amended in a manner that exempts from disclosure the actual
files developed by the federal government in connection with the
investigation of applicants and appointees for federal positions.
The GAO report already quoted underscored the difficulty of ob1
taining information both from institutions and from members of
the public when they are advised, as they must be, that any infor-
mation they provide may be made available to the applicant or
appointee under the Privacy Act or the Freedom of Information
Act. Even federal judges informed the GAO that, if they pos-
sessed adverse information about an applicant, they would not
make this information available to government investigators be-
cause of the knowledge that it could be released in response to a
privacy petition. [Personnel Security and Suitability]
The argument will unquestionably be made that such an exemption
might open the way to denunciations of applicants and appointees on
various grounds by neighbors or acquaintances who are motivated to do
them harm. There are two answers to this criticism.
The first answer is that, without such an exemption, it will be impos-
sible to operate an effective personnel security program. The second
answer is that the nature of the investigative process by itself would be
enough to nullify the testimony of a single vindictive witness. If twenty
people who are interviewed in connection with an application for fed-
eral employment have only affirmative things to say about the appli-
cant, and if a solitary interviewee against this record were to come up
with some serious adverse information, it is virtually inconceivable that
this one piece of adverse testimony, in the absence of confirmation from
any other source, would serve to disqualify the applicant. Indeed, any
competent investigator, when confronted with such information, would
immediately ask whether there was proof available from other sources
to confirm the allegations.
The argument will also be made that, unless applicants for govern-
ment employment are given access to the derogatory information in
their files that might serve to disqualify them, due process will be im-
possible. This matter has already been discussed in the section on the
Jane Doe decision. The difficulty lies in giving them access to their files
with the totally inadequate precaution of blacking out the names of wit-
nesses. Clearly, every applicant should be entitled to know the general
nature of any disqualifying derogatory testimony so that he will be in a
position to respond to it. The question is whether administrative due
process cannot be observed by providing applicants, before a decision
on nonselection is made, with a summary of the derogatory information
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in his file and inviting his response-which is the way things were han-
dled in the days before the Privacy Act. In addition to this, a nonse-
lected applicant already has the right to appeal an adverse decision to
an autonomous board of arbiters, the Merit Systems Protection Board.
[Personnel Security and Suitability]
3. The GAO report of 1978 discussed the possibility of legislation
that would compel the cooperation of state and local authorities
with the OPM, the DOD, and other government agencies in the
matter of personnel investigations. The GAO also suggested the
possibility of offering to compensate them on a per capita basis
for the cost of this cooperation. The enactment of such legislation
would unquestionably result in a marked enhancement in the co-
operation of state and local officials. [Personnel Security and
Suitability]
4. The Federal Tort Claims Act should be amended to provide relief
from personal liability to investigators, adjudicators, and admin-
istrators if they have acted in good faith. Such legislation is now
pending in both the House and Senate. [Personnel Security and
Suitability]
5. There is a need for a blue ribbon panel similar to the Loyd Wright
Commission set up in 1955. It ordinarily takes a very long time for
such a commission to conduct an in-depth inquiry and draft a re-
port. Because of the urgency of the situation, perhaps it would not
be inappropriate to suggest that the commission be instructed to
submit its report six months after it begins its deliberations.
In anticipation of the establishment of such a blue ribbon
panel, the newly established Senate Subcommittee on Security
and Terrorism might consider the advisability of taking testimony
from those who have knowledge of the situation for the purpose of
calling the problem to the attention of Congress and the public.
[Personnel Security and Suitability]
In discussing the erosion of the Federal Employee Security Program
with the author, the recent director of the employee security office in a
major federal agency expressed the conviction that the program had
been going downhill for the past twenty years or more because no presi-
dent since Eisenhower and Truman had manifested a strong personal
interest in the situation. If the negative or indifferent attitude of so many
government bureaucrats toward personnel security is ever to be trans-
formed into a positive attitude, President Reagan must speak out on
the issue and promulgate rules facilitating the restoration of the program.
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These are some of the many things that will have to be done over the
period of the coming years if the U.S. is to restore a meaningful Federal
Employee Security Program. The problems are unquestionably enor-
mous-but they must be addressed because the penalty for failing to do
so jeopardizes the security of the nation.
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Appendix I
Department of Justice Definition of Sensitive Positions
(taken from DOJ 2610.2)
b. Sensitive Positions within DOJ will be those positions which:
(1) Involve legal, fiduciary, public contact, or other duties de-
manding the highest degree of trust, including all attorneys,
law clerks and supergrade positions;
(2) Require access, or afford ready opportunity to gain access,
to classified national security information and material de-
scribed in Executive Order (E.O.) 11652 as Top Secret, Se-
cret, and Confidential, which includes classified information
revealing intelligence sources, methods, and analytical pro-
cedures;
(3) Require access, or afford ready opportunity to gain access,
to any classified information which is controlled by special
access procedures established by the head of a department
or agency (e.g. access to Sensitive Compartmented Informa-
tion granted by the U.S. Intelligence Community pursuant
to the provisions of Director of Central Intelligence Directive
1/14; access to Restricted Data so classified by the Depart-
ment of Energy (formerly AEC and ERDA "Q" clearance),
and/or access to NATO, CENTO information, etc.);
(4) Entail final authority for recommending or approving the
collection, grant, exchange, loan, payment or other use of
property or funds of high individual or aggregate value, such
that it impacts on the national welfare;
(5) Involve duties directly concerned with the enforcement of
laws, or which involve the protection of individuals or prop-
erty;
(6) Entail involvement in the design, operation or maintenance
of Federal computer systems, or access to data contained in
manual or automated files and records of Federal computer
systems, when such data relates to the national interest, per-
sonal, investigative, proprietary or economically valuable in-
formation, or when the duties or data relate to distribution
of funds, requisition of supplies, or similar functions involv-
ing significant monetary value;
(7) Entail responsibility for making selections and appointments
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of persons performing any of the duties listed in (1) through
(6) above, investigative duties, the issuance of personnel se-
curity clearances, or the making of personnel suitability and
security determinations;
(8) Involve responsibility for security education or orientation of
DOJ personnel;
(9) Are temporary positions in direct support of sensitive activi-
ties or functions described above;
(10) Are so designated by the Attorney General or his designees.
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Appendix II
Cost of Personnel Investigations, By Agency
(Taken from GAO report "Costs of Federal Personnel Security
Investigations Could and Should Be Cut, "August 31, 1979)
Number of
investigations
Cost per
investigations
OPM:
Full-field investigations
23,760
$ 836.00
Limited field investigations
2,477
458.00
NACI
270,148
8.81
NAC
59,761
7.25
Total
356,146
DIS:
Special background
48,572
394.00
Background
57,723
208.00
Special background-update investigation
12,747
108.00
Background-update investigation
1,300
178.00
Expanded NAC
21,826
60.00
Special investigative inquiries
1,934
-
Limited inquiries
2,357
-
NAC
364,343
3.57
Entrance NAC
391,437 )
Total
902,239
FBI:
Administrative Services Section:
Special agent
1,057
5,452.006
FBI support
3,000`
-
Maintenance, contractors, vendors with
access to Hoover Building
Civil Rights and Special Inquiries Section:
Nonreimbursable full-field investigation
2,173
-
Reimbursable full-field investigations
1,579
979.00
National FBI Academy:
Limited full-field investigation of candidates
Total
Department of Treasury:
IRS:
Security (full-field investigation)
39
$1,058.00
Character
4,312
1,095.00
Limited characters
6,881
194.00
Security-clearance
46
Security-5-year update investigation
4
276.00'
Preappointment
217
NACI
380
Police check
197
Enrollee applicant
1,374
34.00
Total
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Cost per
Number of investigation
investigations (note a)
Customs Services:t
Full-field investigation 1,796 700.00
Bureau of Alcohol, Tobacco and Firearms:
Full-field investigation 432 242.13
Update investigation 375 -
Total 807
Bureau of Engraving and Printing:
Full-field investigation 112 250.00
Update investigation 11 -
Total 123
Secret Service:
Full-field investigation 600 750.00
Update investigation 1,200 225.00
Total 1,800
Department of State:
Full-field investigation 2,630 613.00
Update investigation 245 -
Total 2,875
U.S. Postal Service:
Full-field investigation 1,516
Update investigation 893
Total 2,409
Coast Guard:h
Background investigation 147 -
Department of Commerce:
Full-field investigation 2 -
National Aeronautics and Space Administration:
Full-field investigation 1 -
Agency for International Development:
Full-field investigation 356 650.00
NACI and NAC 654 -
Total 1,010
ACTION:
Full-field investigation 50 500.00
Update investigation 5 -
Total 55
investigation.
for IRS.
'Limited character investigation for nonsensitive (specified) positions is scheduled to
be eliminated. Positions will be reclassified as nonsensitive and OPM will conduct a NACI
sons with limited access receive NACIs.
dPersons with regular access to the FBI building receive full-field investigations. Per-
`Estimated.
positions.
hMilitary personnel only.
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Appendix III
Results of Interagency Study on GAO Recommendations (1981)
STATISTICAL SUMMARY
(not including DoD, State, or CIA)'
TOTAL POSITIONS [Federal Civilian Service]
Number of Old Number of New % at Each
Positions Positions of New
(Including ADP) (Including ADP) Levels
Nonsensitive
1,388,891
I
1,098,166
66%
Noncritical-Sensitive
190,998
II
399,046
24%
III
97,078
6%
Critical-Sensitive Normal
55,539
IV
44,864
3%
5 Year BI
V
19,528
1 %u
Critical-Sensitive More
Than 5 Year BI
23,254
ADP III
ADP II
ADP I
% at each
Number of Old Number of New of New
Positions Positions Levels
39,681
I
22,818
21%
62,988
II
52,572
48%
7,040
111
29,432
27%
IV
4,651
4%
V
236
-
NON-ADP POSITIONS [Federal Civilian Service]
Number of Old Number New % at each
Positions Positions of New
(Excluding ADP) (Excluding ADP) Levels
Nonsensitive
1,349,210
I
1,075,348
69%
Noncritical-Sensitive
128,010
II
346,474
22%
III
67,646
4%
Critical-Sensitive Normal
48,499
IV
40,213
3%
5 Year BI
V
19,292
2%
Critical-Sensitive More
Than 5 Year BI
23,254
'DoD estimates included civilian positions as well as military and contractor activities. A
breakdown of civilian positions from the DoD total was not available. State and CIA did
not provide estimates.
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Selected Heritage Foundation
Policy Studies
Agenda '83: A Mandate for Leadership Report
edited by Richard N. Holwill (1983, $12.95, hardcover; $6.95, paperback)
The Annual Guide to Public Policy Experts 1983
edited by Robert Huberty and Catherine Ludwig (1983, $4.00)
Annual Insider Index to Public Policy Studies
edited by Mary Sutphin (1983, $4.00)
The First Year: A Mandate for Leadership Report
edited by Richard N. Holwill (1982, $10.95, hardcover; $6.95, paperback)
Constraining Inflationary Government
by Antonio Martino (1982, $4.00)
Essays in Supply Side Economics
edited by David G. Raboy (1982, $10.95, hardcover; $5.95, paperback)
Back to Basics
by Burton Yale Pines (1982, $13.50, hardcover)
The Inter-American Foundation
by Cleto DiGiovanni, Jr. (1981, $4.00)
U. S. -Japan Mutual Security: The Next 20 Years
edited by Edwin J. Feulner, Jr. and Hideaki Kase (1981, $5.00)
Mandate for Leadership
edited by Charles L. Heatherly (1981, $21.95, hardcover; $12.95, paperback)
Agenda for Progress: Examining Federal Spending
edited by Eugene J. McAllister (1981, $11.95, hardcover; $6.95, paperback)
U.N. Studies
UNCTAD: An Organization Betraying Its Mission
by Stanley J. Michalak (1983, $3.00)
The International Labor Organization: Mirroring the U.N. 's Problems
by Walter Galenson (1982, $3.00)
Critical Issues
Social Security Reform: The Family Plan
by Peter J. Ferrara (1982, $3.00)
Safety Nets and the Truly Needy: Rethinking the Social Welfare System
by Charles A. Murray (1982, $3.00)
Strategic Minerals: The Economic Impact of Supply Disruptions
by James T. Bennett and Walter E. Williams (1981, $3.00)
Corrigible Capitalism, Incorrigible Socialism
by Arthur Seldon (1981, $3.00)
East Germany: Marxist Mission in Africa
by John M. Starrels (1981, $3.00)
Reforming the Military
edited by Jeffrey G. Barlow (1981, $3.00)
The Economics of Education Tax Credits
by E. G. West (1981, $3.00)
The Failure of Socialism: Learning from the Swedes and English
by Arthur Shenfield (1980, $2.00)
The Soviet Strategy of Terror
by Samuel T. Francis (1981, $2.00)
The Family, Feminism, and the Therapeutic State
by Onalee McGraw (1980, $2.00)
For a complete list of publications-or to order any of the above-write:
Dept. G, The Heritage Foundation, 513 C Street, N.E., Washington, D.C. 20002
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 Approved For Release 2008/01/15: CIA-RDP85M00364R002204190005-2
CE
Are there persons working for the federal government who do not serve the best interests
of the United States? Are there incompetents? Subversives? The federal government can-
not answer these questions. It does not know because it no longer has the relevant data.
At one time, the U.S. could insure that its employees did not endanger national security.
But appeals to "fairness," budget-cutting, burdens imposed by the Freedom of Informa-
tion Act, Privacy Act and many court decisions, plus the domestic intelligence guidelines
of former Attorney General Edward Levi, have transformed a viable loyalty-security pro-
gram into a shadow of its former self. The current program, in fact, barely passes muster
as a suitability check.
How federal personnel security policy got into its present mess and what can be done to
remedy it are the central themes of this study by David Martin. A twenty-year veteran of
the Senate Subcommittee on Internal Security, Martin details the sorry state of personnel
policy and its frightening implications:
1. Priceless files, sources of checking applicants for critical and critical-sensitive posi-
tions, have been destroyed at national, state, and local levels.
2. The FBI has withdrawn from the domestic security business.
3. The vicious "nexus" principle has made it nearly impossible to run even an adequate
suitability check. Such flaws as heavy drinking cannot disqualify a candidate unless
a definite nexus between the weakness and the applicant's possible performance can
be proved.
4. Staffs within agencies for investigations have been so severely cut that waiving even
the most cursory security checks has become the order of the day.
Despite these developments over the past decade, most Americans blithely trust that their
government protects itself-and them-adequately against disloyal, not to say treasonous
infiltration.
David Martin performs a valuable service in exposing the facts of U.S. security weak-
ness and suggesting specific measures to remedy the situation. Among them: completely
revising the current lax guidelines for adjudicators and investigators; and reactivating the
FBI's domestic intelligence division and the Security Research and Analysis Section at the
Office of Personnel Management.
The problems, Martin concludes, unquestionably are enormous. But they must be ad-
dressed because failing to do so jeopardizes the security of the nation.
David Martin is a former senior analyst with the Senate Subcommittee on internal Secu-
rity. Since retiring from the Senate, he has served as a consultant for the Standing Com-
mittee on Law and National Security of the American Bar Association.
i
Wf
GHefitage `Fonndatiort
513 C Street, N.E. ? Washington, D.C. 20002
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