PROPOSED EXECUTIVE ORDER TO GOVERN ACCESS TO CLASSIFIED INFORMATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91B00390R000100110011-5
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 18
• Document Creation Date: December 27, 2016
• Document Release Date: February 4, 2013
• Sequence Number: 11
• Publication Date: May 6, 1988
• Content Type: MEMO

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STAT
STAT
STAT
STAT
ROUTING AND RECORD SHEET
SUBJECT: (optional)
Proposed Executive Order to Govern Access to
Classified Information
FROM:
EXTENSION
kot----
--OS 88-204-7
Acting Director of Security
DATE L------
6 MAY ?... -
TO: (Officer designation, room number, and
building)
DATE
OFFICER'S
COMMENTS (Number each comment to show from whom
to whom. Draw a line across column after each comment.)
RECEIVED
FORWARDED
INITIALS
1 .
General Counsel
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STAT
ADMINISTRATIVE - INTERNAL USE ONLY
General Counsel
ILe.(222_,
6 MAY
MEMORANDUM FOR: Deputy Director of Central Intelligence
VIA:
FROM:
SUBJECT:
REFERENCE:
Executive Director
Deputy Director for Administration
General Counsel
RuLing ulLeLuoL of Security
Proposed Executive Order to Govern Access to
Classified Information
Memo for DDCI fm D/OS dtd 24 March 1988, Subj:
Proposed Executive Order to Govern Access to
Classified Information
1. Action Requested: Attached for your signature is a
letter to Lieutenant General Colin L. Powell, Assistant to the
President for National Security Affairs, forwarding appropriate
language exempting the Agency from the "oversight" and
administrative appeal procedures of the proposed Executive
Order on personnel security. Also included is language which
would substitute "sufficient doubt" as the Government-wide
security standard in place of "reasonable doubt." If the
objections we have to the proposed Executive Order cannot be
resolved to our satisfaction through the NSC process, we
recommend that our concerns be brought to the attention of the
President.
2. Background: In deference to our concerns, the
Department of Defense has officially concurred with the
Agency's proposed amendments to Sections 7 and 9 of the
proposed Executive Order which would protect the authorities of
the Director of Central Intelligence. In deference to DOD's
concerns, the Agency has agreed to support personnel security
oversight of DOD by the Information Security Oversight Office.
Additionally, DOD concurs with our objection to the use of
"reasonable doubt" as the standard for the denial and
revocation of security clearances and approvals, although it
has suggested language of its own as the preferred alternative
to be considered in the NSC process. While we are not entirely
comfortable with DOD's proposed alternate language,
nevertheless, we are willing to discuss, under NSC auspices,
1:3_7(78-7ii=i477-1
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STAT
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ADMINISTRATIVE - INTERNAL USE ONLY
whether a standard other than the "sufficient doubt" standard
we have proposed would be the best substitute for the
"reasonable doubt" standard. Attachment A reflects DOD
concurrence with our amendments to Sections 7 and 9 and
indicates DOD objection to the term "reasonable doubt." The
Office of Personnel Management has been briefed on our concerns
but has remained noncommittal.
In order to appropriately address in a national
security forum all concerns raised by the proposed Executive
Order, it is important that all significant issues relating to
the proposed Order be resolved by the NSC process before the
draft Order is circulated by the Office of Management griaBudget
for Government-wide review and comment. Both DOD and OPM share
this view.
3. Recommendation: That you sign the attached letter to
General Powell, which requests that a staff-level meeting of
the affected agencies be convened under NSC auspices to resolve
all outstanding issues, and which requests that a final
decision be made by the President, if necessary.
Attachments
cc: Director, Intelligence Community Staff
CONCUR:
uenerdl Lorsel
Deputy-Dite-ftbr ffbt Administration
Exerve Direcyn
2
//'y
Date 7
Da e
7.4( puo Date
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The Deputy Director of Central Intelligence
VVashington. D. C. 20505
STAT
20 May 1988
Lieutenant General Colin L. Powell
Assistant to the President
for National Security Affairs
Washing n -D.C. 20506
Dear G owell:
Pursuant to my letter of 4 April 1988, I am forwarding to
you language which would amend the draft Executive Order on
personnel security to accommodate the serious concerns I
expressed in that letter.
The Department of Defense has officially concurred with
our proposed amendments to Parts 7 and 9 of the draft Order,
which would protect the authorities of the Director of Central
Intelligence. Although DOD also concurs with our objection to
the use of "reasonable doubt" as the standard for the denial
and revocation of security clearances and approvals in Part 6
of the draft Order, DOD has suggested that language other than
that which we have proposed might better insulate security
decision making from judicial review. Therefore, DOD has
indicated that it would like for the "reasonable doubt" issue
to be addressed further in the NSC process-.
I believe that these matters, and all other serious points
of disagreement concerning the draft Order, should be resolved
through the NSC process before the draft Order is circulated by
the Office of Management and Budget for Government-wide
comment. Both DOD and the Office of Personnel Management share
my views in this regard. Accordingly, I request that a
staff-level meeting of the affected agencies be convened under
NSC auspices to resolve all outstanding issues related to the
draft Order. Should these issues not be resolved, I request
that they be presented to the President for a final decision.
Attachment
Sincerely,
Robert M. Gates
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DEPARTMENT OF DEFENSE
OFFICEOFGENERALCOUNSEL
WASHINGTON, D.C. 20301-1600
April 21, 1988
MEMORANDUM FOR ASSISTANT DEPUTY UNDER SECRETARY OF DEFENSE
(COUNTERINTELLIGENCE & SECURITY)
ATTN: Mr. Bill Fedor
SUBJECT: CIA Proposed Changes to Personnel Security Executive
Order
This responds to your request for our input on the CIA's
proposed revision to the above draft Executive Order, currently
pending action at the National Security Council.
This office has no objection to the proposed revisions to
Parts 7 and 9 of the Executive Order.
Although this office agrees, for the reasons stated by CIA,
that the term "reasonable doubt" should not be utilized in Part
6, we do not concur with their proposed substitution of the term
"sufficient doubt" therefor. Such term is vague and ambiguous
and would invite a reviewing court to interpret it at will (a
likely "interpretation" of the term "sufficient" is "reasonable").
Of greater concern, however, is that the phraseology employed
under either formulation, in my opinion, creates the impression
that the burden is on the agency to justify a clearance denial.
This office proposes the following revision to Part 6 in the
alternative. It accomplishes the same purpose sought by the CIA,
and is based upon language recently used by the Supreme Court in
Navy v. Egan (attached) to describe the "clearly consistent"
standard.
Section 2.1 Standards
(b) Except ... national security information. A
determination of eligibility for access to such information is a
wholly discretionary security determination, and [eligibility]
may be granted based on judgments by appropriately trained
security personnel only where the facts and circumstances
indicate such access is clearly consistent with the national
security interests of the United States. In all such
determinations, the protection of the national security of the
United States shall be the paramount determinant, and security
personnel should err, if they must, on the side of denials.
? ? ?
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Section 6.2 Adjudication of Initial Investigations
(c) At such time ... national security information.
Where?t4tere-4-s?reelKmisb4c doubt ncrM.e
individual under these standard3 When security personnel cannot
conclude, based on the available information in its entirety,
that granting the individual access to national security
information meets the standards described in this Order, such
access eligibility will be denied.
Note: The above change also should be made to Section 6.4.
Questions concerning this memorandum may be addressed to the
undersigned or to Dale A. Stalf at x53392/56710.
Michael A. Sterlacci
Assistant General Counsel
(Legal Counsel)
Attachments
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86-1562?OPINION
12 DEPARTMENT OF NAVY v. EGAN
ance was denied, and whether transfer to a nonsensitive
position was feasible. Nothing in the Act, however, directs ?
or empowers the Board to go further. Cf. Zimmerman v.
Department of the Army, 755 F. 2d 156 (CA Fed. 1985);
Buriani v. Department of the Air Force, 777 F. 2d 674, 617
(CA Fed. 1985); Bacon v. Dept. of Housing & Urban Devel-
opment, 757 F. 2d 265, 269-270 (CA Fed. 1985); Madsen v.
Veterans Admin., 754 F. 2d 343 (CA Fed. 1985).?
As noted above, security clearance normally will be
granted only if it is "clearly consistent with the interests of
the national security." The Board, however, reviews ad-
verse actions under a preponderance of the evidence stand-
ard. I 7701(c)(1)(3). These two standards seem inconsist-
ent. It is difficult to see how the Board would be able to
review security-clearance determinations under a preponder-
ance of the evidence standard without departing from the
"clearly consistent with the interests of the national security"
test. The cleals.;:conaistent standard AndleargtAiwo
seetwity4earelystdeterminationa should.egrAttheithalmito
4011the side of &stalk; Placing the burden on the Govern-
ment to support the denial by a preponderance of the evi-
dence would inevitably shift this emphasis and involve the
Trier to the Act's passage in 1978, most federal employees dismissed
for cause could pursue an appeal to the Civil Service Commission. The
parties here appear to agree that the old Commission never exercised ju-
risdiction over a security-clearance determination. We 618 to see any indi-
cation that Congress intended to grant the Board greater jurisdiction in
this respect than that possessed by the Civil Service Commission. The
Board was created to assume the adjudicatory functions of the old Commis-
sion and, with certain exceptions, those functions passed unchanged from
the Commission to the Board. When the Senate and House committees
listed the changes effected by the Act, they gave no indication that an
agency's security-clearance determination was now to be subject to review.
See S. Rep. No. 96-969, pp. 46 and 52 (1978); R. IL Rep. No. 96-1403.
pp. 21-22 (1978). Such changes as were made did not bear upon the issue.
If there be any contrary implication in the legislative history, a respond-
ent would suggest, it is much too frail for us to conclude that Congress in-
tended a major change of that kind.
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STAT
PO L IC Y
MEMORANDUM FOR
OFFICE OF THE UNDERSECRETARY OF DEFENSE
WASHINGTON, D. C. 20301-2000
2 2 APR 1988
OFFICE OF THE GENERAL COUNSEL,
CENTRAL INTELLIGENCE AGENCY
Subject: CIA Proposed Changes to the Personnel Security
Executive Order
I have reviewed, together with the DoD Office of General
Counsel, the paper which yo.0 provided to Bill Fedor in which
you propose three changes to the draft Executive Order. We
have no objection to the proposed revisions to Parts 7 and 9
of the Executive Order.
With respect to Part 6 we concur that the term "reasonable
doubt" should be removed. However, I agree with the rationale
set forth in the attached 21 April 1988 memorandum, signed
by Mr. Sterlacci, with respect to the inadvisability of
substituting "sufficient doubt" for reasonable doubt. More-
over, I agree with the proposed revisions to Section 2.1,
Standards, and Section 6.2, Adjudication of Initial Investiga-
tions, recommended by Mr. Sterlacci in his 21 April 1988
memorandum.
Please advise if you wish to discuss further.
Attachment
As Stated
,
ohn F. Donnelly
Assistant Deputy Under Secretary of Defense
(Counterintelligence and Security)
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ADMINISTRATIVE - INTERNAL USE ONLY
STAT
24 MAR WI
MEMORANDUM FOR: Deputy Director of Central Intelligence
VIA:
FROM:
SUBJECT:
REFERENCE:
Executive Director
Deputy Director for Administration
General Counsel
Director ot Security
Proposed Executive Order to Govern Access to
Classified Information
Memo for ADCI fm D/OS dtd 27 Feb 87, Subj:
Draft Executive Order to Govern Access to
Classified Information
1. Action Requested: Certain provisions of the Executive
Order proposed by the Department of Justice to govern access to
classified information remain inconsistent with important CIA
and Intelligence Community prerogatives and, if approved, would
seriously erode DCI statutory authority. You are requested to
address this concern with Lieutenant General Colin L. Powell,
Assistant to the President for National Security Affairs, and
to notify him that we are drafting specific language to amend
the Order. Attached for your signature is a letter to
General Powell summarizing our objections to the proposed Order
and requesting that the NSC convene a staff-level meeting of
the affected agencies upon receipt of our proposed language.
Meanwhile, an effort will be made to obtain the concurrence of
two of the major participants in the drafting process--the
Department of Defense and the Office of Personnel
Management--in specific language that would amend the Executive
Order and safeguard our equities. A second letter to
General Powell containing the appropriate exempting language
will then be sent forward for your signature.
2. Background: The Deputy Attorney General has forwarded
to the President, through the NSC, the current draft of a
proposed Executive Order on personnel security. In a covering
memorandum to the President, the Deputy Attorney General cites
OS 8-5522
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five issues which require resolution and recommends to the
President that these issues be resolved quickly to permit
adoption of the Order. Issues 1 and 4 concern proposed
oversight and appeals procedures. Each is severely
misrepresented and falls short of reflecting Agency concerns.
Issues 2, 3, and 5 address investigative standards,
reinvestigations, and the need for a current review of
Executive Order 10450. These issues are succinctly stated, and
the related recommendations are reasonable.
3. Tab A is a copy of my memorandum to you dated
26 February 1987 identifying the issues of concern at that
time. Tab B is a copy of your letter to the Attorney General
dated 18 March 1987 wherein you emphasize the impact this Order
would have on DCI statutory authorities. Tab C is the Attorney
General's reply of 25 March 1987. Tab D consists of a copy of
the Deputy Attorney General's 20 November 1987 letter to the
President and the current draft Executive Order.
4. Regretfully, the follow-up meetings you suggested
between representatives of the Department of Justice (DoJ), the
Office of General Counsel, and members of my own staff,
produced little in the way of substantive agreement. In
particular, the concerns we had with respect to oversight by
the Information Security Oversight Office (IS00) and the
procedures involved in processing security clearances continue
essentially unresolved. I remain convinced that the intrusive
aspects of these provisions warrant our continued vigorous
opposition.
5. To reiterate, Issues 1 and 4 cause grave concern.
Specifically, Issue 1 addresses oversight of government-wide
personnel security programs and would delegate extensive
oversight authority for personnel security matters to 'SOO.
As stated in your 19 March 1987 letter to the Attorney General,
"The sweeping oversight provisions..., which effectively permit
ISOO to direct aspects of our security programs and
second-guess security policy and other determinations made by
the DCI, conflict with the statutory responsibility of the DCI
to protect intelligence sources and methods." Oversight
autonomy for either the Central Intelligence Agency or other
appropriate intelligence agencies has not been expressly
provided for in the current draft. Also, a series of Agency
proposals to moderate 'SOO oversight in a manner consistent
with Agency interests proved futile. In short, we are back
where we started relative to oversight.
2
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6. Issue 4 would establish security clearance appeal
procedures for all on-board Agency personnel and extend the
right of appeal to contractor employees with access at the
collateral classified level. Not only would this provision
override existing DCI authority, it would clearly establish
procedures.that do not now exist and are not required by law.
With respect to the contractor world specifically, I would add,
Parenthetically, that appeal procedures do exist, to be sure,
but are confined to the SCI environment only under the
circumstances as mandated by DCID 1/14.
7. I am informed that representatives of the Office of
General Counsel have alerted NSC legal officials to our
concerns and that the Order is now on hold pending formal word
from the Agency. In view of earlier unproductive efforts
through DoJ to incorporate alternative language into the Order,
a different approach is needed. Specific language exempting
the Agency and other intelligence agencies, as appropriate,
from oversight and appeal procedures is, in my view, a prudent
next step in our efforts to gain relief from this unwarranted
intrusion on the discretionary authority of the DCI.
8. I believe it is essential that the Assistant to the
President for National Security Affairs clearly understands the
equities at stake and the need to resolve the substantial
disagreements which remain. Therefore, you are requested to
sign the attached letter to General Powell advising him that
specific language to amend the draft Order will be forthcoming
and requesting that the NSC Staff convene a meeting of the
affected agencies upon receipt of our proposed language. A
second letter to General Powell, transmitting the appropriate
exempting language, will soon be forwarded for your signature.
If you wish to be briefed further on this matter, please
contact me at your convenience.
Attachments
cc: Director, Intelligence Community Staff
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SUBJECT: Proposed Executive Order to Govern Access to
Classified Information
CONCUR:
STAT
General Corel
STAT
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? With so many people biting at our
ankles, it's a wonder we're able to
STAT get anything done. I support
proposed approach. This is ludicrous.
JT
4
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The Deputy Director of Central Intelligence
Washington D C 20505
Lieutenant General Colin L. Powell
Assistant to the President for
Natio 1 Security Affairs
Washin n D.C. 20506
Dear
owell:
14 APR 1988
I have reviewed the Department of Justice draft Executive Order on personnel
security, which would establish government-wide policy concerning access to
classified information. Further, I have reviewed the transmittal materials which
would accompany the draft Executive Order. Based upon my review, I have concluded
that certain provisions of the draft Order would erode the statutory
responsibilities of the Director of Central Intelligence (DOI) and are, therefore,
unacceptable. Moreover, I believe that the proposed transmittal materials do not
adequately discuss certain issues that have generated substantial disagreement.
Previously, on 18 March 1987, I informed the Attorney General of my concerns
and suggested that our representatives meet to attempt resolution of our
outstanding differences with respect to the draft Order. A meeting did take place
between our representatives at that time, but the final draft Order forwarded to
you does not accommodate my concerns.
The draft Order which delegates extensive "oversight" authoritj for personnel
security matters to the Information Security Oversight Office (IS00) to direct
aspects of our security program, and to second-guess security policy and other
determinations made by the DCI, would undercut the statutory responsibility of the
DCI to protect intelligence sources and methods. The Order must expressly provide
for oversight autonomy for the Central Intelligence Agency and, as appropriate,
other intelligence agencies.
The Order also imposes, as mandatory, a set of administrative appeal procedures
for the revocation of security clearances and approvals which must be followed
unless the DCI personally certifies otherwise in each case. There is nothing in
current law that requires this, and I consider such a requirement an unwarranted
intrusion on the statutory discretion of the DCI, which carries with it a serious
potential for protracted litigation with respect to the appropriateness of the
DCI's certification in each case. Moreover, the Order ties the denial and
revocation of clearances and approvals to the legal standard of "reasonable doubt,"
another invitation for the entire program to be drawn into unnecessary and
debilitating litigation.
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Lieutenant General Colin L. Powell
Considerable effort has gone into this endeavor, and the draft Order addresses
important issues in an area in which revision and clarification are long overdue.
It is imperative, therefore, that every effort be undertaken to reach a solution.
In this vein, we will provide you, under separate cover, language to amend the
draft Order. As I believe the National Security Council Staff may be in the best
position to facilitate an agreement, I urge you to convene a staff-level meeting
of the affected agencies upon receipt of this language. I am hopeful that a
resolution can be reached under NSC auspices which accommodates our concerns.
(14_:
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STAT Os/PP,
Distribution:
Orig - Adse
2 - DDA
1 - ER
1 - ER
1 - ExDir
1 - GC
1 - EVIC Staff
1 - DD/PS/OS
eePPS Chrono
- OS Registry
(17 Mar 88)
Robert M. Gates
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