H.R. 4681 THE FEDERAL POLYGRAPH LIMITATION AND ANTI-CENSORSHIP ACT OF 1984

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000300390009-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 20
• Document Creation Date: December 21, 2016
• Document Release Date: August 28, 2008
• Sequence Number: 9
• Publication Date: April 25, 1984
• Content Type: MEMO

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l~ C.t1~~f~t ct~af'S
OLL 84-1689/1
25 April 1984
MEMORANDUM FOR: C/SECOM
D/OS
Attn:
Attn:
C/ALD/OGC
Chief, Legislation Division
Office of Legislative Liaison
SUBJECT: H.R. 4681, the "Federal Polygraph
Limitation and Anti-Censorship Act of 1984"
1. Attached is a copy of the amendment to H.R. 4681
drafted by the staff of the House Permanent Select Committee on
Intelligence (HPSCI) which we discussed last month. This draft
amendment has now been provided to us by the Office of
Management and Budget (OMB) with a request that we submit our
views on the amendment by 4 May 1984.
2. As you may recall, during our meeting concerning the
attached draft HPSCI amendment, we agreed to a revised version
of this amendment which would satisfy many of our concerns with
the original Brooks bill. We are now being asked to respond to
OMB, however, in order to assist in the formulation of a
coordinated Executive Branch position on the amendment, rather
than to submit Agency-related comments directly to HPSCI for
inclusion in their draft amendment. Essentially, the issue is
whether we should attempt to fine-tune and improve the Brooks
bill through submitting comments to OMB which track our earlier
revision of the attached amendment, or whether we should
instead inform OMB that we are completely opposed to the Brooks
bill and any amendment thereto which significantly affects the
status quo with respect to prepublication review and polygraph
usage. I believe that we should make the latter response and
inform OMB that we are totally opposed to the Brooks bill and
all related initiatives.
3. I would appreciate receiving your comments on the
attached amendment and the above proposed response to OMB by
COB 1 May 1984, in order that we can prepare an adequate
response by the above 4 May date.
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DISTRIBUTION:
Original - Addressees
- OLL Chrono
LEG File: Polygraphs
1 - SWH Signer
1 - D/OLL
1 - DD/OLL
SWH:csh (25 April 1984)
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AMENDMENTS OFFERED BY
TO THE AMENDMENT IN THE NATURE OF A SUBSTITUTE
OFFERED BY MRS. SCHROEDER
Page 4, line 2, strike out ''An'' and insert in lieu
thereof "Except as provided in section 7365 of this title,
an''.
Page 6, line 9, strike out ''An'' and insert in lieu
thereof ''Except as provided in section 7365 of this title,
.
an
Page 8, line 17, strike out "Exemptions" and insert in
lieu thereof "Exceptions".
Page 8, line 18, insert ''(a)'' before ''Sections''.
Page 9, line 6, strike out the closing quotation marks
and the final period and add thereafter the following new
subsection:
1 "(b)(1) For purposes of this,subsection--
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1 "(A) the term 'covered agency' means the Department
2 of Defense, the Federal Bureau of Investigation, the
3 Federal Emergency Management Agency, and any other
4 agency (other than the Central Intelligence Agency or
5 the National Security Agency) which employs individuals
6 in positions the primary duties of which involve
7 cryptographic communications or technology;
8 I'M the term 'covered employee'--
9 11(i) as used with respect to the Department of
10 Defense, the Federal Bureau of Investigation, or the
11 Federal Emergency Management Agency, means an
12 individual employed by or detailed to the agency, an
13 individual applying for a position in the agency,
14 and an expert or consultant under contract with the
15 agency, who has regular and continuous access to
16 covered information as such an employee (or, in the
17 case of an individual applying for a position, would
18 have such access to covered information in such
19
20
21
22
23
24
25
position); and
''(ii) as used with respect to any other covered-
agency, means an individual employed by or detailed
to the agency, an individual applying for a position
in the agency, and an expert or consultant under
contract with the agency, who so has '(or would so
have) regular and continuous access to covered
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1 , information within the meaning of subparagraph
2 (C)(ii); and
3 ''(C) the term 'covered information' means
4 particularly sensitive classified information--
5 I'M subject to a special access program
6 established in accordance with the provisions of
7 section 4.2(a) of Executive Order 12356, as in
8 effect on the effective date of the Federal
9 Polygraph Limitation and Anti-Censorship Act of
10 1984; or
11 '' (ii) concerning cryptographic communications
12 or technology.
13 ''(2) Under regulations issued by the President, the
14 head of a covered agency may impose the special security
15 procedures specified in paragraph (3) or (4), or both, with
16 respect to a covered employee of such covered agency.
17 11(3)(A) A covered agency may, as a condition for access
18 to covered information, require a covered employee to enter
19 into an agreement requiring the individual to submit for
20 prepublication review those portions o? any writings of such
21 individual which such individual reasonably believes might
22 contain covered information.
23 '' (B) Nothing in section 7363 of this title shall
24 prevent the enforcement of an agreement requiring
25 prepublication review as described in subparagraph (A).
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1 ''(4) A covered agency may, as a condition for access to
2 covered information, require a covered employee to submit to
3 a polygraph examination, subject to the following
4 conditions:
5 ''(A) The head of a covered agency may require a
6 covered employee to submit to a polygraph examination
7 only if the agency head determines, in writing, that
8 such covered employee has (or, in the case of an
9 applicant, would have) access to covered information,
10 the unauthorized disclosure of which could reasonably be
11 expected to result directly in the loss of--
12 "(i) human life;
13 '' (ii) intelligence sources or methods which are
14 vital to the fulfillment of national security
15 requirements or which provide a unique capacity to
lb intelligence agencies of the United States; or
17 ''(iii) technologies, plans, or procedures vital
18 to the strategic advantage of the United States.
19 ''(B) A polygraph examination under this paragraph--
20 11(i) shall be limited to questions designed to
21 ascertain whether the covered employee has
22 committed, is committing, or intends to commit
23 espionage against the United States; and
24 ''(ii) may be administered only as provided in
25 section 7362(b)(2) of this title.
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1 I '' (C)(i) A covered agency may not take or threaten
2 to take any action against a covered employee, or fail
3 to take or threaten to fail to take any action on behalf
4 of a covered employee, on the basis of any inference or
5 determination (referred to in section 7361(4) of this
6 title) made from that individual's performance in the
7 course of a polygraph examination, unless the
8 appropriate agency head personally determines, in
9 writing, that a decision not to carry out the measure
10 concerned would pose an unacceptable risk to national
11 security.
12 '' (ii) For purposes of clause (i), the term 'measure
13 concerned' means the taking or threatening to take an
14 action against a covered employee, or the failing to
15 take or threatening to fail to take an action on behalf
16 of a covered employee, as referred to in such clause.
17 11(5)(A) Before placing an individual in a position
18 which is subject to.the special security procedures
19 specified in paragraph (3) or (4), or which the covered
20 agency, with reasonable certainty, anticipates will be made
21 subject to such procedures during the individual's expected
22 tenure, such agency shall--
23 ''(i) provide written notice informing the
24 individual--
25 ''(1) of the fact that the position is subject
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1 to those procedures, or
2 ''(II) of the agency's intention to make the
3 position subject to those procedures (including the
4 '? anticipated effective date),
5 as the case may be; and
6 '' (ii) provide to such individual a copy of the then-
7 current regulations under paragraph (2) which apply to
8 such position, or which would apply to such position if.
9 it were then so subject to those procedures, as the case
10 may be.
11 "(B)(i) Notwithstanding any other provision of law, the
12 failure of an individual described in clause (ii) to comply
13 with any of the special security procedures specified in
14 paragraph (3) or (4). may serve as the basis for denying or
15 withdrawing clearance for access to covered information in
16 the case of such individual, but may not be considered for_
17 purposes of any decision concerning separation, a reduction
18 in grade or pay, or other action against such individual.
19 ''(ii) An individual shall be considered. to be an
20 individual described in this clause if such individual--
21 ''(I) is holding a position as of the date on which
22 it first becomes subject to any of the special security
23 procedures specified in paragraph (3) or (4); and
24 11(11) was afforded no advance notice under
25 subparagraph (A)(i)(II) with respect to such position.
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1 '' (6) The President shall submit to each House of the
2 Congress for each calendar year beginning after the
3 effective date of the Federal Polygraph Limitation and Anti-
4 Censorship Act of 1984 a report which shall include--
5 ''(A) a list identifying each agency which was a
6 covered agency during any part of the year;
7 I'M the number of covered employees within each
8 such agency during such year;
9 '' (C) the number of covered employees, in the
10 aggregate and by agency, required to enter into an
11 agreement under paragraph (3) during such year;
12 ''(D) the number of covered employees, in the
13 aggregate and by agency, subject to any agreement under
14 paragraph (3) during such year;
15
I'M the number of writings submitted during such
16 year in accordance with any agreement entered into under
17 paragraph (3); and
18 I'M the number of covered employees, in the
19 aggregate and by agency, required to submit to a
20 polygraph examination under paragraph (4) during such
21 year.''.
Page 9, in the matter after line 8 and before line 9,
strike out the item relating to section 7365 and insert in
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lieu thereof the following:
''7365. Exceptions.''.
Page 9, strike out line 20 and all that follows
thereafter through page 10, line 2, and insert in lieu
thereof the following new subsection:
1 (b) Nothing in subsection (a) applies with respect--
2 (1) to the Central Intelligence Agency or the
3 National Security Agency, or to any agreement which
4 requires prepublication review by either of those
5 agencies; or
6 (2) to--
7 (A) a covered agency, as defined in subsection
8 (b) of section 7365 of title 5, United States Code
9 (as added by this Act) with respect to any agreement
10 which requires prepublication review by such covered
11 agency, but only to the extent that-.such agreement
12 would be permitted under paragraph (3) of such
13 subsection; or
14 (B) any such agreement, to such extent.
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[COMMITTEE PRINT]
MABcH 19, 1984
[Amendment in the nature of a substitute to H.R. 4681]
Offered by Mrs. SCHBOEDER
1 Strike out all after the enacting clause and insert in lieu
2 thereof the following:
3 That this Act may be cited as the "Federal Polygraph Limi-
4 tation and Anti-Censorship Act of 1984".
5 SEC. 2. (a) Chapter 73 of title 5, United States Code, is
6 amended by adding at the end thereof the following new
7 subchapter:
8 "SUBCHAPTER VI-POLYGRAPH EXAIHNATION
9 AND PREPUBLICATION REVIEW RESTRIC-
10 TIONS
11 "T 7361. Definitions
12 "For purposes of this subchapter-
13 "(1) the term `agency' means-
14 "(A) an Executive agency;
15 "(B) the United States Postal Service;
16 "(C) the Postal Rate Commission;
17 "(D) the Administrative Office of the United
18 States Courts;
J. 32-228-0
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1 "(E) the Library of Congress;
2 "(F) the Government Printing Office;
3 "(G) the Office of Technology Assessment;
4 "(H) the Congressional Budget Office;
5 "(1) the Office of the Architect of the Cap-
6 itol; and
7 "(J) the Botanic Garden;
8 "(2) the term `employee' means-
9 "(A) an individual employed by an agency;
10 "(B) a Congressional employee (other than
11 an individual under subparagraph (A)); and
12 "(0) an expert or consultant who is under
13 contract under section 3109 of this title with an
14 agency, including, in the case of an organization
15 performing services under such section, an
16 individual involved in the performance of such
17 services;
18 "(3) the term `classified information' means
19 information-
20 "(A) specifically authorized under criteria es-
21 tablished by statute or Executive order to be kept
22 secret in the interest of national defense or foreign
23 policy; and
24 "(B) in fact properly classified pursuant to
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1 "(4) the term `polygraph examination' means an
2 interview with an individual which involves the use of
3 A. device designed to permit the examiner to make an
4 inference or a determination, by evaluation of meas-
5 ured physiological responses, concerning whether the
6 individual has truthfully or deceptively responded to
7 inquiries made in such interview;
8 "(5) the term `action', as used with respect to an
9 employee or applicant for employment, means-
10 "(A) a personnel action under clauses (i)
11 through (x) of section 2302(a)(2)(A) of this title;
12 "(B) a decision concerning clearance for
13 access to classified information; and
14 "(C) a performance evaluation (other than
15 under chapter 43 of this title);
16 in the case of such employee or applicant; and
17 "(6) the term `prepublication review' means sub-
18 mission of information to an agency for the purpose of
19 permitting such agency to examine, alter, excise, or
20 otherwise edit, or censor such information before it is
21 publicly disclosed, but does not include any such sub-
22 mission with respect to information which is to be dis-
23 closed by an employee in such employee's official
24
capacity.
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1 '17362. Restrictions relatin to polygraph examinations
ActPT AS Qrvvta(rar ;.I sec1?G, ?-P JA
.~.
2 "W-All agen ma
t ~Tl
y y not-
"(1) require, threaten to require, or, except as
provided in subsection (b), request any employee or
5 applicant for employment to submit to a polygraph
6 examination;
7 "(2) take, or threaten to take, any action against
8 an employee or applicant for employment-
9 "(A) on the basis of that. individual's refusal
10 to submit to a polygraph examination; or
11 "(B) on the basis of any inference or deter-
12 mination (referred to in section 7361(4) of this
13 title) made from that individual's performance _ in
14 the course of a polygraph examination; or
15 "(3) fail to take, or threaten to fail to take, any
16 action on behalf of an employee or applicant for
17 employment-
18 "(A) on the basis of that individual's refusal
19 to submit to a polygraph examination; or
20 "(B) on the basis of any inference or deter-
21 mination described in paragraph (2)(B).
22 "(b)(1) An agency may request an employee, in writing,
23 to submit voluntarily to a polygraph examination-
24 "(A) if the examination is administered as part of
25 a specific investigation into alleged criminal condue.t-
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1 "(i) after the completion, by other means, of
2 as thorough an investigation as circumstances
3 reasonably permit; and
"(ii) solely for the development of informa-
5 tion essential to that investigation;
6 "(B) if the individual is reasonably believed to
7 have knowledge of the matter under investigation; and
8 "(C) if the alleged criminal conduct constitutes an
9 offense punishable by death or imprisonment for a term
10 exceeding one year.
11 "(2) A polygraph examination under this subsection may
12 be administered only by an individual employed by, and
13 under the direction of-
14 "(A) the Central Intelligence Agency;
15 "(B) the National Security Agency;
16 "(C) the Federal Bureau of Investigation;
17 "(D) the United States Secret Service;
18 "(E) the Drug Enforcement Administration;
19 "(F) the Bureau of Alcohol, Tobacco, and Fire-
20 arms;
21 "(G) the Postal Inspection Service, United States
22 Postal Service;
23 "(H) the Intelligence and Security Command,
24 United States Army; ?
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1 "(I) the Criminal Investigation Command, United
..2 States Army;
3 "(J) the Naval Investigative Service, Department
4 of the Navy;
5 "(K) the Office of Special Investigations, Depart-
6 ment of the Air Force; or
7 "(L) the Marine Corps.
8 'T 7363. Restrictions relating to prepublication review
Frey ar pro ic1ec :16 secf:?s 7S0-'S of ?h: r /; f/e,
9 ~P agency may not-
10 "(1) request, require, or threaten to require, an
11 employee or applicant for employment to enter into an
12 agreement, any part of which requires prepublication
13 review;
14 "(2) take, or threaten to take, any action against
15 an employee or applicant for employment on the basis
16 of that individual's refusal to enter into such an
17 agreement;
18 "(3) take, or threaten to take, any action against
19 an employee or applicant for employment on the basis
20 of that individual's refusal to comply with any of the
21 provisions of such an agreement which require pre-
22 publication review;
23 "(4) fail to take, or threaten to fail to take, any
24 action on behalf of an employee or applicant for em-
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1 ployment on the basis of a refusal referred to in
2 paragraph (2) or (3); or
3 "(5) establish or enforce, or threaten to establish
4 or enforce, any other requirement in order to compel
5 prepublication review.
6 'T 7364. Remedies
7 "(a)(1) Subject to paragraph (2) and subsection (b), any
8 person aggrieved by a violation of section 7362 or 7363 of
9 this title may bring a civil action against the United States
10 for equitable or monetary relief, or both, in the district. court
11 of the United States for the district in which that person
12 resides, for the District of Columbia, or, in the case of an
13 employee or former employee, for the district in which that
14 person was employed at the time the cause of action arose.
15 "(2) A civil action under this subsection shall be forever
16 barred unless commenced within two years after the cause of
17 action arose. For purposes of this paragraph, a cause of
18 action shall be deemed to have arisen on the date that the
19 person aggrieved knew, or with reasonable diligence should
20 have known, of the violation concerned.
21 "(3) The court shall award reasonable costs of litigation,
22 and may award reasonable attorney fees, to a prevailing
23 plaintiff in an action brought under this subsection.
24 "(b)(1) If a person aggrieved' by a violation of section
25 7362 nr 7iR3 of th;c t;t1n ol[?r 1. ..:.t a A-
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1 proceedings for remedial action under agency administrative
2 procedures, such person may raise the matter under subsec-
8 - tion (a) or under such administrative procedures, but not
4 both,
5 "(2) A person shall be deemed to have exercised the
6 option under this subsection to raise a matter either under
7 subsection (a) or under agency administrative procedures
8 upon the timely commencement of an action by such person
9 in accordance with the Federal Rules of Civil Procedure or
10 the timely initiation of such administrative procedures by
11 such person, as the case may be.
12 "(3) For purposes of this subsection, the term `agency
13 administrative procedures' means any formal -process of
14 review by an agency provided under statute, regulation, - or
15 Executive order, including judicial review of any determina-
16 tion made in the course of such process.
FJCtt~iad t
17 "T 7365. 19
h
18 "Sections 7362 and 7363 of this title do not apply-
19 "(1) to the Central Intelligence Agency, in the
20 case of any individual employed by, or detailed to, the
21 Central Intelligence Agency, any individual applying
22 for it position in the Central Intelligence Agency, or
23 any expert or consultant under contract with the
24 Central Intelligence Agenoy; or
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1 "(2) to the National Security Agency, in the case
2 of any individual employed by, or detailed to, the Na-
3 tional Security Agency, any individual applying for a
4 position in the National Security Agency, or any
7 (b) Tie analysis for chapter 73 of title 5, United States
8 Code, is amended by adding at the end thereof the following:
"SUBCHAPTER VI-POLYGRAPH EXAIUNATION AA'D
PREPUBLICATION REZrJ[EW RESTRICTIONS
"7361. Definitions.
"7362. Restrictions relating to polygraph examinations.
"7363. Restrictions relating to prepublication review.
"7364. Remedies.
"7365. Exemptions.".
ED)
5 expert or consultant under contract with the National
6 Security Agency:'!
9 SEC. 3. (a)(1) The provisions of any agreement referred
10 to in section 7363(1) of title 5, United States Code (as added
11 by this Act) are, to the extent that such provisions relate to
12 prepublication review, hereby rescinded.
13 (2) The bead of each agency concerned shall provide
14 written notice to each individual who, immediately before this
15 Act takes effect, was a party to any such agreement, inform-
16 ing such individual of-
17 (A) the enactment of this section; and
18 (B) the provisions of the agreement rescinded as a
19
20
result of the enactment of this section.
21 -Cc-"I,,...,, - ., '%. _
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2 those a encies.
3 (c) For purposes of this section, "prepublication review"
4 and "agency" each has the meaning given that term in sec-
5 tion 7361 of title 5, United States Code (as added by this
6 Act.).
7 SEC. 4. This Act shall take effect on April 15, 1984.
0
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