MEETING WITH SENATOR SAM J. ERVIN, JR.

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP72-00310R000200100035-7
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 11
• Document Creation Date: December 16, 2016
• Document Release Date: July 11, 2005
• Sequence Number: 35
• Publication Date: February 24, 1969
• Content Type: MFR

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_. ,.~.....r it 11?
OGC 69-0346
24 February 1969
MEMORANDUM FOR THE RECORD
SUBJECT: Meeting with Senator Sam J. Ervin, Jr.
1. On 24 February 1969, at 3 p. m. , Mr. Maury and
Mr. Houston met with Senator Sam J. Ervin, Jr. Also present
were Rufus L. Edmisten and Marcia J. MacNaughton of the staff
of the Subcommittee on Constitutional Rights, Senate Committee
on Judiciary.
2. The subject was S. 782, the successor to S. 1035,
and Mr. Houston opened with reference to the opinion by the
Library of Congress on protection of CIA's information which
Senator Ervin had introduced into the Congressional Record and
which he had mentioned to the Director. Senator Ervin had read
our memorandum of law differing with the Library of Congress'
conclusions, and Mr. Houston followed along with some discussion
of the technical aspects of what we ran into when we found our-
selves in court. Senator Ervin either did not grasp, or did not
agree with, the security implications we foresaw arising out of
court cases based on his law and said, in effect, that he felt
this would not change CIA's situation. He pointed out that at
the request of the Agency he had made a number of changes in
the bill which he felt were well founded, and that he had taken
care of all the possible objections, so he was opposed to granting
CIA any exemption from the whole bill. Mr. Houston said it was
obvious that our differences arose from the different concept of
the role the court would play as a result of the passage of the
bill.
3. Mr. Maury dwelt at some length on our concept of
personnel security, pointing out the intensive efforts of the
opposition intelligence agencies to penetrate us, the stress and
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strain of agents operating abroad, and the need for supervision
and knowledge of our employees. He felt the bill would impair
our right to inquire as to certain employee activities, but
Senator Ervin differed, saying that if we thought that the matters
in question were a danger to our security they would be pertinent
to his employment and, therefore, would not be barred by the
bill.
4. The Senator brought up his frequently expressed distrust
of the polygraph. In response, Mr. Maury discussed how we use the
polygraph and its effectiveness, emphasizing that it was merely a
tool, not a definitive test. Senator Ervin said that if he were alone
on this bill he would abolish the polygraph as he did not think it was
a valid approach. He then said that he had received a great many
complaints from people about the use of the polygraph, particularly
about certain of the questions asked. Mr. Maury pointed out that
no reports of such complaints had come back to us and we would
like to know something about the nature of the complaints, particu-
larly what questions were found most objectionable. Senator Ervin
conceded that many of the complainants might have been applicants
rather than employees and there might have been more complaints
from NSA than from CIA, but he did not offer any further informa-
tion on this subject.
5. Mr. Maury asked for Senator Ervin's interpretation
of the right to counsel under the bill, and the Senator agreed that
as written an employee could ask for counsel as soon as he felt
he was getting any sort of hostile questioning or disciplinary
interviews. Mr. Maury said he thought this impaired the command
structure and, while we would agree to the right of counsel in
serious situations where a man's rights might be substantially
damaged, there should be some limitation. Later on in the
conversation, Senator Ervin appeared to concede that there was
some merit to this argument and said he might consider appropriate
language limiting the right to counsel. There was also further
talk about the fact that applicants were given certain rights under
the bill which could lead to harassment by the Students for a
Democratic Society or similar groups. Again, this seemed
to appeal to Senator Ervin, and he said he might give some
consideration to limiting the applicants' rights.
6. Outside of the two small points mentioned above, it
was clear that Senator Ervin thought he had done everything
possible for CIA in his earlier changes and he was adamantly
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opposed to a total exemption for the Agency. The meeting was
friendly, however, and in fact Senator Ervin said he enjoyed it.
He seemed relaxed and pleasant throughout.
LAWRENCE R. HOUSTON
General Counsel
cc: Executive Director
DDS
Legislative Counsel
OGC chrono
subject LEGISLATION-5.782
OGC: LRH: j eb
STAT
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S. 782 - Specific Problems Affecting the Central Intelligence Agency
Section 1(b), while commendably protecting an employee from
compulsory attendance at meetings and lectures on matters unrelated
to his official duties, would, for example, make it unlawful for any
department or agency to "take notice" of the attendance of one of i. employees at a meeting held by a subversive group or organization.
While it is doubted that this is the intent of the bill, it clearly is one
of the effects of Section 1(b).
Section 1(d), in making it unlawful to require an employee to
make any report of his activities or undertakings not related to the
performance of official duties, is similar in its effect to Section 1(b).
It poses the question of whether the Agency, having discovered that
one of its employees is in regular and unreported contact with an
intelligence agent or official of a foreign government, would be
violating the law in asking the employee for an explanation of this
relationship, particularly in the case in which the employee's
official duties do not relate to matters involving that particular
foreign government. Further, this Section is in conflict with a
long-established policy that employees of the Agency must obtain
prior approval in making public speeches or writing for publication.
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These and additional restrictions are established to prevent the
inadvertent disclosure of sensitive intelligence through employee
activities or undertakings not related to official duties. Here- again
the question arises whether the Agency would be violating the law
in exerting control over these activities.
Section 1 (e) deals with psychological testing. S. 782
authorizes the Directors of the FBI, NSA and CIA, or their desig-
nees, on the basis of a personal finding in each individual case, to
use such tests for the purpose of inquiring into the sensitive areas
of religious beliefs and practices, personal family relationships,
and sexual attitudes, but it denies the use of such testing to all
other departments and agencies without regard to the fact that
employees of these departments and agencies may be regular re-
cipients of highly classified information.
Section 1 (f) establishes the same prohibition on the use of
the polygraph test as applies to psychological testing, and grants
the same partial exemption to the FBI, NSA and CIA. Again, the
use of the polygraph test in the proscribed areas is denied to all
but these three agencies, irrespective of the fact that highly sensi-
tive positions maybe involved.
F Is Pa 0 F!
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Section 1(k) poses a problem for the Agency in that it would
appear to require the presence of counsel in behalf of an employee
as soon as and at the very moment that a supervisor were to ask
the employee the reasons for some suspected dereliction of duty
ranging from a serious security violation to tardiness in reporting
for duty or sloppy work habits. This provision goes to the very heart
of the continuous process of review of intelligence operations and
activities to determine their effectiveness, the quality of information
derived, and professionalism in which the activities were conducted.
Out of such interviews or postmortems there naturally evolves the
review of individual employee performance which, if unsatisfactory,
can readily result in disciplinary action. A great many extremely
sensitive intelligence operations and activities are involved in this
process and the presence of private counsel in behalf of an employee
would raise most serious questions as to the appropriate control
and protection of the intelligence information involved. There is
no desire that an employee should be deprived of the right of counsel
when appropriate, but the wording of this Section would make it
"unlawful" to ask the simple preliminary questions which are
necessary to establish whether or not there is some failure in per-
formance or dereliction of duty unless provision is made for the
presence of counsel if requested by the employee.
F OR IFi .j
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Section 4 of the bill would permit any employee or applicant
who alleges that an officer of the Executive Branch has violated or
threatened to violate provisions of the Act to bring civil action in the
district courts. Communist or other subversives acting on their
own or on instructions from foreign agents, could file suits for the
sole purpose of harassment based on allegations of improper question-
ing during recruitment interviews. A concerted effort of this nature
could seriously impair the orderly recruitment process of the Agency.
The will and ability of small minorities to interrupt the normal
functioning of both public and private institutions has been amply
demonstrated in recent months. There is little doubt that such
groups would be quick to recognize and exploit the weapon provided
by this Section of the bill.
Section 5. The comments made with respect to Section 4
above are only to a slightly lesser extent equally applicable to
Section 5.
Section 6. This Section grants a partial exemption to the
FBI, NSA and CIA with regard to financial disclosure and the use
of psychological and polygraph testing by requiring each of the
Directors, or their designees, to make a personal finding with
regard to each individual case that such testing or financial
is ONLY
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disclosure is required to protect the national security. If the
Agency is to comply with the spirit of the law, it will still be
necessary that a personal finding be made in each individual case
that such testing or financial disclosure is required to protect the
national security. Inquiry by these means into the proscribed
areas, which are the key areas of vulnerability, will not be possible
as a matter of general regulation.
LY
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POINTS RE S. 782 - ERVIN BILL
The Agency has special problems in ensuring the loyalty, security
consciousness, integrity and psychological stability of its employees:
a. Soviet and other hostile services assign overriding
priority to penetrating U. S. intelligence organs by identifying
and exploiting personal vulnerabilities and weaknesses of our
personnel.
b. Such penetration can enable the enemy to identify and
neutralize our own intelligence operations, learn what we know,
and don't know, about enemy capabilities and intentions, provide
insights enabling the enemy to confuse and deceive us, and provide
extremely useful information to the enemy about U. S. national
policy, diplomatic tactics and military capabilities, technology,
etc. , with which Agency personnel often become familiar in the
course of their routine work.
c. Intelligence personnel are not only an attractive target
for the enemy, but in many respects a particularly accessible
one. Unlike members of most government organizations,
-er intelligence personnel often must carry out
their demanding and sometimes dangerous assignments completely
alone and in hostile areas. They are thus subject to severe psychological
pressure. They are far removed from immediate supervision,
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or even observation by friendly colleagues. In these circumstances
any latent vulnerabilities and instabilities in their character or
loyalty may come to the surface and be detected and exploited by
an ever alert enemy.
d. In such circumstances we can neither observe nor assist
our personnel in their day-to-day work. The only protection against
the above- noted hazards is to be sure that we pick the right man for
the job by employing the best possible assessment and evaluation
techniques.
e. We think this is essential not only to protect the interests
of the Agency and the Government, but that of the individual as well.
Many people, through no fault of their own, are subject to latent
weaknesses and vulnerabilities and we believe it would be a great
disservice to them to impose upon them burdens for which they
are unfitted, perhaps leading to most unfortunate consequences for
them as well as for the Agency.
2. Hence, we have over the years, with the best professional advice
available, devised a number of medical and psychological tests designed to
ensure against assigning the wrong job to the wrong man. In a sense these
tests may be compared with the thorough assessments employed in the
selection of astronauts--too much is at stake to take any chances with
avoidable human error or weakness.
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3. In the past there have been all too many cases where sensitive
agencies of both the U. S. and other free world governments have suffered
massive damage precisely because latent human weaknesses of individuals
in key positions were detected and exploited by our enemies: several
NSA cases a few years back damaged beyond calculation the effectiveness
of that agency; the British Intelligence Service has still not recovered from
the effects of the Blake, Philby and Lonsdale cases; the Germans, French
and Swedes have had similar experiences; and at this moment a massive
investigation is taking place in Brussels to determine the damage done to
NATO security by the Imre case.
4. In view of the foregoing, we are troubled by several specific
provisions of the Ervin bill, which we believe would seriously impair
our ability to maintain the standards of security and integrity which we
think essential in the discharge of our responsibilities. (here pick up
points contained in pages 3 through 6 of letter of 25 September 1967 to.
Chairmen Rivers and Mahon)
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