SECURITY POLICY CONCERNING TRAVEL AND ASSIGNMENT OF PERSONNEL WITH ACCESS TO COMPARTMENTED INFORMATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP82M00591R000400080018-2
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 16, 2016
• Document Release Date: April 28, 2005
• Sequence Number: 18
• Publication Date: June 16, 1976
• Content Type: MF

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16. June 1976
MEMORANDUM FOR: Chairman, Security Committee, USIB
SUBJECT :
Security Policy Concerning Travel and Assignment
of Personnel with Access to Compartmented Information
REFERENCES :
(a)
(b)
Security Committee Memorandum, dtd 17 February 1976,
same subject
Security Committee Memorandum, dtd 29 April 1976,
same subject
1. This is a formal response to your referenced memoranda concerning
private foreign travel of personnel with access to sensitive compartmented
information. In general, it reflects our earlier oral opinion rendered during
informal discussions with you.
2. You stated that the USIB Security Committee currently is
reviewing its instructions in this area, and is considering various alternative
approaches. Specifically, you requested the opinion of this Office as to the
legality of:
a. restricting a current employee's private travel to
a high risk area.
b. ... former employee's private travel to a high
risk area.
You drew our attention to the "Indoctrination Oath" used by the National
Security Agency" which requires that a new employee "understand that
certain limitations may be placed on foreign travel in or through Communist
or Communist-dominated areas. "
3. There is no reason why intelligence agencies may not formulate policies
with respect to the private foreign travel of their employees to "denied" foreign
areas, or why such policies may not be articulated in administrative regulations.
In cases where employees have sensitive clearances and access to sensitive classi-
fied intelligence, it is understandable that there would be apprehensions as to the
potential for compromise of the information these individuals possess or are likely
to possess. It is questionable, however, in light of the constitutionally protected
rights of U . S. citizens to travel abroad as they wish, whether such regulations may
go further than merely expresspolicy and prohibit, explicitly or by implication,
private foreign travel to certain countries, particularly with respect to former
employees. Moreover, such re ulations would be illusory, since they would likely
be legally or practically unenforceable .
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4. Restrictions on private foreign travel must take into consideration
the constitutional rights of U.S. citizens to travel abroad where they wish.
The Supreme Court has held that the right to travel is part of the "liberty" of
which a person cannot be deprived without due process of law under the Fifth
Amendment of the Constitution, Kent v. Dulles, 357 U.S. 116 (1958) and Aptheker
v. Secretary of State, 378 U.S. 500 (1964). As such, it is clearly not absolute;
it does not mean that under no circumstances can it be inhibited. The require-
ments of due process are a function not only of the governmental restrictions
imposed, but also the extent of necessity for such restrictions. In Worthy v.
Herter, 270 F . 2d 905 (D.C. Cir. 1959), cert. denied 361 U.S. 918, the court held
that the Secretary of State had the authority to withhold a citizen's passport as
a means of enforcing area :restrictions on two grounds: The inherent foreign
affairs power of the executive and statutory authority based on ?215(b) of the
Immigration and Nationality Act of 1952. In 1965, in Zemel v. Rusk, 381 U.S. 1, the
Supreme Court held that ?211(a) of the Passport Act of 1926, which authorized the
Secretary to determine area restrictions and to restrict the validity of U.S. pass-
ports for travel in these countries, was constitutional, and that the Secretary of
State has the authority to refuse to validate the passports of United States citizens
for travel to Cuba. While acknowledging that freedom of travel was "liberty" pro-
tected by the Fifth Amendment, the majority argued that considerations of foreign
policy justified some restrictions on that freedom, and that restrictions involved
in the case were supported by the weightiest considerations of national security.
The Court stated, at pp. 14-18:
In Kent v. Dulles, supra, 357 U.S. at 125. . . . ., we held
that " [t] he right to travel is a part of the 'liberty' of which the
citizen cannot be deprived without due process of law under the
Fifth Amendment." See also Aptheker v. Secretary of State, supra,
378 U.S. at 505-506. . . . . However, the fact that a liberty cannot
be inhibited without. due process of law does not mean that it can under
no circumstances be inhibited.
The requirements of due process are a function not only of
the extent of the governmental restriction imposed, but also of the
extent of the necessity for the restriction. Cuba is the only area in
the Western Hemisphere controlled by a Communist government. It
is, moreover, the judgement of the State Department that a major goal
of the Castro regime is to export its Communist revolution to the
rest of Latin America. The United States and other members of the
Organization of American States have determined that travel between
Cuba and the other countries of the Western Hemisphere is an impor-
tant element in the spreading of subversion, and many have therefore
undertaken measures to discourage such travel. It also cannot be
forgotten that in the early days of the Castro regime, United States
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citizens were arrested and imprisoned without charges. We think,
particularly in view, of the President's statutory obligation to "use
such means, not amounting to acts of war, as he may think necessary
and proper" to secure the release of an American citizen unjustly
deprived of his liberty by a foreign government, that the Secretary
has justifiably concluded that travel to Cuba by American citizens
might involve the Nation in dangerous international incidents, and
that the Constitution does not require him to validate passports for
such travel.
That the restriction which is challenged in this case is supported by
the weightiest considerations of national security is perhaps best
pointed up by recalling that the Cuban missile crisis of October 1962
preceded the filing of appellant's complaint by less than two months.
This does not mean that simply because a statute deals with
foreign relations, it. can grant the Executive totally unrestricted
freedom of choice. However, the 1926 Act contains no such grant.
We have held, Kent v. Dulles, supra, and reaffirm today, that the
1926 Act must take its content from history: It authorizes only those
passport refusals and restrictions "which it could fairly be argued
were adopted by Congress in light of prior administrative practice. "
Kent v. Dulles, supra, 357 U.S. at 128, 2 L. Ed. 2d at 1211. So limited,
the Act does not constitute an invalid delegation.
Two years later the significance of the Zemel case was sharply undercut. Criminal
proceedings were brought. under ?215(b) of the Immigration and Nationality
Act of 1952 against several citizens who traveled to Cuba in violation of the area
restrictions. The Supreme Court unanimously held in United States v. Laub,
that violation of area restrictions had not been made a criminal offense by
Congress, and therefore the defendants could not be convicted. Finally, in
Lynd v. Rusk, 389 F. 2d 940 (D.C. Cir. 1967), the court stated that the Secretary
has authority to decline to issue a passport when the citizen's sole purpose is
to journey to a restricted area, but that the Secretary does not have authority
to withhold a passport when the applicant seeks to travel to a non-restricted area,
even though he plans also to visit a restricted zone. The Secretary's statutory
authority in the latter instance is limited to taking reasonable steps to assure
that any travel into or within a restricted area is done without a passport; in
achieving that objective the Secretary may require a passport holder to leave
his passport with a responsible depository approved by the Secretary, before
undertaking travel to a restricted country.
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5. In summary the courts in effect have told the Secretary of State that
Congress has given him the power to designate restricted areas, but that
Congress failed to provide any effective means of enforcing these restrictions.
6. These cases, while not directly in point with respect to the restrictions
you are considering, are indicative of the potential reception which attempts
to enforce restrictions would face in court. It is clear that it would be difficult
to prevent an employee, present or former, for national security reasons, from
engaging in private foreign travel to denied areas by means of passport denial.
Moreover, the intelligence community would be in an even more precarious posi-
tion in attempting to justify other enforcement measures under the authority of
the National Security Act and other laws which are much less specific with respect
to travel abroad than the passport statutes. In this context, we must keep in
mind that statutes limiting the right to travel are to be strictly construed, Kent v.
Dulles.
7. In any event, enforcement of restrictions on the private foreign travel
of current employees would seem much more justifiable than on the private foreign
travel of former employees. With respect to current employees, administrative
remedies technically are available for enforcement purposes. Given the Director's
statutory responsibility to protect intelligence sources and methods and classified
information, under the National Security Act of 1947, particular NSCID's and DCID's,
and other law, it is arguable that an intelligence agency in creating public office
or providing for public employment, may attach thereto such reasonable conditions
relating to the national security as it chooses, and one who accepts such office
or employment is bound by such conditions. And, of course, in the case of CIA,
the DCI may ultimately employ the sanction of employment termination. Under
the National Security Act (.?102(c)), and notwithstanding the provisions of any
other law, he "may in his discretion, terminate the employment of any officer or
employee of the Agency whenever he shall deem such termination necessary or
advisable in the interest of the United States. . . . " This right has been construed
as the "plenary power to discharge an employee at will . . . for any reason, or
no reason at all," Kochan v. Dulles, Civ. Act. No. 2728-58, May 20, 1959
(unpublished). See also Torpats v. Dulles, Civ. Act. No. 1111: 61, July 27,
1961 and George S. Rhodes v. U . S . , 156 Ct. Cl. 31 (1962).
8. With respect to the private foreign travel of former employees, legal
enforcement measures are more limited or unavailable altogether. In this con-
text, the administrative enforcement measures applicable to present employees
are not available, and the situation is analogous to that of private citizens or
contractor personnel (see para 10 below).
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9. I discussed this subject with Knute Malmborg, Assistant Legal Advisor
for Management Affairs at State. The Department currently has regulations
which provide that (1) a passport may be refused in cases where the Secretary
of State determines that a national's activities abroad are causing or are likely
to cause serious damage to the national security or foreign policy of the United
States, and (2) that passports cease to be valid for areas to which travel is
restricted in the national interest, on determination of the Secretary, because
such travel would seriously impair the conduct of U.S. foreign affairs, see 22 CFR
?51.70(b) (4) and ? 51. 72. He felt that attempting to enforce such regulations with
respect to employees with access to sensitive intelligence on the basis of national
security or foreign relations interests would be extremely difficult to justify in
court. He suggested that perhaps the more prudent policy would be to require,
in the case of' employees, the reporting of any intended foreign travel and the
use of persuasion if such travel were adverse to the interests of the Agency.
10. This strategy is precisely the current posture of CIA. CIA regulations
provide essentially that employees contemplating private foreign travel, either
direct or incidental to official travel, must report such contemplated travel and
receive Agency permission. Specifically, a CIA employee planning to undertake
private foreign travel into, over or through risk-of-capture areas (as listed in
the Appendix to this memorandum) is required to submit a request, and obtain the
prior approval of the Director of Security. The Office of Security coordinates
such requests with the operating divisions responsible for the area of proposed
travel and thereafter the Director may disapprove such a request upon the deter-
mination that the proposed. travel is in conflict with the best interests of the Agency,
and contract personnel must also seek prior approval of the Director o ecurity
for contemplated foreign travel into, over or through the USSR or any Communist-
controlled country, but the regulations acknowledge that the U.S. Government can-
not legally prevent foreign travel of contractors or contract personnel and must
rely on persuasion and cooperation with the individual involved, The
regulations require reporting when an employee and/or dependent travel is con-
templated to the PRC and when close relatives of an employee plan
private foreign travel to denied areas Other provisions establish
standards of employee conduct when private foreign travel is undertaken,
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11. I discussed the Agency's experiences under these regulations with
of OS/EAB, and learned about the practical problems in preventing
undesirable travel. He advised that OS was concerned with the private foreign
travel to denied areas of employees who have sensitive clearances and who have
access to sensitive information. Most of these employees are warned about the
possible consequences of such travel, but OS has generally stopped short of
refusing permission to travel abroad. More and more employees are insisting on
such a right and many are wi in' g o forego Agency employment if it comes to that .
If such personnel cannot be persuaded to abandon their foreign travel, it is not
likely that stringent prohibition regulations would make any difference.
12. It is difficult to determine what purpose contractual provisions of the
nature of those in the NSA Oath would fulfill other than to bring to the attention
of personnel an agency's interests in the area of private foreign travel to denied
areas, and to record such notice. Provisions of this nature could hardly serve
to cure any constitutional or practical infirmities in any proposed enforcement
procedures. In passing, we note that, in the NSA Oath, obligations undertaken
by the oath-giver are that he understand NSA's interests in restricting certain
private foreign travel and that he consult with the Director of Security about his
own travel plans. To the extent this provision implies a promise not to engage
in private foreign travel on which NSA places limitations, the Oath may very well
reflect legal authorities unique to those of the armed forces in relation to military
personnel. Such authorities, of course, would not be available to non-military
agencies.
13. As far as I could determine, there are no provisions in Agency secrecy
agreements with respect to private foreign travel, except in the case of contractor
personnel. Pursuant to regulations the following statement is placed
in contracts signed by such individuals:
I understand that travel into, over, through the U.S.S.R. or any
Communist-controlled countries may constitute a security hazard. I,
therefore, agree to request approval in advance from the Security
Headquarters of the sponsoring activity for all such travel.
As previously mentioned, however, this regulation acknowledges that the private
foreign travel of contractor personnel cannot be legally restricted. There is no
statement concerning private travel abroad in documents signed by personnel when
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they enter on duty. Apparently, there are no contractual restrictions which relate
to the private foreign travel of employees after termination of their employment by
the Agency, although such employees are asked to report any such contemplated
travel undertaken within one year after leaving the job. Departing employees are
asked to provide details on any contemplated foreign travel at security debriefings.
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Assistant General Counsel
General Law division
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Risk-of-Capture Areas
Include, but are not limited to:
(1) U.S.S.R.
(2) People's Democratic Republic of
Korea (North Korea)
(3) People's Republic of China (China)
(4) Tibet
(5) Outer Mongolia
(6) Estonia
(7) Latvia
(8) Lithuania
(9) Poland
(10) Czechoslovakia
(11) German Democratic Republic
(East Germany)
(12) Hungary
(13) Rumania
(14) Bulgaria
(15) Albania
(16) North Vietnam
(17) Demilitarized Zone of Korea
(18) Soviet Sector of Berlin
(19) Yugoslavia
(20) Macao
(21) Certain parts of South Vietnam,
Laos, and Cambodia
(22) Quemoy and Matsu Islands
(23) Cuba
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