LEGAL EFFECT OF S. 1035 ON THE INTELLIGENCE ACTIVITIES OF CIA

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00818R000100020003-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 20, 2016
• Document Release Date: July 19, 2006
• Sequence Number: 3
• Publication Date: September 5, 1968
• Content Type: REPORT

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5 September 1968
Legal Effect of S. 1035 on the Intelligence Activities of CIA
1. A memorandum by the American Law Division of the
Library of Congress, dated January 29, 1968, concerning the
effect of S. 1035 on the _ Central Intelligence Agency has been
recently filed in the Congressional Record (Cong. Rec. , 2 July 1968,
pp. S8088 and S8089) after being presented to the Senate Subcommittee
on Constitutional Rights.
2. The author of the article has conducted considerable
research into the statutes which have a bearing on the Agency and its
functions. He also cites several cases which have a bearing on
the applicability of various laws and legal principles to the functions
of intelligence. Unfortunately, however, the author has not had the same
opportunity to research the sensitivities of security agencies generally or of
Central Intelligence Agency, specifically. It is the purpose of this paper to
acquaint those interested in the subject with the actual issues involved
and with certain court rulings in other, perhaps lesser known, legal
proceedings. This discussion demonstrates that there are inherent
in S. 1035 conflicts with statutes and in fact conflicts with judicial
concepts of the necessity for secrecy in intelligence matters.
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3. The article refers to a number of statutory provisions which
it claims were designed to allow CIA to maintain secrecy concerning its
operations and personnel. It cites 50 U. S. C. 403(d)(3) as authorizing
the Director of Central Intelligence to protect intelligence sources and
methods from unauthorized disclosure. That statute places a responsi-
bility on the Director of Central Intelligence for protection of intelligence
sources and methods but in fact arms him with no authority to carry out
that responsibility.
4. Although 50 U. S. C. 403(d)(3) provides no authority to the
Director of Central Intelligence for carrying out the obligation which
it places upon him to protect intelligence sources and methods, the
Supreme Court has steadfastly held to the view that intelligence is a
very special subject. As was stated in the Totten case (Totten v.
United States, 92 U. S. 105 (1876)):
"... all secret employments of the Government in time
of war or upon matters affecting our foreign relations, where
a disclosure of the service might compromise or embarrass
our Government in itspublic duties, or endanger the person
or injure the character of the agent... " cannot be disclosed
in a court of law. "A secret service, with liability to publicity
in this way, would be impossible;.. . The secrecy which such
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contracts (of employment) impose precludes any action for
their enforcement... It may be stated that public policy forbids
the maintenance of any suit in a court of justice, the trial
of which would inevitably lead to the disclosure of matters
which the law itself regards as confidential... greater reason
exists for the application of the principle (of not allowing disputes
involving state secrets to be aired in court) to cases of contract
for secret service with the Government, as the existence of a
contract of that kind is itself a fact not to be disclosed. "
The Totten case has been repeatedly cited with approval by the Supreme
Court. (The most recent case concerning government privileges
decided by the Supreme Court was United States v. Reynolds,
345 U. S. 1 (1953) in which Totten was favorably cited. 97 L. ed. 729,
732, 733, 735. )
5. Any suit filed before a court charging a violation of S. 1035 would
inevitably require assertion of the facts tending to support the violation.
These facts are inextricably involved with Agency functions and operations and
identities of Agency personnel. On the other hand 50 U. S. C. 403g[section 6 of
the CIA Act of 1949, as amended] specifically exempts the Agency from the
provisions of any law requiring publication or disclosure of the Agency organization,
functions, names, official titles, salaries, or numbers of personnel
employed by the Agency. For example, if an employee stationed abroad
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asserted in court a violation of S. 1035 by his superior, the mere
identification of the Agency personnel could reveal classified information
in violation of the secrecy oath which all employees are required to take, and
in itself would be a breach of security contrary to the interests of the United
States and possibly endangering lives of people.
6. This then is the crux of the issue--if the CIA is to be subject
to suits to prove its innocence or the innocence of one of its officers, as
provided in S. 1035, all efforts to maintain the security of its operations become
an exercise in futility. It is apparent that when a court action is maintainable
concerning the performance of a service for the Government, despite the
secrecy required to perform that service, then the service becomes useless
because secrecy is its essence. A mere appearance in court could result
in possible disclosure of names and employment relationships, the very
existence of which are state secrets. If any employee has a statutory right
to a court hearing of his grievance, no matter how wrong or how frivolous
his suit may be and no matter how strong the case for the CIA is, once that
suit is filed a great disservice has been done to the integrity of the Agency's
security system and to its ability to operate anonymously, for the public
examination into the grievance is a serious breach of security and in many
cases may prove hazardous to the lives of certain classes of Agency employees.
It must also be noted when discussing facts which may be revealed in court
that it is a determination of the court in any given case as to whether a
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particular fact is privileged or is a state secret so that it may be withheld.
In other words, if the CIA is sued under section 4 of S. 1035 and the name of
any employee who is germane to the case is considered by the Agency to
be secret information, it becomes the judge's decision whether that name
will be revealed. (United States v. Reynolds, 345 U. S. 1 (1953) ) (Government
privilege annotated in 95 L. ed. 425, 97 L. ed. 735)
7. Under S. 1035 an employee or applicant who felt he had been aggrieved
could go into court alleging a violation of S. 1035. The case would then be subject
to the jurisdiction of the court. The problems which this would pose are best
demonstrated by a recent case in which a suit was brought against the Agency by
the widow of an applicant for employment. Her husband was being considered
for Agency employment and went through the normal applicant processing.
As a result of a regular medical examination, he was informed that his
blood pressure was unacceptably high and that if he would bring it under
control his case would be reviewed. A few days later he committed suicide.
His wife brought suit against the Agency in a Federal court claiming that
during the processing drugs had been administered to her husband which had
so depressed him that his suicide resulted. No drugs of any sort are
administered in Agency processing and the suit was obviously spurious.
To prepare for a defense, however, it was necessary to obtain affidavits
from those members of the Office of Security, Office of Personnel and
Office of Medical Services who had been in any way involved in the processing.
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The very filing of these affidavits in open court would have caused the
"publication" of "functions, names [and] official titles" of certain CIA
personnel- -the very information which the Congress sought to protect by
section 6 of the Central Intelligence Agency Act of 1949, as amended,
The association of a number of these employees with the Agency was
itself classified, and one of the doctors who was on his way to a very
sensitive overseas assignment had to be recalled. Another doctor was
also slated for such an assignment, which had to be held in abeyance.
The widow's lawyer realized, on seeing the affidavits, that he had no
case and advised her to withdraw the suit. A less ethical lawyer or a
client bound on harrassment of CIA could have forced production of the
affidavits in open court. This is just one of a number of cases which
could be recited wherein the appearance of an employee or the production
of information in judicial procedures resulted or could have resulted in
security disclosures detrimental to the national security.
8. These actual cases indicate that once subject to the
jurisdiction of a court, the Agency cannot guarantee protection of its
sensitive information, particularly as to sources and methods. In a
democratic society there will obviously be vital situations where the
desirability for protecting sensitive intelligence information may, of
necessity, be subordinated to the preservation of justice. On the other
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hand, intelligence sources and methods should not be subjected to com-
promise, by design or otherwise, by a statute which would tend to
encourage employees in sensitive positions to jeopardize the security
system which they are working to protect. In point of fact, our concern
lies not so much with the possibility of revelations by CIA employees but
rather by the use which may be made of this administrative remedy by
those who seek to destroy our national security systems. If such a statute
were applied to CIA, the Agency would be faced with one of two alternatives:
to remain silent in the face of charges and concede the merits, or to contest
the merits and give away the information which the Director is charged
by law to protect.
9. The fact is that although the CIA has some statutory authority
(and a clear statutory responsibility) to protect its secret information,
these mandates are not always enough when the Agency is brought into
court. The obvious question then becomes how much further will the
Agency be either harassed frivolously or sued in earnest and damaged
under the provisions of S. 1035? It is apparent that while the cases to date
show serious compromise of classified information under present protective
statutes, the probable compromise in the future would be substantially
more because of statutory authorizations of suits against the CIA.
10. The American Law Division's report concedes the possibility
of conflict between Section 4 of S. 1035 and the Director's authority to
terminate employees (50 U. S. C. 403(c)). That authority has been
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upheld in a number of cases where the individual has sought to contest
his termination, Kochan v. Dulles, Civ. No. 2728-58, D. C. D. C. (1959),
and Torpats v. McCone, 300 F. 2d 914 (1962), U. S. Court of Appeals for
D. C. Circuit. Particularly in the Torpats case the court refused to allow
on the record information concerning intelligence operations which the
plaintiff knew were classified. Our experience has shown however that
a court proceeding cannot be confined solely to the matter of a single
allegation, but that all sorts of peripheral and background matters are
inevitably brought forward. S. 1035 would virtually force the courts to
explore these areas publicly.
11. Possibly an even more clear-cut conflict involves section 201(c)
of the CIA Retirement Act of 1964 (P. L. 88-643). That provision states
that any determinations made by the Director authorized under the
provisions of the CIA Retirement and Disability Act of 1964 "shall be
deemed to be final and conclusive and not subject to review by any
court. " This provision was included in the law because the CIA retire-
ment system covers those employees engaged in the most sensitive
work of the Agency, primarily overseas activities, and the committees
of the House and the Senate which held hearings on the Act realized
the serious harm that would result from a public airing of any such cases.
12. As a hypothetical case, consider an employee who is mandatorily
placed in a retired status under the CIA Retirement Act by the Director.
Assume further that the employee brings an action in a district court
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claiming that his retirement resulted from an interrogation concerning
misconduct during which he requested and was refused counsel (section 1(k)
of S. 1035). Under the provisions of section 4, the employee would be
authorized to maintain the action, and the court would review in detail
circumstances of the forced retirement. Such a review by the courts
would directly conflict with section 201(c) of the CIA Retirement Act,
and would result in a public airing of sensitive information which that
section was designed to protect. Since S..1035 would be the later-enacted
law, a court might hold that section 4 prevailed over the provisions of
the CIA Retirement Act.
13. The requirement of presence of counsel or other person provided
for in section 1(k) of S. 1035 would impose a particularly difficult dilemma.
In effect, that section provides that before an employee could be subject
to an interrogation which could lead to a disciplinary action, he has the
right of counsel or other person of his choice. This statutory requirement
could be extremely burdensome administratively. Of more importance,
in the case of this Agency where classified information inevitably would
be involved, there would be the requirement of investigation of the counsel
or other person chosen. If for some reason the counsel or other person
were determined to be untrustworthy to receive classified information, the
Agency would be in a serious dilemma under S. 1035. On the one hand, it
has the responsibility to protect intelligence sources and methods, and on
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the other hand there is the requirement in S. 1035 that counsel or other person
be present. In theory then, if the Agency refused to permit the presence
of the person designated by the employee during the interrogation which
involves the classified information, the complaining employee could allege
violation of S. 1035 in deprivation of his rights. This is a serious inf ringement
of the Agency's ability to protect classified information.
14. As indicated above, experience has shown that most every court
action poses serious problems for the Agency. In order that the processes
of law may go forward, there is some dilution of matters that should
remain secret. The very concepts of 5.1035 in granting rights to employees
and applicants to sue and to name individual employees of the Agency as
defendants is at the outset inconsistent with the purposes behind the various
exemptions granted the Agency to maintain secrecy, as well as the responsi-
bility of the Director to protect intelligence sources and methods. These
new rights granted employees of the Agency are furthermore inconsistent
with the judicial concepts of protecting state secrets and the special
nature of employment in secret activities. On balance, we believe that
the desirability of protecting sensitive intelligence information far
outweighs the need for relief of the type provided by S. 1035 to CIA employees
who generally have accepted as a condition of employment the necessity for
protecting that information. For these reasons, we believe that a complete
exemption from this legislation for this Agency is essential.
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privacy invasions, we are not trifling with
the great constitutional truths which but-
tress our society, I believe we are.
regrettably, it would appear that we have
come far from the nature of the truths which
we once thought important; but in the case
i,f the polygraph, we have come not very far
at all from the ancient methods of seeking
the truth. It is not too far from the ancient
trial of ordeal by fire or water to the concept
of the "wiggle seat." Nor is there much dif-
ference between the polygraph and the old
deception best used by the Indians. They
thought that fear inhibited the secretion
of saliva. To test his credibility, an accused
was given rice to chew. If he could spit it out
he was considered innocent; but if it stuck
to bis gums he was judged guilty.
What do polygraph techniques do to the
concepts underlying the Fourth and Fifth
Amendments? To the principles that there
shall be no search and seizure without war-
rant, and that no man should be compelled
to Incriminate himself? Is there anything
more destructive to our system of government
than attempting to seize a man's Innermost
thoughts; compelling him to confess his be-
liefs, his religious practices, his every sin;
requiring hint to barn his soul to a machine
In order to hold a job?
Hardened criminals are safeguarded In this
area of the law, yet an applicant for Federal
employment is not.
In the employment process, however, It Is
to the First Amendment that this twentieth
century witchcraft does the most violence.
That Amendment guarantees a citizen free-
dom from interference with his freedom of
expression in his thoughts and beliefs. And
it includes not only his right to express them
but his right to keep silent about them. This
is a crucial issue in a free society.
To condition a citizen's employment and
his future job prospects on his submission to
the pumping of his mind, his thoughts, and
beliefs about personal matters unrelated to
his duties, is to exercise a form of tyranny
and control over his mind which is alien to a
society of free men, It is to force conformity
of his thought, speech and action to whatever
subjective standards for conduct and thought
night be held by a polygraph operator, or
his company, or an agency official. It is to
weaken the fabric of our entire society.
I submit that the Constitution can and
does protect us from such incursions on our
liberties.
EMPLOYMENT AS A PRIVILEGE
To say that employment is a privilege is
to avoid the Issue. For, as the Supreme Court
has said, it does not matter whether or not
there is a constitutional right to employ-
ment. The means and procedures employed
by government should not be arbitrary,
CONSENT
Nor does It help to reply that a person
"consents" to such an invasion of his liberty.
Where the full force of government is behind
the request, where he knows that great com-
puter and data systems of government will
retain forever his refusal to reply, or his an
ewers to the queries, there is no free consent,
CONFIDENTIALITY OF RECORDS
Proponents argue that the records are con-
fidential. It is no secret that his employment
records, with all of the medical and security
data, follow a man throughout his career.
They are officially transmitted through the
Subterranean passages of our complex bu-
reaucracy.
It was to prevent the practice of such tyr-
annies on Federal employees that I intro-
duced my bill, S. 1036,
S. 1035 is deigned to prohibit unwarranted
govern mental invasions of employee privacy
and is sponsored by 55 Members of Ilia Sen-
ate. I am happy to report that It was ap-
proved by the Senate on September 13 by a
vote of 79 to 4.
Section (f) of S. 1035 makes it unlawful
for any officer of any Executive department
or agency to require or request, or attempt
to require or request, any civilian employee
serving in the department or agency, or any
person applying for employment in the Ex-
ecutive branch of the United States Govern-
ment "to take any polygraph test designed
to elicit from hint information concerning lhid
personal relationship with any person con-
nected with him by blood or marriage, or
concerning his religious beliefs or practices,
or concerning his attitude or conduct with
respect to sexual matters."
This measure is now pending in a Sub-
committee of the House Post Office and Civil
Service Committee under the Chairmanship
of Congressman David Henderson. I am hope-
ful that the Congress will enact it promptly.
It is time we put a rein on the Federal
Government's use of twentieth century
witchcraft to find the truth. It Is time the
Federal Government was told what truths it
should be socking.
MEMORANDA CONCERNING THE EFFECT
S.- 1035 ON THE SDCvRITY AGENCIES
TAE LIBRARY OF CONGRESS,
Washington. D.C., January 29, 1968. '
To: Senate Subcommittee on Constitutional
Rights.
From: American Law Division.
Subject: Effect of S. 1035 on C.I.A. Secrecy.
This is in response to your request for a
consideration of the possible effects of S.
'1035, to protect the privacy of governmental
employees, upon the secrecy of an organiza-
tion like the Central Intelligence Agency.
A number of statutory provisions are de-
signed to allow the C.I.A. to.maintaln almost
absolute secrecy about its operations and
personnel, In 50 U.S.C. ? 403(d) (3), the Di-
rector of C
I
A
is authorized
inter alle
to
.
.
.
,
y
dividual to be tested that such test is re-
protect intelligence sources and methods
from unauthorized disclosure. The Agency quired-to protect the national security.
d E
d
R
ht
i
mployee
s an
ig
n " Boar
provisions of any law requiring the publica-
-
'-Lion or disclosure of the organization, func- to federal district court.
tions, names, official titles, salaries, or num- It appears then that the issue in any
bore of personnel employed by it. The Direc- matter taken to the Board and to court sub-
tor Is authorized, by 50 U.S.C. ? 403(0), in sequently would be whether some prohibi-
his discretion, to terminate the employment tlon of the act had been violated. That is,
someone e hadjudicated
of any officer or employee of the Agency would b the only e whetherrelevant for example, to be
whenever he deems it necessary or advisable , foor example, had
in the interests of the United States. been requested or forced to take a polygraph
Additionally, a series of criminal statutes test in regard to his sexual activities and
prohibit unlawful disclosure of confidential had, perhaps, been discriminated against,
Information respecting the national defense. by being fired, demoted, or, somehow been
18 U.S.C. J? 703, 704, 708, 1005. And, finally, retaliated against. Thus, it is difficult to see
it appears that the C.I.A. requires of most if flow, an issue involving government secrets
not all ,of their employees the execution of could be relevant to any determination the
a secrecy agreement under which the em- Board or court might be called up to make,
ployeo swears to maintain in confidence in- One possibility might arise should the as-
formation gained because of his employment signment of an operative be made to attend
and under which it is specifically recognized some assemblage or to take part In some ac-
that an intentional or negligent violation of tivity be made and refused, for which ro-
the agreement might subject the employee fusal disciplinary action might follow.
to prosecution under at least 18 U.S.C. ?? 793 It could be claimed by the affected em-
and 794. See, Heine v. Raus, 261 F. Supp. 670, ployce that the requirement violated one or
571-572 (D.C.D,Md. 1966). another provision of the act. But it will be
It Is, of course, a rule of statutory can. noted that such assignments would violate
structfon that when two statutes conflict, the act only if not part of an employee's
the one later in date will govern. Therefore, "official duties." Should determination of ri
If any provision of S. 1035, upon enactment, possible violation depend upon Whether or
conflicts with any provision of the statutes not the assignment involved "off"icial duties,"
listed above, S, 1035 would prevail. Would the precedents scam clear that to avoid dis-
there be any conflict? closure .of confidential or secret Information
In order to protect the privacy of govern- a court will accept the certification by the
ment employees, S. 1035 prohibits those in Agency head to that effect, Heine V. Rests,
This bill is premised on the belief that just duthority from engaging in certain activi-
because he goes to work for government, tiro ties in regard to government employees. Tito
individual does not surrender his basic rights prohibited a.ctivil.ics are (1) ? requiring the
and liberties as a citizen. Nor does he sur- , disclosure of one's race, religion, or national
render his right to a proper respect by his origin or that of his forebears, (2) indi-
government for his privacy and other rights. eating that the failure of one to attend any
assemblage for the purpose of acllvsing, in-
etruct.ing, or indoctrinating in the perforin-
ance of or in regard to anything other than
official duties will be noticed or acted upon,
(3) requiring one to participate in activi-
ties or undertaking not relating to of icial
duties, (4) requiring one to report on his
activities or undertakings not related to his
official duties, (5) 'requiring one to submit
to any interrogation or examination designed
to elicit Information concerning such per-
sonal matters as relationships to other peo-
ple, religious belicts ' or practices in sexual
matters, (6) requiring the taking of a poly-
graph test clcslgneci to elicit such pcr~,olnal
information,.(7) requiring one to participato
in any why in the support of any person for
political office of any political party, (8) re-
quiring one to invest one's money In bonds
or other obligations, (9) - requiring one to
disclose personal finances except in certain
conflict of interest situations, (10) requiring
or requesting one to participate in any in-
vestigation which could have disciplinary
consequences without the presence of coun-
sel or other persons of his choice, (11) and
discharging , or otherwise discriminating
against one because of a refusal to comply
with a request or demand made illegal by
the bill. -
..Certain provisions:of the bill recognize the
existence of security interests necessitating
deviation from the provisions of the bill.
For example, a proviso permits inquiry into
the national origin 'of' an employee when
deemed necessary or advisable to determine
suitability for assignment to activities or
undertaking related to the national secu-
rity of the United States or to activities or
'undertakings of any nature outside the
United States.
; And Section 6 of, the bill permits the '
requiring of polygraphing, personality test-
ing or financial inquiry to elicit otherwise -
impermissible, personal information of any
employee of the, C.I.A., the -National Secu-
rity Agency or the F.B.I. If the Director of the
appropriate agency, or his designee, makes a
supra 577-78; and, see United States V.
Reynolds, 345 U.S. 1 (1953).
Thus, it would seem that Issues Involving
governmental secrecy would not be relevant
to issues before the Board and to a subse-
quent court. Me' issues would turn re-doer
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