CIA Investigations of United States Persons in the United States ( 1978 )

March 8, 1978
78-15 MEMORANDUM OPINION FOR THE
GENERAL COUNSEL, CENTRAL
INTELLIGENCE AGENCY
Central Intelligence Agency— Investigative
Authority— United States Citizens— Weissman
v. CIA, (565 F. (2d) 692)
This responds to your request for our views on the Central Intelligence
Agency’s (CIA) proposed procedures regarding its investigations of United
States persons in the United States. This informal discussion does not represent
our final conclusions on this m atter, but is meant to serve as a basis for future
discussion. With the signing o f Executive O rder No. 12036, many of the issues
touched upon by these procedures will, as you know, become the subject over
the next few weeks and months of procedures promulgated under §§ 2-206,
2-207, and 2-208 o f that o rd e r.1 The questions to be considered in that process
are among the most difficult arising under the order, and it is not our intention
here to foreclose deliberation on any of those matters, but instead to give you
the benefit of our preliminary thinking. On this basis, we believe the following
issues raise problems in light o f Weissman v. CM , 565 F. (2d) 692 (D.C. Cir.
1977).
I. Delineation o f Individuals Subject to Investigation
In our view, the decision in Weissman did not wholly preclude investigation
by the CIA o f those Untied States persons who have a “ connection” with the
agency. Several of the categories of individuals included in paragraph [1] of
your proposed procedures will have an obvious connection with the CIA, and
we perceive few problems with the propriety of investigations in these cases.
For exam ple, employees o f the agency, those who are detailed to the agency,
those who apply for employment with the agency, or those who expressly
'E x e c u tiv e O rd e r N o . 120 3 6 , e n title d United States Intelligence Activities, w as issued b y P resi­
d e n t C a rte r o n J a n u a ry 2 4 , 1978. See 14 Weekly Compilation o f Presidential Documents 194
(Ja n u ary 3 0 , 1978).
62
consent to an investigation (including employees of contractors) would meet
this criterion rather easily.
However, the “ connection” of other categories of personnel listed in
paragraph 11J with the CIA is not so clear. Our principal concern is with those
individuals who do not know that they are subject to a CIA investigation and
who have no reason to believe that they may be investigated.In particular, this
would refer to employees (or applicants for employment) o f proprietaries and
instrumentalities who are unaware of their em ployer’s connections, including
contractors’ employees and others who have no reason to believe that the CIA
may investigate them. Because these individuals have no such knowledge, their
“ connection” with the CIA must rest solely on the fact that they have become
unwittingly involved in a situation where the CIA considers it necessary to
subject them to some form of investigation. We believe this raises two different
sorts of problems under Weissman. First, while we do not believe that the court
made an individual’s awareness of an investigation an “ invariable prerequi­
site” to an inquiry by the CIA, the court was clearly troubled by an
investigation of an American citizen “ without his knowledge” or “ security
investigations o f unwitting American citizens.” 565 F. (2d) at 695, 696. In our
view, this concern of the court may not legitimately be entirely ignored.
Second, since the individuals here cannot be taken to have even implicitly
consented to a background investigation, the requisite “ connection” in such
cases becomes more tenuous than where they were aware of, and consented to,
such investigation.
But we do not believe that these problems will preclude investigations of
such personnel. Rather, we wonder whether an approach along the lines
suggested in our previous opinion on this matter would prove administratively
feasible— i.e., gearing the extensiveness and intrusiveness of the contemplated
investigation to the degree that an individual has a “ connection” with the CIA.
More specifically, in cases in which an individual’s connection is limited, the
CIA might promulgate more restrictive procedures than are applicable to those
individuals that the CIA directly employs. The restrictions contemplated
would pertain to approval authority, duration of investigation, methods of
investigation, disposition of records, etc.
II. Purposes of Investigation
At present the proposed procedures do not state the purposes for which an
investigation may be conducted. While we have no substantial objection to this
open-ended approach with respect to Agency employees and others close to the
Agency (provided that the purposes are lawful), we are troubled by its
application to those who have less of a connection. With respect to such
individuals, if the CIA is to justify an investigation by reference to some limited
“ connection,” we believe that the regulations should clearly specify that the
investigation will not go beyond whatever is required by reason of that
connection. Otherwise, it might be claimed that the CIA is using a rather
tenuous connection to justify an investigation serving other purposes. Such a
departure from the investigation’s underlying justification may be an abuse of
63
that aspect of Weissman allowing an investigation predicated upon a connec­
tion.
III. Method of Investigation
The proposed procedures do not now specify which methods of investigation
may be used, and we think that it is necessary in light of the order to delineate
explicitly what methods will be used. Perhaps more importantly, paragraph [3]
implies that physical surveillance may be used in some instances. While the
order itself places limits on physical surveillance, additional restraints may be
necessary to fulfill the Attorney G eneral’s responsibilities under § 3.305 of the
order. Weissman suggests such limitations. For instance, the order permits
physical surveillance of present employees o f CIA contractors. If these in­
dividuals were unaware o f the possibility of a CIA inquiry into their lives, we
question whether their “ connection” with the CIA would suffice to justify the
intrusiveness of a physical surveillance.2
IV. Paragraph [2]
The exception contained in paragraph [2] may be too broadly written. The
provisions o f paragraph [2A] appear to allow exactly the sort of investigation
that occurred in Weissman, except that it would be limited in duration and
subject to record disposal requirements. The provisions of paragraph [2B]
would allow for an exception in all other areas, and hence provide for a way of
avoiding the limitations of the proposed procedures entirely. There is no
provision that either dictates the conditions under which this may occur or that
limits the use of this broad exception. While a member of your staff has
suggested that this provision could be modified to apply only to certain sorts of
personnel, the open-ended nature of this approach would still trouble us. Its
application to those with only tenuous connections with the CIA may, for the
reasons discussed above, create problems under Weissman.
V. Coordination With H.R. 7-lc(l)(g)
We suggest that more consideration be given as to how the proposed
procedures are to fit in with H .R. 7 -lc (l)(g ). As the situation presently stands,
the CIA will have two different sets of procedures dealing with the problems
raised in Weissman. In our view, these two sets o f procedures are somewhat
inconsistent. For example, several provisions in the current regulations would
appear to allow for investigations beyond those contemplated in your proposed
procedures. See, e.g ., H.R. 7 -lc(l)(g )(4 ) and (6). In order to prevent possible
conflicts or confusion, it may be advisable to promulgate one set of guidelines
to cover this entire area. Presumably, this will be done in formulating
procedures under the order.
2T h e sp ecial c o n c e rn a b o u t p h y sic a l su rv e illa n c e is o n e th a t w as su g g este d b y the Weissman
co u rt, as w e p o in te d o u t in o u r e a rlie r m e m o ra n d u m . See 5 6 5 F . (2 d ) at 6 95 n. 8.
64
VI. Record Retention
Paragraph [2A] states that records o f those investigated but not contacted will
be disposed of in accordance with General Records Schedules. Because we are
unfamiliar with these schedules, we cannot now comment on the efficacy of
this provision. We assume, however, that this question and others will be
included in the preparation of procedures under the order and, in that context,
we would be pleased to provide whatever additional assistance we can.
Larry A. H am m ond
D eputy Assistant Attorney General
Office o f Legal Counsel
65