Application of State Law to CIA's Proposed Administration of Polygraph Examinations to Its Contractors' Employees (II)

December 18, 1978
78-98 MEMORANDUM OPINION FOR THE GENERAL
COUNSEL, CENTRAL INTELLIGENCE AGENCY
Supremacy Clause (Art. VI, cl. 2)— Central
Intelligence Agency— Polygraph Examinations of
Employee of CIA Contracts
Your Office has requested our views on State law that may bear on your
Agency’s administration o f polygraph examinations o f certain key employees
of United States corporations having classified contracts with the Central
Intelligence Agency (CIA).
I.
O ur discussion begins with the question whether the CIA is authorized as a
matter o f Federal law to adm inister polygraph examinations in order to protect
adequately classified information from public disclosure.
Several provisions o f law, o f both general and particular applicability,
support the C IA ’s authority. As a general matter, Executive Order No. 12065,
43 F.R. 28949 (June 28, 1978), reprinted in 50 U .S.C . § 401 Note (Supp. II
1978), requires Federal agencies to ensure the security of classified informa­
tion. The pertinent provisions of that order provide:
No person may be given access to classified information unless
that person has been determ ined to be trustworthy and unless access
is necessary for the performance of official duties.
(§ 4 -101')
Controls shall be established by each agency to ensure that
classified information is used, processed, stored, reproduced, and
transmitted only under conditions that will provide adequate protec­
tion and prevent access by unauthorized persons.
(§ 4-103)
'Inform ation Security Oversight O ffice D irective No. I (approved Septem ber 29,1978) issued
pursuant to Executive O rder No. 12065. §§ 5-202(d), 6-204. states that:
A person is eligible for access to classified inform ation only after a show ing o f trustworthiness
as determ ined by agency heads based upon appropriate investigations in accordance with
applicable standards and criteria. (§ IV. B. 2.)
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Agency heads listed in Section 1-201 may create special access
programs to control access, distribution, and protection of particu­
larly sensitive information classified pursuant to this Order or prior
Orders.
(§ 4-201)
The order also mandates that “ classified information disseminated outside the
Executive branch shall be given protection equivalent to that afforded within
the Executive branch.” § 4-105. This provision, in conjunction with those
above, appears to require security precautions in instances where classified
information is to be given to the employees of CIA contractors.
Several other provisions o f law are relevant. First, the Director of the CIA is
made responsible by statute “ for protecting intelligence sources and m ethods.”
50 U .S.C . §§ 403(d)(3), 403g (1976). Second, Executive Order No. 12036,43
F.R. 3674 (Jan. 26, 1978), reprinted in 50 U .S.C . § 401 Note (Supp. II 1978),
requires the CIA to “ protect the security of its installations, activities,
information and personnel by appropriate means, including such investigations
of applicants, employees, contractors, and other persons with similar associations
with the CIA as are necessary.” § 1-811. This provision as well as others in the
order (see §§ 2-206(d), 2-208(c)), explicitly allows for investigations of those
contractors handling sensitive information.
It seems evident that, on the basis of the foregoing authorities, the CIA is
authorized and required to conduct investigations of its contractors’ employees
in order to ensure the security of classified information. In light of this duty and
on the basis of information supplied by your Agency, the use of polygraph
examinations is an authorized Federal function. Although there is no Federal
law explicitly authorizing such a process, that lack cannot be deemed
controlling. See, U nited S tates v. M acdan iel, 32 U.S. (7 Pet.) 1, 13-14 (1833).
Where a statute imposes a duty, it authorizes by implication all reasonable and
necessary means to effectuate the duty. U nited States v. Jones, 204 F. (2d)
745, 754 (7th Cir. 1953); U nited States v. K elly, 55 F. (2d) 67 (2d Cir. 1932);
2A Sutherland, Statutes and Statutory Construction, § 55.04, at 384 (4th ed.
1973).2 The use o f polygraph tests, we are told, provides a means whereby
information submitted by employees can be evaluated and verified with a view
toward determining whether employees may be entrusted with classified
information. We are also informed that this technique elicits information that
could not otherwise be elicited, and, therefore, tightens security in a way which
could not otherwise be done. In the view of the CIA, these factors make
polygraph examinations an “ extraordinarily useful device.” On this basis, a
polygraph examination can be seen as a reasonable and necessary means to the
effectuation of duties imposed on the CIA under Federal law and, therefore,
under the authorities cited above, its use is authorized.3
2The same general rule is set forth in Executive O rder No. 12036, S 1-811, which authorizes
"appropriate m eans” to protect security.
3W e understand that those to be tested are know ingly perform ing work for the CIA , are inform ed
of the C IA ’s involvem ent in the testing, and consent to it. That being the case, we do not believe
that any problem s arise under the prohibition on the C IA 's perform ance of internal security or law
enforcem ent functions, see 50 U .S .C . § 403(d)(3) (1976), even as that prohibition was interpreted
(Continued)
427
We believe, however, that a caveat is in order. Executive Order No. 12036,
§ 1-811, allows for “ such investigations o f . . . contractors . . . as are n eces­
sa ry . ” This requirem ent might be read to preclude the administration of
polygraph tests on an undifferentiated basis to all employees of a contractor.
Rather, some evaluation and determ ination as to the need with respect to a
particular contractor’s em ployees, or to certain classes o f such employees,
would appear to be more consonant with this provision. Since polygraph testing
is apparently now being adm inistered only to “ key em ployees,” who either
have access to a great deal o f classified information or have an unusually
comprehensive knowledge o f CIA projects, it appears that the need is taken
into account.
II.
Massachusetts has enacted the following statute:
Any em ployer who subjects any person employed by him, or any
person applying for em ploym ent, to a lie detector test, or causes,
directly or indirectly, any such employee or applicant to take a lie
detector test, shall be punished by a fine o f not more than two
hundred dollars. This section shall not apply to lie detector tests
administered by law enforcem ent agencies in the performance of their
official duties.
[Chapter 149, § 19B, M ass. Gen. Law]
One question is whether this statute may legitimately be applied to either the
CIA itself or its contractor in M assachusetts. Your office believes that, by its
own terms, the statute does not encom pass CIA polygraph examinations. The
interpretation o f the statute is a function which must be performed by the
appropriate State officials, although it is proper for you to urge on them your
interpretation. We address here only the question o f the validity o f the statute,
assuming that it does impinge on the perform ance of a Federal function. For the
reasons that follow, we believe that M assachusetts may not apply the statute to
either the CIA or its contractors.
A.
It is a fundamental principle o f Federal constitutional law that, by reason of
the Supremacy Clause, Article VI, cl. 2, the legitimate activities of the Federal
Government may not be impeded by a State. M ayo v. U nited States, 319 U.S.
441, 445 (1943). We thus do not believe that M assachusetts can prohibit the
CIA from conducting polygraph exam inations the CIA is authorized to conduct
under Federal law.
Concededly, the situation here is different from the usual Supremacy Clause
question. In the ordinary case, courts are called upon to review State laws that
conflict with a Federal statute or regulation. Although the D irector’s authoriza­
tion o f polygraph exam inations does not, in term s, proceed from statute or
(C ontinued)
in Weissman v. C M , 565 F. (2d) 692 (D .C . C ir. 1977). N or are we aware o f any other general
prohibition, in either a statute or Executive order, on the use o f polygraph testing by intelligence
agencies.
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regulation, we do not believe that this is of any real consequence. It is not the
abstract inconsistency between the express terms of State and Federal law
which is the concern underlying the Supremacy Clause. C f , L os A lam os
School B oard v. W ugalter, 557 F. (2d) 709, 714 ( 10th Cir. 1977) (potential or
peripheral conflicts between State and Federal law will not render a State law
invalid). Rather, the evil that the clause addresses is obstruction to the
accomplishment and execution of lawful Federal purposes and objectives.
Hines v. D avidow itz, 312 U.S. 52, 67 (1941). This may occur not only when
State law conflicts with the express terms o f the Federal law, but also when
State law impedes the performance of activities conducted under the authority
of Federal law. See, U nited States v. P ublic Service Com m ission, 422 F. Supp.
676 (D. Md. 1976) (three-judge court) (authority of the General Services
Administration to conduct cross-examinations in State utility rate proceedings
beyond time limit imposed by the State); In Re N ew York State Sales Tax
R ecords, 382 F. Supp. 1205 (W .D . N .Y . 1974) (exercise of grand jury powers
prevails over state nondisclosure law); see also, U nited States v. C ity o f
Chester, 144 F. (2d) 415, 420 (3rd Cir. 1944). Since we have concluded that
the administration of polygraph examinations is an activity authorized by
Federal law, we do not believe that it may be impeded by State law.
We recognize that, in certain circum stances, State law applies to, and
controls, the exercise of various Federal functions. [This obtains, however,
only where the application of State law would not undermine those functions.]
M ayo v. U nited States, supra, at 446. We are informed that the application of
the statute to the CIA would result in its inability to perform satisfactory
security checks, and this in turn would substantially impair its procurement
operations. On this basis, we do not believe that the above rationale justifies
application of the Massachusetts statute.
The Supremacy Clause question often becomes one o f assessing congres­
sional intent, i.e.., whether in the statutes under which the Executive branch is
implementing some regulation or program, Congress intended Federal action to
override inconsistent State laws. In some instances an examination of the
legislative history and the structure o f a statute reveals that Congress did not
intend to interfere with State regulation. W here, however, there is a clear
conflict between the implementation of a legitimate Federal function and a
State law, and there is no evidence that Congress contemplated that the Federal
interest would be subordinated, the State enactment must yield. We believe that
conflict to exist here.
III.
The question remains whether, even though the Massachusetts statute may
not be applied to the CIA itself, it is applicable to the C IA ’s contractor. We
reiterate that we express no views as to the interpretation of the statute insofar
as the C IA ’s contractor is generally concerned. Rather, we discuss only
whether the statute may legitimately be applied to the contractor in connection
with its work for the CIA.
This question does not admit of an easy answer. It is clear that the mere fact
that a particular entity is performing work for the Federal Government does not
exempt it altogether from State regulation. R ailw ay M ail A ssociation v. C orsi,
326 U.S. 88, 95-96 (1945) (applying State nondiscrimination law to postal
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union); Stew art an d C o. v. Sandrakula, 309 U.S. 94 (1940) (State safety
requirement applicable to Federal contractor); P ublic Housing Adm inistration
v. B ristol Township, 146 F. Supp. 859 (E.D . Pa. 1956) (Federal contractor
required to adhere to building code requirements). On the other hand, it also
seems clear that a com pany’s performance o f work for the Federal Government
may at times exempt it from State or local regulation. L eslie M iller, Inc. v.
Arkansas, 352 U.S. 187, 190 (1956); P acific C oast D airy > v. D epartm ent o f
Agriculture o f California, 318 U .S. 285 (1943); C ontractors Association o f
Eastern Pennsylvania v. S ecretary o f L abor, 442 F. (2d) 159, 166 (3rd Cir.
1971).
The approach the courts take in assessing the application of State statutes
imposing burdens on Federal contractors is much the same as their approach
with regard to statutes imposing burdens on the Federal Government itself.
That is, the courts look to whether the statute would frustrate the operation of
Federal functions. R ailw ay M ai! Association v. C orsi, supra, at 95-96; Leslie
M iller, Inc. v. A rkansas, supra, at 190; S tew ard and C o. v. Sandrakula. supra,
at 103-04. Under this standard, the application of the Massachusetts law to the
contractor would frustrate Federal functions to the same extent as if the law
were to apply to the CIA itself. According to the CIA, such an application
would inevitably result in the contractor’s refusal to allow his employees to take
part in the polygraph examination program, which, in turn, would result in less
than adequate security and ultimately would jeopardize CIA procurement. In
our opinion, the decisions under the Supremacy Clause would not allow State
law to cause this sort of disruption o f a Federal program, even if the State law is
being applied only to a contractor.
IV.
For the foregoing reasons, we do not believe that the Massachusetts law in
question may legitimately be applied to either the CIA or its contractors so as to
preclude authorized polygraph exam inations. However, a word o f caution is
appropriate. The application of State law to Federal contractors is generally
dependent on the particular facts and circumstances; see, M ayo v. U nited
States, 319 U .S ., at 447-448; L os A lam os School B oard v. Wugalter, 557 F.
(2d), at 712, 714. This is a question which necessarily entails a judgment predi­
cated on any number of different factors. M oreover, as the considerable volume
of case law in the State-Federal conflict area demonstrates, disputes of this type
often result in litigation and resolution pursuant to standards that are often
difficult to apply with precision. It is, therefore, an area in which prelitigation
predictions should be cautious.
Larry A. Ham m ond
D eputy A ssistan t A ttorney G eneral
Office o f L egal Counsel
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