                                                                      December 18, 1978

78-66 MEMORANDUM OPINION FOR THE GENERAL
      COUNSEL, CENTRAL INTELLIGENCE AGENCY
      Central Intelligence Agency—Supremacy Clause
      (Constitution, Article VI, Clause 2)—Possible State-
      Federal Law Conflict Involving Classified
      Information—CIA’s Proposed Administration of
      Polygraph Examinations of Its Contractors’
      Employees

  This responds to a request by your Office for our views on State laws bearing
on the Central Intelligence Agency’s (CIA) administration of polygraph
examinations of certain employees of those U.S. corporations which have
classified contracts with the CIA.
                                       1.
   Any discussion of the question whether State law may restrict the perfor­
mance of Federal functions must first address the issue whether those Federal
functions are authorized. In our view, the CIA has the authority to conduct the
polygraph examinations involved in order to protect the confidentiality of
classified information.
   Several provisions of law, both of general and particular applicability,
support the CIA’s authority in this situation. As a general matter, Executive
Order No. 12065, 43 F. R. 28949 (June 23, 1978) requires Federal agencies to
insure the security of classified information. The pertinent provisions of that
order provide:
         No person may be given access to classified information unless
     that person has been determined to be trustworthy and unless access
     is necessary for the performance of official duties. [Section 4-1011]
  'Information Security Oversight Office Directive No. I, approved September 29, 1978, issued
pursuant to the provisions of Executive Order No. 12065, further states that:
     A person is eligible for access to classified information only after showing of
     trustworthiness as determined by agency heads based upon appropriate investigations in
     accordance with applicable standards and criteria. [Section IV. B. 2]

                                            293
          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. [Section 4-103]
          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, [Section 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 the other
 cited above, would appear to require security precautions in instances where
 classified information is to be given to the employees of CIA contractors.
    Several provisions of law focus on the CIA’s responsibilities to protect the
 confidentiality of sensitive information. First, the Director of the CIA is made
 responsible by statute “ for protecting intelligence sources and methods.”
 Second, Executive Order No. 12036, 43 F. R. 3674 (Jan. 24, 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(e), explicitly allow the investigation of contrac­
 tors handling sensitive information.
    It seems evident that, on the basis of the foregoing authorities, the CIA is
 authorized and required to conduct investigation of its contractors’ employees
 to insure the security of sensitive information. Based on the information
 supplied by your Agency, we believe that the use of polygraph examinations is
 also an authorized function. While no Federal law explicitly authorizes this
 approach, the lack of such a provision cannot be deemed controlling. United
States v. Macdaniel, 7 Pet. 1, 13-14 (1833). Rather, in this case the following
general rule should apply: when a statute imposes a duty, it authorizes by
implication all reasonable and necessary means to effectuate the duty. United
States v. Jones, 204 F. (2d) 745, 754 (7th Cir. 1953); United States v. Kelly, 55
F. (2d) 67 (2d Cir. 1932); 2A Sutherland, Statutes and Statutory Construction,
§ 55.04 (4th ed. 1973) at 384.2 The use of polygraph tests, as we are informed,
provided a means for determining whether employees may be entrusted with
sensitive information. We are also informed that this technique elicits informa­
tion that could not otherwise be obtained so that security is enhanced in a
manner that could not otherwise be accomplished, making polygraph examina­
tions an “ extraordinarily useful device.” Polygraph examinations thus may be
seen as reasonable and necessary means to the effectuation of duties imposed

   2The same general rule is set forth in Executive Order No. 12036, § 1-811, which authorizes
“ appropriate m eans” to protect security.

                                            294
on the CIA under Federal law, and therefore the use of such examinations is
authorized under Federal law.3
   We believe, however, that a caveat is in order. Executive Order No. 12036,
§ 1-811, allows for “ such investigations of . . . contractors . . . as are neces­
sary.” The requirement of necessity may be read as precluding the administra­
tion of polygraph tests on an undifferentiated basis to all employees of a
contractor. However, an evaluation and determination of the need for the
administration of such tests to a particular contractor’s employees, or to certain
classes of such employees, would appear to be more consonant with the
provisions of the order. Since polygraph testing is apparently now being
administered only to employees who either have access to or are being con­
sidered for access to SCI information, it appears that the need for such a proce­
dure is being weighed and determined.

                                        II.
   Massachusetts has enacted the following statute:
         Any employer who subjects any person employed by him, or any
      person applying for employment, including any person applying for
      employment as a police officer, to a lie detector test, or requests,
      directly or indirectly, any such employee or applicant to take a lie
      detector test, shall be punished by a fine of not more than two
      hundred dollars. This section shall not apply to lie detector tests
      administered by law enforcement agencies as may be otherwise
      permitted in criminal investigations. [Chapter 149 sec. 19B, Mass.
      Gen. Law]
One question raised by your office is whether the above statute may be
legitimately applied to either the CIA or its Massachusetts contractors.
   Your office believes that, by its own terms, the statute would not encompass
the polygraph examinations the CIA wishes to conduct. The construction of the
Massachusetts statute is a function to be performed by the appropriate State
officials, although it is proper for you to urge on them your construction. We
address here only the question of the validity of the statute, assuming that it
does impinge on the performance of a Federal function. For the following
reasons we believe that Massachussetts may not legally apply the statute to
either the CIA or its contractors.
                                   A.
  We first discuss the application of the statute to CIA itself. It is a
fundamental principle of Federal constitutional law that, by reason of the
   ’We understand that employees who are to be tested know that they are performing work for
CIA. are informed of CIA’s involvement in the testing, and consent to the testing. We do not
believe that any problem arises from the prohibition on CIA’s performance of internal security or
law enforcement functions, see 50 U.S.C. § 403(d)(3), even as that prohibition was interpreted in
Weissman v. CIA, 565 F. (2d) 692 (D.C. Cir. 1977). Nor are we aware of any other general
prohibition on the use of polygraph testing by intelligence agencies.
                                             295
 Supremacy Clause, Article VI, cl. 2, the lawful activities of the Federal
 Government may not be regulated by any State. Mayo v. United States, 319
 U.S. 441, 445 (1943).
    Concededly, the situation here differs from the usual Supremacy Clause
question. In the ordinary case, courts are called on to review State laws that
conflict with a Federal statute or regulation. Although the Director’s authoriza­
 tion of polygraph examinations does not so clearly proceed from statute or
 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. Cf., Los Alamos
School Board v. Wugalter, 557 F. (2d) 709, 714 (10th Cir. 1977) (potential or
peripheral conflicts between State and Federal law will not render the State law
 invalid). Rather, the evil that the clause addresses is the obstruction to the
accomplishment and execution of Federal purposes and objectives. Hines v.
Davidowitz, 312 U.S. 52, 67 (1941). This may occur not only when State law
conflicts with the express terms df Federal law, but also when State law
impedes the performance of activities conducted under the authority of Federal
law. See, United States v. Public Service Commission, 422 F. Supp. 676 (D.
Md. 1976) (three-judge court) (upholding General Service Administration
authority to conduct cross-examinations in utility rate proceedings beyond time
limit imposed by State); In Re New York State Sales Tax Records, 382 F. Supp.
 1205 (W.D. N.Y. 1974) (exercise of grand jury powers prevails over State
 nondisclosure law). See also. United States v. City o f Chester, 144 F. (2d) 415,
420 (3d Cir. 1944). Since the administration of polygraph examinations is an
activity authorized under Federal law, it may not be impeded by State law.
    We recognize that, in certain circumstances, State law has been deemed to
apply to, and control, the exercise of various Federal functions. This result
obtains, however, only where the application of State law would not undermine
Federal purposes or functions. See, Mayo v. United States, supra, at 446;
Federal National Mortgage Association v. Lefkowitz, 390 F. Supp. 1364, 1368
(S.D. N.Y. 1975). See also, City of Norfolk v. McFarland, 145 F. Supp. 258,
260 (E.D. Va. 1956). We are informed by the CIA that the application of the
statute to it would result in its inability to perform satisfactory security checks,
and this in turn would substantially impair its procurement operations. On this
basis, the rationale adopted in the decisions cited above does not justify the
application of the Massachusetts statute.
    The Supremacy Clause question often requires the assessment of congres­
sional intent, i.e., whether Congress, in promulgating the statutes under which
the Executive branch implements a regulation, intended Federal action to
override inconsistent State laws. In some cases an examination of the
legislative history and the structure of a statute reveals that Congress did not
intend to interfere with State regulation. Where, however, there is a clear
conflict between the implementation and a State law, and there is no evidence
that Congress contemplated the Federal interest to be subordinated, the State
enactment must yield. We believe such conflict to exist in this instance, and
                                       296
since we know of no congressional intent that the State’s interest should
prevail, the State law must yield.
                                        B.
   The remaining question is whether, even though the Massachusetts statute
may not be validly applied to CIA itself, it may, nevertheless, be enforced
against CIA’s contractor. We reiterate here that we express no views on the
interpretation of the statute insofar as CIA’s contractor is concerned. Rather,
we address only the question whether the statute may legitimately be applied to
the contractor.
   Whether State law may be applied to those under contract with the Federal
Government is difficult to answer authoritatively. It is clear that the mere fact
that a particular entity is performing work for the Federal Government does not
entirely exempt it from State regulation. See, Railway Mail Association v.
Corsi, 326 U.S. 88, 95-96 (1945) (applying State nondiscrimination law to
postal union); Stewart and Co. v. Sadrakula, 309 U.S. 94 (1940) (holding a
State safety requirement applicable to Federal contractor); Public Housing
Administration v. Bristol 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 performance of work for the Federal
Government may at times exempt it from State or local regulation. See, Leslie
Miller, Inc. v. Arkansas, 352 U.S. 187, 190 (1956); Pacific Coast Dairy v.
Department of Agriculture o f California, 318 U.S. 285 (1943); Contractors
Association of Eastern Pennyslvania v. Secretary of Labor, 442 F. (2d) 159,
 166 (3d Cir. 1971).
   The courts approach the assessment of the validity of State statutes imposing
burdens on Federal contractors in much the same way as they approach the
statutes imposing burdens on the Federal Government itself. That is, the courts
look to whether the State statutes would frustrate the operation of Federal
functions. See, Railway Mail Association v. Corsi, supra, at 95-96; Leslie
Miller, Inc. v. Arkansas, supra, at 190; Stewart and Co. v. Sadrakula, supra,
at 103-04; Associated General Contractors of Massachusetts, Inc. v. Altshuler,
490 F. (2d) 9, 15 (1st Cir. 1973); City of New York v. Diamond, 379 F. Supp.
503, 520 (E.D. N.Y. 1974). Under this standard, it is our opinion that the
application of the Massachusetts law to the contractor in this instance would
frustrate Federal functions to the same extent as though 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. The
decisions under the Supremacy Clause do not allow State law to cause this sort
of disruption of Federal programs, even if the law is applied only to a contractor
and not to the Federal Government itself.


                                      297
                                  II. Conclusion
   For the foregoing reasons, we conclude that the Massachusetts law in
question may not be legitimately applied to either CIA or its contractors so as to
preclude authorized polygraph examinations. However, a word of caution is
appropriate. The application of State law to Federal contractors is generally
dependent on the facts and circumstances of a particular setting, see, Mayo v.
United States, 319 U.S. at 447-48, Los Alamos SchoolBd. v. Wugalter, 557 F.
(2d) at 712, 714, and is thus a question which necessarily entails a judgment
predicated on a number of different factors. Moreover, as the considerable
volume of case law in the State-Federal law 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 of success must necessarily be cautious.
                                               Larry A. H am m ond
                                        Deputy Assistant Attorney General
                                                      Office of Legal Counsel




                                       298
