                                                           December 28, 1979


79-91     MEMORANDUM OPINION FOR THE
          GENERAL COUNSEL, CENTRAL
          INTELLIGENCE AGENCY

          Polygraph Tests—Central Intelligence Agency—
          Industrial Polygraph Program—
          Constitution—Supremacy Clause (Article VI,
          Clause 2)


    A member o f your staff has asked us for additional assistance with
respect to the Central Intelligence Agency’s (CIA ’s) Industrial Polygraph
Program. Implementation o f this program in Massachusetts has been
delayed because o f potential conflict with a Massachusetts statute penaliz­
ing an employer who requires employees to take polygraph tests. Mass.
Gen. Laws, ch. 149, § 1913. In response to an earlier request, we presented
o u r view, in a m em orandum dated December 18, 1978, that a State law
prohibiting the adm inistration o f polygraph tests to employees may not
legitimately be applied to either the CIA o r its contractors in a m anner that
precludes necessary security precautions. We reasoned that the Supremacy
Clause would not allow a State law to disrupt Federal programs, even if
the State law is applied only to a contractor and not to the Federal Govern­
ment itself. We cautioned, however, that the validity o f application o f
State law to Federal contractors is generally dependent on the facts and
circumstances o f a particular setting and that prelitigation predictions o f
success must be cautious.
   By letter dated December 20, 1978, we expanded on these views. We
repeated that the adm inistration o f polygraph tests to contractor
employees who have access to, or are being considered for access to, sen­
sitive com partm ented inform ation would meet the requirements of
§ 1-811 o f Executive O rder No. 12036, because, in the considered judg­
ment o f CIA officials, the tests are necessary to maintain appropriate
standards o f security. We did not suggest that administration o f polygraph
tests on a broader basis would be prohibited, but emphasized that the

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limiting language o f § 1—811 and the potential conflict with State law re­
quired that any such program not sweep more broadly than is deemed nec­
essary by knowledgeable personnel in your agency.
   We are now informed that the CIA wishes to proceed with the program
in Massachusetts. At our request, your staff has provided further explana­
tion o f the CIA ’s need for the Industrial Polygraph Program . The ex­
planation can be summarized as follows:
   After the discovery o f leaks o f classified docum ents to foreign govern­
ments by a contractor’s employee, the CIA Office o f Security examined
security standards governing access to sensitive com partm ented inform a­
tion and determined that the standards were insufficient to protect such in­
formation. Although a contractor’s personnel often have access to infor­
mation not revealed even to CIA staff officers, the industry personnel are
not subjected to the rigorous investigation required for staff positions.
The Office o f Security concluded that the personal history statem ent,
background investigation, and personal interview were insufficient to
identify at least three types o f persons: (1) persons with vulnerabilities
making them particularly susceptible to recruitment by hostile powers,
(2) persons who have already been recruited by such powers but whose
personal history statements are otherwise correct, and (3) persons who
have developed false identities. Based on substantial experience with
polygraphs, the Office o f Security determined that the polygraph device
would be an invaluable tool for improving security determinations. A fter
successful completion o f a pilot program, the Director o f Central In­
telligence ordered institution o f the Industrial Polygraph Program.
   The polygraph is not used as a substitute for less intrusive investigative
measures. Instead, we have been informed that it is intended to enhance,
upgrade, and extend those measures, and is, for these reasons, deemed a
necessary adjunct. We have also been told that the examination is n ar­
rowed to the extent necessary to protect SCI inform ation. To ensure that
the tests will not be applied to employees indiscriminately, the CIA has
identified the categories o f persons who will be required to undergo a poly­
graph test.
   As we set forth in our previous letters to you, courts reviewing State
regulation o f Federal contractors appear to apply the same standard as is
applied to regulation o f the Federal Government itself, that is, whether the
State statute would defeat a legitimate Federal purpose or frustrate a
Federal policy or function. See, United States v. Georgia Public Service
Com m ’n, 371 U.S. 285, 292-93 (1963); Leslie Miller, Inc. v. Arkansas,
352 U.S. 186, 190(1956); Railway Mail Assoc, v. Corsi, 325 U.S. 88, 93-96
(1945). The determinative question is whether the State’s regulation o f the
contractor conflicts with Federal legislation or with iany legitimate discern­
ible Federal policy. See, Penn Dairies, Inc. v. Milk Control Control
Com m ’n, 318 U.S. 257,271 (1943).

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   Protection o f sensitive intelligence inform ation is required by statute
and executive order, and clearly is a legitimate Federal function. See 50
U .S.C . §§ 403(d)(3), 403g; Executive O rder No. 12065, 43 F.R. 28949
(1978). It appears to us that the CIA reasonably has determined that im­
plementation o f the Industrial Polygraph Program is necessary to protect
adequately SCI inform ation. If adm inistration o f the test to each included
category o f employees is reviewed carefully by CIA officials and deter­
mined necessary to protect sensitive inform ation, it is our view that the
State o f Massachusetts may not interfere by enforcing its law against the
Agency’s contractors.

                                  La r r y A . H a m m o n d
                           D eputy Assistant A ttorney General
                                                 Office o f Legal Counsel




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