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NATIONAL SECURITY CONCERNS VERSUS INDIVIDUAL RIGHTS

THE EXTRAORDINARY RESTRICTIONS ON THE CONSTITUTIONAL RIGHTS OF CENTRAL INTELLIGENCE AGENCY EMPLOYEES: HOW NATIONAL SECURITY CONCERNS LEGALLY TRUMP INDIVIDUAL RIGHTS

DANIEL PINES*

May 6, 2012

 

SUMMARY (download full article)

Employees of the Central Intelligence Agency (CIA or “the Agency”) engage in activities designed to protect the nation’s security and, at heart, its Constitution. Ironically, however, CIA employees, by dint of their employment with the Agency, are required to forego many of the very constitutional protections they fight so hard to protect. U.S. law and Agency regulations restrict the ability of CIA employees to engage in political activity, take outside employment, or travel internationally.

The CIA significantly invades the privacy of its employees by requiring extensive and intrusive background checks of its employees including blood tests and polygraph examinations. The Agency even goes so far as to limit who its employees can befriend, date, and marry. To top it all off, CIA employees are greatly precluded from contesting these limitations as Congress has prohibited them from forming unions or going on strike, and the Judiciary has greatly limited the ability of Agency employees to bring claims in U.S. courts. Failure to comply with any of the above restrictions can result in disciplinary action and even termination of employment. CIA employees recognize, upon voluntarily joining the Agency, that their constitutional freedoms will be restricted to protect national security; yet few Americans realize the breadth and depth of those restrictions.

This article examines the legality of the various restrictions imposed on CIA employees. It concludes that virtually all pass constitutional muster but that one – prohibiting employees from maintaining a substantial and personal relationship with any citizen from certain designated nations – could raise legal concerns.

*Assistant General Counsel, Office of General Counsel, Central Intelligence Agency. All statements of fact, opinion, or analysis expressed are those of the author and do not reflect the official positions or views of the Central Intelligence Agency (“CIA” or “the Agen- cy”) or any other U.S. Government agency. Nothing in the contents should be construed as asserting or implying U.S. Government authentication of information or CIA endorsement of the author’s views. This material has been reviewed by the CIA to prevent the disclosure of classified information.

 
SEE BELOW FOR TABLE OF CONTENTS OF THIS LAW REVIEW ARTICLEpage1image5815424page1image5824160

 

FLORIDA STATE JOURNAL OF TRANSNATIONAL LAW & POLICY [Vol. 21]

 

TABLE OF CONTENTS

INTRODUCTION

I.          EXTRAORDINARY POWER OF THE DIRECTOR OF THE CIA

II.         RESTRICTIONS ON ENGAGING IN POLITICS AND POLITICAL EXPRESSION

III.        LIMITATIONS ON FRIENDSHIPS, DATING, AND MARRIAGE THE AGENCY’S ANTI- FRATERNIZATION POLICY

             A.  Case-by-case Evaluations 

                 1. Due Process

                 2. Equal Protection

                 3. Title VII

              B.  The Agency’s Blanket Policy on Employee Relationships with Citizens of Certain Countries

IV.          RESTRICTIONS ON OUTSIDE EMPLOYMENT

              A. Secondary Employment

              B. Emoluments

              C. Pre-Review of Résumés

              D. Ethics Rules

V.           RESTRICTIONS ON EMPLOYEE PRIVACY: BACKGROUND INVESTIGATIONS AND MONITORING AGENCY EMPLOYEES AT WORK

              A. Providing Personal Information

              B. Drug Testing

              C. Polygraph Examination

              D. Workplace Searches

VI.          LIMITATIONS ON PERSONAL INTERNATIONAL TRAVEL

VII.        PROHIBITION ON UNIONS AND STRIKES

VII.        RESTRICTIONS ON ACCESS TO COURTS

CONCLUSION

 

 

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