United States General Accounting Office

GAO Report to the Honorable

Patricia Schroeder, House of

Representatives

March 1996 INTELLIGENCE

AGENCIES

Personnel Practices at

CIA, NSA, and DIA

Compared With Those

of Other Agencies

G O A

years

1921 - 1996

GAO/NSIAD-96-6

GAO United States

General Accounting Office

Washington, D.C. 20548

National Security and

International Affairs Division

B-258884 

March 11, 1996

The Honorable Patricia Schroeder

House of Representatives

Dear Mrs. Schroeder:

We have completed the review you requested on selected personnel practices at the Central

Intelligence Agency, the National Security Agency, and the Defense Intelligence Agency.

As agreed with your office, unless you publicly announce its contents earlier, we plan no further

distribution of this report until 7 days after its issue date. At that time, we will send copies to

appropriate congressional committees and to individual Members of Congress who represent

large numbers of intelligence agency employees. We will also send copies to the Director of

Central Intelligence, the Secretary of Defense, the Director of the National Security Agency, the

Director of the Defense Intelligence Agency, the Chairman of the Merit Systems Protection

Board, the Chairman of the Equal Employment Opportunity Commission, and the Director of

the Office of Management and Budget. Copies will also be made available to others upon

request.

Please contact me on (202) 512-3504 if you or your staff have any questions concerning this

report. Major contributors to this report are listed in appendix IV.

Sincerely yours,

Richard Davis

Director, National Security

 Analysis
Executive Summary

Purpose Intelligence agencies employ thousands of people who, for reasons of

national security, are not covered by certain federal personnel statutory

protections. Concerned that intelligence agency employees do not have

the same protections afforded other federal employees, the Civil Service

Subcommittee of the former House Committee on the Post Office and Civil

Service and Representative Patricia Schroeder requested GAO to review

selected personnel practices at the Central Intelligence Agency (CIA), the

National Security Agency (NSA), and the Defense Intelligence Agency (DIA).

Specifically, GAO compared equal employment opportunity (EEO) and

adverse action practices at these agencies with those of other federal

agencies and determined whether employee protections at these three

intelligence agencies could be standardized with the protections offered

by other federal agencies.

Background EEO programs are programs designed to prevent discrimination in the

workplace. Federal law, including title VII of the Civil Rights Act of 1964

and the Equal Pay Act, require that federal agencies have EEO programs.

The Equal Employment Opportunity Commission is a separate agency that

oversees EEO policies throughout the federal government. The Equal

Employment Opportunity Commission also holds hearings on employee

discrimination complaints and decides on appeals from federal employees

with EEO complaints against their agencies.

Adverse actions are actions taken by an agency that adversely affect an

employee, including suspension or removal. The 5 U.S.C. 7513 provides

most federal employees with various protections when they are subject to

adverse actions. The Merit Systems Protection Board is a separate agency

created to, among other functions, hear and decide on federal employee

appeals of adverse actions taken by their agencies.

Congress has exempted the CIA, NSA and DIA from a number of statutes that

regulate and control the personnel practices of other federal agencies. The

legislative histories of these exemptions indicate that the intelligence

agencies are treated differently primarily for reasons of national security.

Also, the directors of all three agencies have authorities to summarily

remove employees.

Results in Brief The CIA, NSA, and DIA have EEO practices similar to those of other federal

agencies with respect to management, planning, reporting, complaint

processing, and affirmative action. In contrast, adverse action practices at

Page 2 GAO/NSIAD-96-6 Intelligence Agencies
Executive Summary

the intelligence agencies vary by agency and type of employee. The

internal procedures (and associated employee protections) at NSA and DIA

are similar to those of other federal agencies. Although NSA and DIA have

statutory authorities to summarily remove employees in national security

cases, these agencies’ implementing regulations include some basic

employee protections. The internal adverse action regulations at CIA also

include some employee protections, but the CIA Director can waive all

employee protections and summarily remove employees at any time. The

external appeals procedures at intelligence agencies differ from the

procedures at other federal agencies in that most employees (all but NSA

and DIA military veterans) cannot appeal adverse actions to the Merit

Systems Protection Board.

GAO’s review indicated that with the retention of summary removal

authorities, these intelligence agencies could follow standard federal

practices, including the right to appeal adverse actions to the Merit

Systems Protection Board, without undue risk to national security. GAO

recognizes that Congress is currently studying reforms to these standard

federal practices, and GAO has testified that some of these practices have

shortcomings. However, GAO sees no justification for treating employees at

these intelligence agencies differently from employees at other federal

agencies except in rare national security cases.

Principal Findings

EEO Practices Are Similar

to Those at Other Agencies

CIA, NSA and DIA have practices for EEO management, planning, and

reporting that are very similar to those at other federal agencies. These

agencies generally follow Equal Employment Opportunity Commission

guidelines for managing and planning their EEO programs. Intelligence

agencies also provide the Equal Employment Opportunity Commission

with standard EEO statistical reports that, unlike the reports of other

agencies, exclude information on total agency workforce levels because

this information is classified.

EEO complaint processing at CIA, NSA, and DIA is similar to the processing at

other federal agencies, with internal investigations and an external hearing

by or appeals to the Equal Employment Opportunity Commission. Like

other federal employees, CIA, NSA, and DIA employees with EEO complaints

may also pursue their concerns through civil actions in U.S. courts. In

Page 3 GAO/NSIAD-96-6 Intelligence Agencies
Executive Summary

hearings or appeals to the Equal Employment Opportunity Commission or

the courts, judges and attorneys are provided security clearances as

needed. CIA and NSA take longer than other federal agencies to process

employee EEO complaints, while DIA takes less time. These agencies, when

compared with other federal agencies, have substantially fewer EEO

complaints per 1,000 employees, but the number of complaints is

increasing much faster than complaints in the federal workforce as a

whole.

Like other federal agencies, CIA, NSA, and DIA have broad EEO goals for

workforce diversity and have developed programs to assist in achieving

these goals. Despite these efforts, minorities and women are still

underrepresented in these agencies’ workforces when compared with

their representation in the federal workforce as a whole. The leadership at

these three intelligence agencies has publicly recognized these diversity

problems and has pledged to correct them.

Adverse Action Practices

or Regulations, Except for

External Appeals, Are

Similar to Those of Other

Agencies

The internal regulations and practices for adverse action at NSA and DIA are

very similar to those of other federal agencies. NSA and DIA regulations

entitle employees to (1) receive advance notice of proposed actions,

(2) reply to charges, (3) have representation, and (4) receive a final written

decision. Further, GAO’s review of 40 NSA and DIA case files from 1993 and

1994 indicated that these agencies complied with their regulations. These

agencies have statutory authority to summarily remove employees in

national security cases. But even in such cases (which have never

occurred), agency regulations still provide some basic employee

protections.

CIA internal regulations for adverse actions are similar to the procedures of

other federal agencies in providing employees with some protections.

However, these protections can be waived because CIA regulations provide

the director with carte blanche authority to remove employees. According

to the CIA’s regulations, the director’s decisions to remove employees are

not limited by any law, they do not have to be based on national security,

and the director is not accountable to anyone for such decisions. GAO

could not determine what protections CIA employees are actually afforded,

or how often the director has exercised his carte blanche authority to

remove employees, because CIA would not allow GAO to review case files.

All employees at CIA and most employees at NSA and DIA have no right to

appeal adverse actions externally to the Merit Systems Protection Board.

Page 4 GAO/NSIAD-96-6 Intelligence Agencies
Executive Summary

At NSA and DIA, only military veterans (making up approximately

21 percent and 32 percent of these agencies’ respective civilian

workforces) can appeal adverse actions to the Merit Systems Protection

Board because this right is derived from the Veterans Preference Act.

There is no national security rationale for the different treatment of

veterans and nonveterans by the different agencies. The Merit System

Protection Board, in reviewing adverse action decisions by federal

agencies (including NSA and DIA actions against veterans), reviews agency

procedures but does not review the substance of security clearance

determinations, which are frequently a reason that these agencies remove

employees.

Congress Could Grant

Standard Federal

Protections to Employees

at These Agencies Without

Undue Risk to National

Security

For many years, NSA and DIA have served as examples that intelligence

agencies can operate under standard adverse action practices. Regarding

internal adverse action practices, all NSA and DIA employees enjoy the same

protections as other federal employees. Regarding external appeals of

adverse actions, a substantial number of NSA and DIA employees (veterans)

enjoy appeal rights to the Merit Systems Protection Board just like other

federal employees. Further, GAO found that very few adverse action cases

involve sensitive information. Specifically, in recent NSA and DIA adverse

actions reviewed by GAO, 39 of 40 case files (or 98 percent) contained no

classified national security information. Moreover, while NSA and DIA can

remove employees using their summary removal authorities to prevent the

Merit Systems Protection Board from reviewing a veteran’s appeal, these

agencies have never elected to do so.

GAO sees no reason why the NSA and DIA experiences would not be

applicable to CIA as well. Regarding internal removal practices, aside from

the director’s carte blanche removal authority, CIA regulations are similar

to those of other agencies. Regarding external appeals, employees at NSA

and DIA (like CIA employees) have access to highly classified information.

Thus, CIA employee appeals would not appear to be more of a risk to

national security than current appeals by NSA and DIA veterans.

If CIA, NSA, and DIA employees were granted standard federal protections

against adverse actions, the agencies could still take several steps to

protect national security information. First, the agencies could continue

current procedures to keep classified information out of adverse action

case files. All three agencies have experience preparing case files for

external appeals in adverse action and/or EEO cases. In a recent EEO court

case, CIA’s preparation of documents about case officers demonstrates that

Page 5 GAO/NSIAD-96-6 Intelligence Agencies
Executive Summary

information on sensitive intelligence operations can be converted into

unclassified publicly available documents. Second, where classified

information cannot be avoided, the agencies could provide security

clearances to Merit System Protection Board administrative judges and

employee attorneys in adverse action appeals. All three agencies have

experience dealing with judges and attorneys who have security

clearances in EEO appeals to the Equal Employment Opportunity

Commission and in court cases. Therefore, providing employees with

rights to appeal to the Merit Systems Protection Board would present no

more risk to national security than do current employee appeals to the

Equal Employment Opportunity Commission.

Recognizing that risks could still arise, GAO believes that agencies would

need to preserve their current summary removal authorities. Because

these removal authorities are not subject to external appeal, the agencies

could use them to minimize national security risks in highly sensitive

cases. At NSA and DIA, these special authorities have been used judiciously.

CIA did not allow GAO to review case files, so GAO cannot make judgments

on the frequency or propriety of cases where the director’s summary

removal authority was used. CIA officials stated that this authority has

sometimes been used in cases not related to national security, such as

reductions in force.

Recommendations This report contains no recommendations.

Agency Comments

and GAO’s Evaluation

In commenting on a draft of this report, the Department of Defense (DOD)

concurred with GAO conclusions about NSA and DIA regarding EEO issues.

CIA’s comments did not address the draft report’s treatment of EEO issues.

Regarding adverse actions, CIA and DOD did not concur with GAO’s

conclusion that Merit Systems Protection Board appeal rights could be

extended to all intelligence agency employees. CIA and DOD stated that GAO

did not adequately consider the national security risks associated with

such a change in policy. GAO disagrees because the report lays out a tiered

process in which, depending on the level of risk involved, the agencies

themselves would determine what precautionary steps would be most

appropriate. In addition, GAO clearly acknowledges that there may be

national security cases in which summary removal, without appeal, will be

appropriate.

Page 6 GAO/NSIAD-96-6 Intelligence Agencies
Executive Summary

CIA and DOD also stated that GAO underestimated the administrative costs of

allowing appeals to the Merit Systems Protection Board. GAO agrees that

there will be some additional administrative costs involved. GAO has

previously testified that the federal redress process, because of its

complexity, is inefficient, expensive, and time-consuming. However,

Congress provided the intelligence agencies with exemptions to standard

federal policies based on national security considerations, not to

streamline administrative procedures. Congress is currently studying the

federal redress process and to the extent that the process is reformed, cost

as well as administrative burdens may be reduced. Any changes made in

intelligence agency practices should be consistent with changes Congress

may make to reduce costs and time for the redress process for other

federal employees.

The Equal Employment Opportunity Commission had no comments on

GAO’s findings regarding the intelligence agencies, but disagreed with GAO’s

previous testimony about shortcomings in the federal redress process. The

Merit Systems Protection Board elected not to provide comments.

Page 7 GAO/NSIAD-96-6 Intelligence Agencies
Contents

Executive Summary 2

Chapter 1 

Introduction

10

Background on Intelligence Agencies We Reviewed 10

Equal Employment Opportunity 11

Adverse Actions 12

Objectives, Scope, and Methodology 13

Chapter 2 

EEO Practices Are

Similar to Those of

Other Federal

Agencies

16

EEO Mandates Generally Apply to Intelligence Agencies 16

Intelligence Agencies Follow EEOC Directives on EEO

Management, Planning, and Reporting

17

EEO Complaint Process Similar to Processes at Other Federal

Agencies, but Slower at CIA and NSA

18

Intelligence Agencies Have Workforce Diversity Programs, but

Results Lag Behind Other Agencies

22

Agency Comments 27

Chapter 3 

Adverse Action

Regulations, Except

for External Appeals,

Are Similar to Those

of Other Federal

Agencies

28

Intelligence Agencies Have Legal Exemptions From Federal

Practices

28

NSA and DIA Internal Practices Are Almost Identical to Those of

Other Agencies

28

CIA Internal Regulations Are Similar to Other Agencies, Except

for DCI’s Carte Blanche Authority

31

Most Employees Have No External Appeal to MSPB 33

Agency Comments and Our Evaluation 34

Chapter 4 

Congress Could Grant

Intelligence

Employees Standard

Federal Protections

Without Undue Risk

to National Security

35

NSA and DIA Illustrate That Intelligence Employees Can Have

Standard Federal Protections

35

Recent NSA and DIA Cases Raise Few National Security

Concerns

36

Agencies Could Remove Classified Information and Provide

Security Clearances to Judges and Attorneys

38

Where Risks Remain, Agencies Could Use Their Summary

Removal Authorities

40

Agencies Question Benefits and Costs of External Appeal to

MSPB

42

Page 8 GAO/NSIAD-96-6 Intelligence Agencies
Contents

Conclusion 45

Agency Comments and Our Evaluation 45

Appendixes Appendix I: Comments From the Central Intelligence Agency 48

Appendix II: Comments From the Department of Defense 56

Appendix III: Comments From the Equal Employment

Opportunity Commission

61

Appendix IV: Major Contributors to This Report 65

Related GAO Products 67

Tables Table 2.1: Comparison of Average Number of Days to Process

and Close Discrimination Complaints

20

Table 2.2: Number of EEO Discrimination Cases Filed 21

Figures Figure 2.1: Percentages of Minorities and Women in Three

Intelligence Agencies Compared With Percentages in the Federal

Workforce and the Civilian Labor Force

24

Figure 2.2: Percentages of African-Americans and Hispanics in

Three Intelligence Agencies Compared With Percentages in the

Federal Workforce and the Civilian Labor Force

25

Figure 2.3: Percentages of Asian-Pacifics and Native Americans in

Three Intelligence Agencies Compared With Percentages in the

Federal Workforce and the Civilian Labor Force

26

Abbreviations

CIA Central Intelligence Agency

DCI Director of Central Intelligence

DIA Defense Intelligence Agency

DOD Department of Defense

EEO Equal Employment Opportunity

EEOC Equal Employment Opportunity Commission

GAO General Accounting Office

MSPB Merit Systems Protection Board

NSA National Security Agency

OPM Office of Personnel Management

Page 9 GAO/NSIAD-96-6 Intelligence Agencies
Chapter 1 

Introduction

Intelligence is the collection, integration, analysis, production, and

dissemination of information on foreign entities. Such entities include

governments, nongovernmental organizations, or individuals. Some of the

best intelligence information comes from sensitive sources and methods.

To protect these sources and methods and ensure the continued

availability of the information to the United States, most intelligence is

classified and carefully controlled on a “need-to-know” basis. Due to the

sensitive nature of their work, intelligence agencies classify information

on the size of their budget and workforce.

Background on

Intelligence Agencies

We Reviewed

The Central Intelligence Agency (CIA) is an independent agency created by

the National Security Act of 1947. CIA’s mission is to collect, analyze,

produce, and disseminate foreign intelligence. CIA researches, develops,

and procures technical systems for gathering intelligence and conducts

clandestine operations as authorized by the President. CIA’s finished

intelligence products are generally designed to support national-level

policy deliberations. CIA has a broader mission to coordinate all

intelligence activities of the U.S. government. CIA is headed by the Director

of Central Intelligence (DCI) who, in addition to managing CIA’s operations,

has broad authority to manage all U.S. intelligence activities. Other than

setting governmentwide security clearance standards for intelligence

employees, the DCI generally does not get involved in personnel

management issues at the other intelligence agencies. Almost 100 percent

of the CIA workforce is civilian.

The National Security Agency (NSA) is a combat support agency within the

Department of Defense (DOD) established by presidential directive in 1952.

NSA has two separate missions: signals intelligence and communications

security. For signals intelligence, NSA manages all U.S. signal collection

and processing and produces signals intelligence in accordance with DOD

and DCI priorities. For communications security, NSA provides leadership,

products, and services to U.S. agencies that need to protect their

information and communication systems from foreign exploitation. NSA is

headed by a three-star flag officer, who reports to the Secretary of

Defense. About 80 percent of the NSA workforce is civilian.

The Defense Intelligence Agency (DIA) is a combat support agency within

DOD established by DOD directive in 1961. DIA’s mission is to satisfy the

requirements of DOD for foreign military and military-related intelligence.

DIA coordinates the collection and production of all defense intelligence

activities and operates education and training programs for military and

Page 10 GAO/NSIAD-96-6 Intelligence Agencies
Chapter 1 

Introduction

civilian personnel involved in defense intelligence. DIA also provides

intelligence to non-defense organizations such as CIA, the National Security

Council, and the State Department. DIA is headed by a three-star flag

officer, who reports to the Secretary of Defense and the Chairman of the

Joint Chiefs of Staff. About 70 percent of the DIA workforce is civilian.

Congress has exempted these three intelligence agencies from a number of

statutes that regulate the personnel practices of other federal agencies and

provide their employees with certain protections and rights. In addition,

the Directors of CIA, NSA, and DIA have statutory authority to summarily

remove employees. The language and legislative histories of laws

exempting the agencies’ employees from protections and rights afforded

other federal employees indicate that these intelligence agencies are

treated differently primarily for reasons of national security.

Equal Employment

Opportunity

Equal employment opportunity (EEO) is a policy, implemented through

laws and personnel regulations, intended to prevent workplace

discrimination on the basis of race, color, religion, sex, national origin,

age, or physical limitation. EEO practices are also intended to overcome the

historic underrepresentation of minorities and women in the workforce

through affirmative action programs.

The Civil Rights Act of 1964, as amended by the Equal Employment

Opportunity Act of 1972, requires federal agencies to develop and

implement EEO programs. Further requirements were laid out in Executive

Order 12067. The EEO offices in federal agencies manage the agencies’ EEO

complaints. For example, employees may file complaints alleging that they

were mistreated or denied promotions on account of race or gender.

These offices also help implement agency affirmative action programs. For

example, EEO offices track the number of minority or women employees

who are recruited and promoted.

The Office of Personnel Management (OPM) plays a role in EEO programs by

overseeing and assisting agencies in their affirmative action recruitment

efforts. OPM’s role is secondary to that of the Equal Employment

Opportunity Commission.

Equal Employment

Opportunity Commission

The Equal Employment Opportunity Commission (EEOC) is an independent

federal agency responsible for coordinating all executive branch EEO

programs and activities. Executive Order 12067 made EEOC responsible for

Page 11 GAO/NSIAD-96-6 Intelligence Agencies
Chapter 1 

Introduction

providing agencies with guidance on their affirmative employment

programs. EEOC has issued several management directives that contain

policy statements, procedures, and reporting requirements for federal

agencies to follow when establishing and managing their EEO programs.

EEOC has also provided agencies with guidance relating to processing

employment discrimination complaints.

In addition to overseeing EEO policies and practices for the executive

branch of government, the EEOC also hears appeals from employees that

have complaints against their agencies. EEOC can hold hearings on

individual discrimination cases before an agency final decision on a

complaint and/or review the agency decision on appeal from the

employee. Federal employees who wish to file EEO discrimination

complaints may also pursue their case through civil actions in U.S. district

courts after pursuing their administrative remedies.

Adverse Actions Adverse actions are personnel actions taken by an agency that adversely

affect an employee, such as reduction in grade or pay, suspension, and

removal. By statute and regulations prescribed by OPM, most agencies may

take adverse actions against employees only when justified to promote the

efficiency of the federal service.

Removal is the most serious type of adverse action and, except for

egregious misconduct, usually occurs after a progression of other lesser

disciplinary actions are unsuccessful in improving the employee conduct.

For example, if an NSA guard leaves a guard post without authority, the

first offense could result in a 30-day suspension, but the second offense

could result in removal. Given that holding a security clearance is a

mandatory condition of employment at intelligence agencies, the denial or

revocation of a clearance is also grounds for removal.

Merit Systems Protection

Board

The Merit Systems Protection Board (MSPB) is an independent agency that

serves as the guardian of the federal merit system principles—rules of

conduct for federal agencies. MSPB’s mission is to ensure that (1) federal

employees are protected against abuses by their agencies’ management,

(2) executive branch agencies make employment decisions in accordance

with merit system principles, and (3) federal merit systems are kept free of

prohibited personnel practices. MSPB is headed by a bipartisan Board made

up of three members, appointed by the President, with the advice and

consent of the Senate. Each member serves a single 7-year term.

Page 12 GAO/NSIAD-96-6 Intelligence Agencies
Chapter 1 

Introduction

Similar to the EEOC, the MSPB hears and decides upon federal employee

appeals of adverse actions taken by their agencies. A number of personnel

actions can be appealed to the MSPB, but the vast majority of appeals to

MSPB are agency adverse actions involving reductions in grade or pay,

suspensions of more than 14 days, and removals. MSPB can also hear so

called “mixed cases,” which are adverse action cases where an employee

has alleged discrimination. If the employee is dissatisfied with the MSPB

decision in a mixed case, he or she can ask EEOC to review MSPB’s decision.

Once an initial decision of an MSPB administrative judge has become final

or the Board has issued a final decision on a petition for review, an

employee can appeal the final decision to the U.S. Court of Appeals for the

Federal Circuit or, in mixed cases involving allegations of discrimination,

file a civil action in the appropriate U.S. district court.

Objectives, Scope,

and Methodology

We initiated our review at the request of the Chairman of the Civil Service

Subcommittee of the former House Committee on the Post Office and Civil

Service. The Committee was concerned that employees at CIA, NSA, and DIA

do not have the same protections as other federal employees. The 104th

Congress reorganized the committee structure, abolishing the House

Committee on Post Office and Civil Service. We continued our review for

Representative Patricia Schroeder, who was a signatory on the original

request letter. Our objectives were to

• compare EEO practices at CIA, NSA, and DIA with those of other federal

agencies;

• compare adverse action practices at CIA, NSA, and DIA with those of other

federal agencies; and

• determine whether adverse action practices at CIA, NSA, and DIA could be

standardized with those of other federal agencies without undue risk to

national security.

Our scope was limited to civilian tenured personnel at these three

agencies. We did not consider military personnel, senior executives, or

civilian personnel serving probationary periods or temporary

appointments. We did not look at other federal agencies in the intelligence

community such as the Central Imagery Office, the National

Reconnaissance Office, the Department of State, the Department of

Energy, or the intelligence organizations of each military service. We also

did not look at other agencies that have some of the same

personnel-related statutory exemptions as intelligence agencies. Our

Page 13 GAO/NSIAD-96-6 Intelligence Agencies
Chapter 1 

Introduction

primary purpose was to compare CIA, NSA, and DIA with other federal

agencies, rather than conduct a detailed examination of the effectiveness

of each agency’s personnel practices. We did not attempt to determine the

merits of individual EEO or adverse action cases. Finally, our work was not

aimed at evaluating or endorsing the policies, practices or procedures of

EEOC or MSPB in handling employee complaints.

To compare the EEO practices of these intelligence agencies with those of

other federal agencies, we reviewed appropriate statutes and guidance

from EEOC and OPM. We compared these requirements with intelligence

agency practices by reviewing EEO-related agency regulations. We did not

directly evaluate non-intelligence agency practices. We examined

statistical reports on complaint processing and workforce profile to

compare intelligence agency practices with those of other federal

agencies. We accepted agency EEO statistics as reported to EEOC and did

not conduct independent reliability assessments on this data. We reviewed

selected court cases where employees had sued the intelligence agencies

for discrimination to examine how intelligence agency cases are handled

in court proceedings. In addition, we met with EEO officials from each

agency to discuss the full range of their programs. We also met with EEOC

officials to get their views on intelligence agency programs to determine

how these agencies compare with programs administered by other

agencies.

To compare the adverse action practices of these intelligence agencies

with those of other federal agencies, we identified and reviewed

appropriate regulations and statutes. We then compared these

governmentwide requirements to intelligence agency requirements by

reviewing agency adverse action regulations. We did not directly evaluate

non-intelligence agency practices. At NSA and DIA we conducted detailed

reviews of all available adverse action case files from 1993 and 1994. We

reviewed these 40 case files to determine whether NSA and DIA were

following their own adverse action procedures. At MSPB we conducted

detailed reviews of all available case files on CIA, NSA, and DIA employee

appeals. We reviewed these 14 cases (dating from 1989 to 1994) to

examine how intelligence agency cases are handled in the MSPB appeal

process. In addition, we met with personnel and legal officials from each

agency to discuss their procedures as well as specific adverse action

cases. We also met with MSPB officials to get their views on intelligence

agency adverse action appeals.

Page 14 GAO/NSIAD-96-6 Intelligence Agencies
Chapter 1 

Introduction

To determine whether adverse action practices at CIA, NSA, and DIA could

be standardized with those of other agencies, we performed a number of

audit tasks. In our reviews at NSA, DIA, and MSPB (discussed previously) we

examined case files to determine the extent to which these files contained

classified or declassified information. We also examined publicly available

EEO court case files to determine the types of information present and

whether intelligence agencies were able to remove classified information

from personnel related documents. We also reviewed these intelligence

agencies’ summary removal authorities. Finally, we met with personnel

and legal officials from CIA, NSA, DIA, EEOC, and MSPB. In these meetings, we

discussed the unique requirements of intelligence agencies, focusing on

potential risks to national security and ways to minimize them.

Our work was impaired by a lack of full cooperation by CIA officials. These

officials denied us pertinent documents and other information related to

our review. Most significantly, CIA officials would not allow us to review

case files, which made it impossible for us to determine the extent to

which CIA follows its own regulations. In contrast, NSA and DIA officials

cooperated fully with our review, providing us with complete copies of

their regulations and allowing us to review case files.

We performed our review from October 1994 to November 1995 in

accordance with generally accepted government auditing standards. These

standards require that we consider work done by other auditors, so we

coordinated our review with the DOD Inspector General. DOD Inspector

General staff had performed two reviews (one of them simultaneous to

our review) on EEO practices at NSA; these reviews were completed in

April 1994 and September 1995.

Comments from CIA, DOD, and EEOC on a draft of this report and our

evaluation of them are presented in appendixes I, II, and III, respectively.

A summary of their relevant comments appears at the end of chapters 2, 3,

and 4. MSPB declined to provide any comments on our report.

Page 15 GAO/NSIAD-96-6 Intelligence Agencies
Chapter 2 

EEO Practices Are Similar to Those of Other

Federal Agencies

CIA, NSA, and DIA have EEO practices similar to those of other federal

agencies. These agencies are generally subject to governmentwide

mandates related to EEO and generally follow EEOC regulations for EEO

program management, planning, and reporting. EEO discrimination

complaints are processed just like in other federal agencies, with

procedures that involve internal investigations and possible external

proceedings by EEOC and U.S. district courts. During fiscal years 1992

through 1994, the average time to process a complaint at DIA was faster

than the federal average. While processing times at CIA and NSA were

consistently slower than the federal average, these agencies have recently

made significant strides in decreasing their processing times. These

agencies have relatively few EEO complaints compared with other federal

agencies, but characteristic with the rest of the federal government, the

number of complaints filed is rising. These intelligence agencies have

programs to increase the representation of minorities and women, but the

results of such programs lag behind the federal workforce as a whole. CIA,

NSA, and DIA directors have pledged to improve their workforce diversity.

EEO Mandates

Generally Apply to

Intelligence Agencies

CIA, NSA, and DIA are generally subject to the same EEO legislation and

executive orders as other federal agencies. Specifically, these agencies

must follow (1) title VII of the Civil Rights Act of l964, (2) the Equal Pay

Act, (3) the Age Discrimination in Employment Act, (4) the Rehabilitation

Act of 1973, (5) the Civil Rights Act of 1991, and (6) Executive Order

11478. Taken together, these provisions prohibit discrimination in

employment based on race, color, religion, sex, national origin, age, or

physical limitation. They require affirmative programs to promote equal

opportunity and identify and eliminate discriminatory practices and

policies.

NSA and DIA also operate under DOD’s EEO mandates. For example, DOD

Directive 1440.1, “The DOD Civilian Equal Employment Opportunity

Program,” requires NSA and DIA to develop and implement affirmative

action programs so that minorities, women, and disabled individuals are

represented in the workforce as specified in EEOC and OPM guidelines.1

 The

directive also requires NSA and DIA to develop procedures and implement

affirmative action programs for women, minorities, disabled individuals,

and disabled veterans. NSA and DIA are also required to develop a Federal

Equal Opportunity Recruitment Program for minorities and women and a

comparable special recruitment program for disabled individuals.

1

In 5 C.F.R. 720, OPM sets forth the regulations implementing 5 U.S.C. 7201, which requires each

agency to establish an equal opportunity recruitment program.

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Although CIA, NSA, and DIA generally are subject to the same EEO laws and

requirements as other federal agencies, it has yet to be resolved whether

their summary removal authorities would preclude EEO-based challenges

in the federal courts, EEOC, or MSPB. In a case challenging the way the DCI

used his summary removal authority, the United States Supreme Court

found that Congress meant to commit individual employee discharges to

the director’s discretion and his decisions could not be reviewed by the

courts pursuant to an appeal under the Administrative Procedure Act.2

Nevertheless, the Court also found that federal courts could review

constitutional challenges to the director’s use of this authority. Moreover,

because the Administrative Procedure Act is not an EEO statute, it is not

clear what the Court would do if presented with a challenge to the

director’s summary removal authority under an EEO statute.3

Intelligence Agencies

Follow EEOC

Directives on EEO

Management,

Planning, and

Reporting

EEOC management directives provide broad guidance to the federal

agencies for managing their EEO programs. EEOC Directive 110 mirrors 

29 C.F.R. part 1614, which establishes the broad framework for EEO

programs administered by federal agencies. In addition, EEOC Management

Directive 714 contains some requirements for federal agency affirmative

employment program management.

CIA, NSA, and DIA generally follow these EEOC directives for managing their

EEO programs. For example, these intelligence agencies have

• established EEO staff positions,

• created EEO offices that report directly to the agency director,

• ensured that minority and female representation is considered in all

agency staffing and promotion actions, and

• placed an emphasis on EEO hiring.

These intelligence agencies have also developed regulations that formally

incorporate EEOC Directive 110 provisions in administrative manuals. For

example, DIA’s Civilian Personnel Manual 22-23 states that, in performing

their civilian personnel management duties, DIA officials will not

discriminate on the basis of age, race, sex, national origin, marital status,

or religious preference.

According to EEOC officials, CIA, NSA, and DIA also follow the planning and

reporting provisions of EEOC Management Directive 714. Directive 714

2

Webster v. Doe, 486 U.S. 592, 600 (1988).

3

The Directors of NSA and DIA have similar authority, as discussed in further detail in chapter 3.

Page 17 GAO/NSIAD-96-6 Intelligence Agencies
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requires each agency to analyze the current status of its affirmative

employment program elements and address such segments as workforce

composition, recruiting, hiring, promotions, and removals. Agencies are to

compare the representation of EEO groups for various occupational and

grade/pay categories in the agency’s workforce with the representation of

the same occupational groups in the appropriate civilian labor force. On

the basis of their analyses, agencies are to take steps to address barriers

and problems that restrict equal employment opportunities.

In addition, EEOC officials stated that these three intelligence agencies

generally (1) prepare the required plans in accordance with requirements

and (2) maintain current files on annual and multiyear plans. EEOC officials

also stated that CIA, NSA, and DIA file their annual analysis of workforce

reports and diversity profile reports in a timely manner. The only

difference between these intelligence agencies and other federal agencies

is that intelligence agencies omit classified information on total agency

workforce. However, workforce diversity data is reported to EEOC annually

as a percentage of the total agency workforce.

EEO Complaint

Process Similar to

Processes at Other

Federal Agencies, but

Slower at CIA and

NSA

Complaint Process Similar CIA, NSA, and DIA have developed systems for processing discrimination

complaints that are largely consistent with EEOC Directive 110 and 

29 C.F.R. part 1614. An aggrieved employee has the right to file a formal

discrimination complaint against the agency after first consulting with an

EEO counselor. The EEO agency counselor then has 30 to 90 days to

conduct informal counseling and attempt to resolve the issue during the

precomplaint counseling phase. If attempts at informal resolution fail, the

aggrieved individual may then proceed to file a formal complaint in writing

with the agency. If the agency accepts the complaint, it is assigned to an

investigator who is responsible for gathering information and investigating

the merits of the complaint. As per 29 C.F.R. part 1614, the agency is

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required to conduct a complete and fair investigation of the complaint

within 180-days after the formal complaint is filed—unless both parties

agree in writing to extend the period.4

After the investigation is completed, these agencies will issue a final

decision based on the merits of the complaint, unless the employee first

requests a hearing before an EEOC administrative judge. In this case, the

administrative judge will issue findings of fact and conclusions of law,

which the agency may reject or modify in making its final decision. Like

other federal employees, an intelligence agency employee who is

dissatisfied with the agency’s final decision may appeal this decision to

EEOC.

5

EEOC officials stated that EEO appeals from intelligence employees are like

the rest of the federal government, except for measures taken to protect

classified information. To protect national security information, EEOC

administrative judges, as well as attorneys for employees, must have

security clearances to review national security information that may be

relevant to each case.

Like other federal employees, CIA, NSA, and DIA employees who wish to file

EEO discrimination complaints may do so through civil actions in U.S.

district courts after exhausting administrative remedies. Complainants can

skip directly to district court if stages of the appeals process are not

completed in a timely manner.

Complaint Processing at

CIA and NSA Slower Than

at Other Federal Agencies

EEOC compiles statistics on EEO complaint processing throughout the

federal government. Federal EEO discrimination complaints can be closed

through four methods: (1) dismissals, (2) withdrawals, (3) settlements, and

(4) merit decisions (which are agency final decisions). EEOC calculates the

average processing time for closing formal EEO discrimination complaints

by dividing the total number of days that lapsed until a discrimination case

was closed (for all closed cases), by the total number of cases closed by

the agency (using any one of the four resolution methods). The complaint

processing data does not include the time expended by EEOC to process

appeals of agency final decisions.

4

29 C.F.R. part 1614 became effective in October 1992. It established time frames that allow federal

agencies up to 270 days to complete the EEO discrimination investigation and issue agency final

decisions when EEOC hearings are not involved.

5

Under this latter scenario, when an EEOC hearing is requested by the complainant, the entire process

is allowed to take up to 450 days.

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Our review of complaint processing statistics, as reported by these three

intelligence agencies to EEOC, showed that DIA’s processing of EEO

complaints is faster than the average of other federal agencies. In contrast,

CIA’s and NSA’s processing of EEO complaints was consistently slower than

at other federal agencies. However, all three agencies substantially

reduced their processing times in fiscal year 1994—at a time when

processing time for other federal agencies showed only a moderate

decline. Table 2.1 lists the average number of days reported by the CIA, NSA,

and DIA to process and close formal EEO discrimination complaints from

fiscal years 1992 to 1994.

Table 2.1: Comparison of Average

Number of Days to Process and Close

Discrimination Complaints (fiscal

years 1992-94) Fiscal year

All reporting

federal

agencies CIA NSA DIA

1992 349 468 900 272

1993 366 472 966 345

1994 356 369 573 267

NSA’s processing times were the worst of the three intelligence agencies,

particularly in fiscal years 1992 and 1993. In April 1994, the DOD Office of

Inspector General issued a report that focused on the adequacy of NSA’s

discrimination complaint process for resolving allegations of race and sex

discrimination. The Inspector General’s report concluded that, although

the agency has reduced the number of days needed to finalize a

discrimination case, the average time to complete a case was still well

over the maximum 270 days allowed.

The Director of NSA’s EEO office told us that NSA has implemented several

initiatives since the Inspector General’s 1994 report designed to reduce

complaint processing time and improve the management of EEO functions.

Number of EEO

Complaints Relatively Low

but Increasing

Compared with other federal agencies, CIA, NSA, and DIA have relatively few

EEO complaints. For the federal workforce, from fiscal years 1992 to 1994,

there were six to eight EEO complaints per 1,000 employees. Comparing

this rate with that of the CIA, NSA, and DIA, we find that these intelligence

agencies had a substantially lower number of complaints per 1,000

employees during this period. Since workforce data for the intelligence

agencies is classified, we cannot publish these comparative rates in this

report.

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Although the number of complaints is relatively low at CIA, NSA, and DIA, the

numbers have increased dramatically since fiscal year 1992. The number

of formal EEO complaints filed against CIA, NSA, and DIA had increased by

185 percent from fiscal years 1992 to 1994. The number of EEO

discrimination complaints filed against the federal sector, as a whole, is

also increasing. Governmentwide, the number of discrimination

complaints filed against federal agencies increased by 29 percent during

this same time frame. Table 2.2 shows the increase in EEO discrimination

complaints filed in federal agencies, as well as CIA, NSA, and DIA, during

fiscal years 1992 through 1994.

Table 2.2: Number of EEO

Discrimination Cases Filed (fiscal

years 1992-94) 

Fiscal years

Agency 1992 1993 1994

CIA 16 29 55

NSA 15 23 39

DIA 9 7 20

All reporting federal

agencies

19,106 22,327 24,592

EEOC officials stated that it would be difficult to identify the reason for the

lower rates or increasing complaints and that the number of complaints is

not indicative of the quality of a program. A well-run program could result

in a high number of complaints because the program informed employees

of their rights and demonstrated that employees who had legitimate

complaints could obtain redress. However, it is possible that a poorly run

program could result in a high number of complaints because the program

failed to reduce discriminatory behavior by managers. Per EEOC, part of the

increase in the number of complaints may be due to publicity regarding

new statutes and a number of successful, high-profile cases involving

federal employees. For example, a highly publicized class action suit was

initiated in 1992 against the CIA by nine female case officers, who were

provided relief in a 1995 settlement.

Another potential factor for increased complaints is individual initiatives

taken by these agencies to publicize their discriminations complaints

programs. EEOC cited the following examples of intelligence agency

initiatives to publicize their complaint processing program that may have

encouraged employees to come forward with allegations of discrimination.

During fiscal year 1992, DIA developed a quarterly EEO newsletter to

increase the awareness of the discrimination complaints program. During

fiscal year 1993, DIA restructured the EEO complaint process and began

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placing posters of EEO counselors throughout the agency. In fiscal year

1994, NSA issued agencywide memoranda concerning prohibitions against

reprisal and sexual harassment, explaining the employee’s right to file a

complaint. According to EEOC, the increased numbers may also represent

employees who had been discriminated against in the past but had not

filed because they were afraid of reprisals or perceived an environment

that discouraged them from filing complaints.

Intelligence Agencies

Have Workforce

Diversity Programs,

but Results Lag

Behind Other

Agencies

Intelligence Agency Goals,

Programs, and Recruiting

Efforts

Like other federal agencies, CIA, NSA, and DIA have established broad EEO

goals for achieving workforce diversity. For example, DIA has established

numerous goals, such as improving minority representation at all levels in

the agency, promoting women and minorities at a rate at least equal to

their representation in the workforce, and proactively recruiting minority

employees.

Special oversight programs have been implemented by CIA, NSA, and DIA to

assist in meeting affirmative action diversity goals. For example,

promotion panels at the agencies include minority and women

representatives. The DOD Inspector General reported that NSA has been

conscientious concerning the makeup of its promotion boards. The duties

of the promotion boards and the required composition—membership is to

include women and minority representatives—are prescribed in NSA

regulations. The requirement for board membership also applies to higher

level promotions.

For recruiting new minority employees, CIA, NSA, and DIA have special

college scholarship programs. At the behest of Congress, each of the

intelligence agencies has initiated special scholarship programs to

improve workforce diversity in critical skill categories. Such programs are

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to be used by each of the intelligence agencies to improve diversity and

attract highly qualified applicants.

Diversity Results Lag

Behind Other Agencies

OPM and EEOC adopted the civilian labor force as the standard for

measuring diversity within the federal government.6

 The 1990 civilian labor

force, based on 1990 census data, has remained the federal standard for

EEO representation since 1990. The civilian labor force was 21.8 percent

minority and 45.7 percent women. Minority groups in the civilian labor

force are further broken down with African-Americans at 10.3 percent,

Hispanics at 8.1 percent, Asian-Pacifics at 2.8 percent, and Native

Americans at 0.6 percent.

For women and minority representation, CIA, NSA, and DIA were below the

civilian labor force standard and the federal workforce percentages during

fiscal years 1992 through 1994. In terms of individual minority categories,

these agencies had mixed success in meeting the civilian labor force

representation rate for African-Americans during fiscal years 1992 through

1994. For Hispanic, Asian-Pacifics, and Native American representation,

CIA, NSA, and DIA were below the civilian labor force standard. Figures 2.1,

2.2, and 2.3 compare workforce diversity for EEO categories at the

intelligence agencies with diversity in the federal workforce and the

civilian labor force.

6

While the term “civilian labor force” is in common usage for federal EEO issues, the actual statistics

used are “civilian availability data.” The civilian availability data represents adjustments made to the

civilian labor force to reflect differences between the general workforce and the federal workforce.

OPM, the Census Bureau and EEOC work jointly to make these adjustments and create the civilian

availability data.

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Figure 2.1: Percentages of Minorities and Women in Three Intelligence Agencies Compared With Percentages in the

Federal Workforce and the Civilian Labor Force (fiscal years 1992-94)

Minorities Women

9/92 9/93 9/94 Civilian labor Force

fed. govt. DIA NSA CIA fed. govt. DIA NSA CIA

0

5

10

15

20

25

30

35

40

45

50

Percent

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Figure 2.2: Percentages of African-Americans and Hispanics in Three Intelligence Agencies Compared With Percentages in

the Federal Workforce and the Civilian Labor Force (fiscal years 1992-94)

African-American Hispanic

9/92 9/94 9/93 Civilian labor force

fed. govt. DIA NSA CIA fed. govt. DIA NSA CIA

0

5

10

15

20

Percent

Page 25 GAO/NSIAD-96-6 Intelligence Agencies
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Figure 2.3: Percentages of Asian-Pacifics and Native Americans in Three Intelligence Agencies Compared With

Percentages in the Federal Workforce and the Civilian Labor Force (fiscal years 1992-94)

Asian-Pacific Native American

9/92 9/94 9/93 Civilian labor force

fed. govt. DIA NSA CIA fed. govt. DIA NSA CIA

0

1

2

3

4

5

Percent

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Agency Directors Pledge

Improvements

In public statements made in congressional hearings, the directors of each

of the intelligence agencies acknowledged their agencies’ workforce

diversity shortcomings.7

 These officials stated that problems with

recruitment, promotion, and retention of minorities and women continue

to plague the work environment of intelligence agencies. Further, these

officials also pledged improvements in the diversity of their workforces

and related efforts in moving their respective agencies closer to the

civilian labor force guidelines in every category.

Agency Comments In commenting on a draft of this report, DOD concurred with our discussion

of EEO practices at NSA and DIA. CIA comments did not address EEO issues.

EEOC officials clarified comments we attributed to them, and we made

revisions as appropriate.

7

CIA, NSA, and DIA directors testified in a public hearing on September 20, 1994, before the House

Permanent Select Committee on Intelligence.

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Adverse Action Regulations, Except for

External Appeals, Are Similar to Those of

Other Federal Agencies

Although the intelligence agencies are exempt from key adverse action

statutes, their regulations (at CIA) and actual practices (at NSA and DIA) are

similar to those of other federal agencies in many ways. The internal

regulations at NSA and DIA are almost identical to standard federal

regulations. Further, our review of case files indicates that NSA and DIA are

closely following their regulations. NSA and DIA have statutory authority to

summarily remove employees in national security cases, but agency

implementing regulations still provide employees with basic protections.

The internal CIA regulations we were given access to are similar to those in

other agencies and provide some employee protections. However, the

Director of CIA has carte blanche authority to waive all protections and

summarily remove CIA employees. With respect to external appeals, only

military veteran employees at NSA and DIA can appeal to MSPB.

1

 No

employees at CIA can appeal to MSPB. There is no national security rationale

for the different treatment of veterans and nonveterans at the different

agencies.

Intelligence Agencies

Have Legal

Exemptions From

Federal Practices

Personnel at CIA, NSA, and DIA are exempt from key statutory provisions

that provide federal employees with certain protections in the course of

agency adverse actions. Specifically, all CIA employees and NSA and DIA

non-veteran employees are exempt from the provisions of 

5 U.S.C. 7511-7513 covering suspensions (for more than 14 days),

removals, and other actions. Therefore, employees at these agencies have

no statutory right to adverse action procedural protections including an

advance written notice; the opportunity to reply; the right to

representation; a final written decision; and, most importantly, an external

appeal to the MSPB.

NSA and DIA Internal

Practices Are Almost

Identical to Those of

Other Agencies

Adverse Actions at NSA

and DIA

NSA and DIA initiate adverse actions when employees have violated some

workplace standard or rule. Agency administrative and personnel

1

The term “military veteran employees,” refers to employees who were given preferences under the

Veterans Preference Act of 1944. These employees, also known as Preference Eligible, will be referred

to as veterans in the remainder of this report.

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regulations generally prescribe the acceptable employee code of conduct

and identify specific infractions that could lead to adverse actions or other

sanctions against the employee. Agencies consider a number of factors in

initiating adverse actions. For example, DIA suspension actions must

consider (1) repetition of offense, (2) seriousness of offense,

(3) short-term or long-term impact of offense, (4) effect of penalty on the

employee and other DIA employees, (5) effect on workload, (6) consistency

of penalty with similar offenses, and (7) specific sanctions required by

laws and regulations.

During calendar years 1992 through 1994, NSA and DIA initiated adverse

actions against 60 employees. Of these cases, 5 involved suspensions of

more than 14 days, 34 involved removals, and 21 cases involved a

resignation or retirement in lieu of an adverse action. In the latter 21 cases,

which were technically not adverse actions, the employee either resigned

or retired before or during adverse action proceedings. CIA did not provide

data on its adverse actions.

NSA and DIA Regulations

and Practices Include

Standard Employee

Protections

While NSA and DIA are exempt from 5 U.S.C. 7511-7513, they have

incorporated the same employee protections into agency personnel

regulations governing adverse actions. Written in language that is almost

identical to 5 U.S.C. 7513, these regulations entitle employees to

(1) advance notice, (2) an opportunity to reply, (3) legal representation,

and (4) a written final decision. Our review of 40 case files from 1993 and

1994 at these agencies showed that NSA and DIA closely complied with their

regulations.

In addition, NSA and DIA adverse action decisions were fully supported by

backup documentation. This documentation not only supported the

agency position on the facts of the case but also indicated that procedural

steps had been followed. For example, NSA and DIA case files had clear

documentation to prove delivery of key documents to the employee

(including copies signed by employees, registered mail receipts, and

memos to the file). In several NSA cases, there were statements, signed by

the employees, stating that they had reviewed their official case file on the

specific adverse action.

NSA and DIA appeared to have accommodated employees in many

instances. For example, NSA and DIA provided employees with extensions

(up to 30 days) to reply to agency charges. NSA and DIA considered

documents that were submitted late. For disability cases, both agencies

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sought alternative positions or disability retirement for the employees. In

addition, NSA and DIA have alcohol treatment or referral programs, which

were offered to employees in several cases.

NSA and DIA Summary

Removal Procedures Also

Include Employee

Protections

NSA and DIA have statutory authorities to summarily remove employees

when national security concerns arise in the course of adverse actions.

First, the directors of these agencies can remove employees whenever

(1) the action is in the interest of the United States and (2) procedures

prescribed in other provisions of law (i.e., their normal removal

procedures) cannot be invoked consistent with the national security.2

 The

directors’ decision is final and not subject to external appeal to MSPB.

3

Second, NSA and DIA (as well as other agencies)4 have statutory authority to

suspend and remove employees under 5 U.S.C. 7532.5

 This authority is to

be invoked only when necessary in the interest of national security. The

decisions of the NSA and DIA directors under 5 U.S.C. 7532 are final and may

not be appealed.

Under NSA and DIA regulations that implement their directors’ summary

removals and 5 U.S.C. 7532 removals, employees still have procedural

protections similar to those enjoyed by other federal employees under

5 U.S.C. 7513. Employees must be provided (a) a written statement of the

charges, (b) an opportunity to reply, and (c) a written decision. In

addition, under NSA and DIA director removals, employees can review

documentation relevant to their case. NSA and DIA have never used these

authorities to suspend or remove employees.

2

These authorities for NSA and DIA are contained in 50 U.S.C. 833 and 10 U.S.C. 1604(e), respectively.

3

Under 10 U.S.C. 1604(e), the DIA director’s summary removal decisions can be appealed to the

Secretary of Defense.

4

A number of other agencies are covered by this provision.

5

5 U.S.C. 7531 originally gave this authority to the Secretary of Defense. Pursuant to 5 U.S.C. 7531(9),

NSA and DIA were given this authority in May 1988 by presidential designation.

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CIA Internal

Regulations Are

Similar to Other

Agencies, Except for

DCI’s Carte Blanche

Authority

CIA Removal Regulations

Offer Some Employee

Protections

The CIA’s internal adverse action regulations provide employee protections

similar to those offered by other federal agencies, at least in cases of

removal.6

 The CIA personnel regulation calls for employees to get advance

notice of a proposed removal, at least 10 days to reply, and final notice of a

decision provided by the Director of Personnel (but not necessarily in

writing). Notably absent from the CIA regulation is the right to

representation provided to other federal employees by 5 U.S.C. 7513(b)(3).

CIA officials told us, however, that employees do have the right to counsel

and that many employees hire attorneys in such cases. CIA regulations also

include the right to an internal appeal, which allows employees to submit

their appeals in a sealed envelope to be opened only by the DCI.

We did not review CIA case files (as discussed on p. 15), so we were unable

to verify the extent to which CIA actually provides employees with any of

the protections noted in its personnel regulations. We were also unable to

verify whether employees are allowed representation by attorneys in

adverse action proceedings.

Employee Protections

Waived Under DCI’s Carte

Blanche Authority

The DCI has statutory authority to remove CIA employees whenever he or

she believes it necessary or advisable in the interest of the United States.

The DCI’s decisions are generally not reviewable outside the agency. Under

the CIA implementing regulation, the DCI has carte blanche authority to

remove employees and can override any employee protections. A section

of the regulation on “termination without procedures” lays out this broad

authority.7

6

While CIA officials allowed us to review their entire regulation on removing employees, they did not

allow us to fully review their regulations on other types of adverse actions, such as suspensions. The

limited information we saw on suspensions made no reference to employee protections similar to

those in 5 U.S.C. 7513.

7

According to the CIA’s personnel manual, the DCI authority to remove employees can be delegated to

lower level CIA officials as well.

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“Pursuant to statutory authority, an employee may be terminated at any time without

regard to any procedural steps set forth in this regulation or elsewhere when the DCI, at his

discretion, deems it necessary and advisable in the interest of the United States.”

According to the regulation, such “interests of the United States” do not

have to be related to national security. Further, the regulation states that

the DCI’s removal authority is not constricted, limited, affected, or

otherwise controlled by any of the procedures set forth in the regulation

or any other regulation, document, or law. The regulation also states that

the DCI’s authority abrogates any interest or privileges of any employee

that might otherwise be created or established by this regulation or any

other regulation, document, or law.

The CIA’s personnel regulation also exempts the DCI from accountability for

any removal decision. Under the regulation, the DCI’s decision to remove

an employee is entirely discretionary, and the reasons for the decision can

be withheld from anyone. The CIA regulation specifically states

“Notwithstanding any provision of this regulation, or any other regulation, document, or

law, the DCI need not provide to anyone the reasons for such termination if he decides not

to do so. Any decision not to provide the reasons for termination is entirely discretionary,

and a national security basis for such a decision is not required.”

We did not review case files (as discussed on p. 15), so we could not

determine the extent to which the DCI’s carte blanche authority has been

used to override employee protections enumerated in CIA personnel

regulations.

Comparison With NSA and

DIA Authorities

NSA and DIA personnel regulations do not provide the carte blanche

removal authority that CIA regulations confer on the DCI. As discussed, both

NSA and DIA directors have statutory authorities to summarily remove

employees, but these agencies’ implementing regulations provide for some

employee protections. In addition, the NSA and DIA summary removal

authorities, unlike the CIA’s authority, are linked to national security.

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Most Employees Have

No External Appeal to

MSPB

Appeals to MSPB Per 5 U.S.C. 7511-7513, most federal employees can appeal agency adverse

actions to MSPB. Appealable actions include suspensions of more than 14

days and removals. In such appeals, employees have a right to a hearing

and representation by an attorney or other representative, in accordance

with MSPB regulations.

NSA and DIA Veterans’

Appeals

Most employees at NSA and DIA have no right to appeal adverse actions to

MSPB. However, pursuant to the Veteran’s Preference Act, veterans (who

make up approximately 21 percent and 32 percent of NSA and DIA civilian

workforces) are entitled to appeal adverse actions to MSPB. According to

NSA and DIA regulations, when a final decision notice is issued to an NSA or

DIA veteran on a matter appealable to the MSPB, the veteran must be

provided (1) notice of the time frame for appeal and the address of the

appropriate MSPB office, (2) a copy of MSPB regulations, (3) an MSPB appeal

form, and (4) notice of appealable rights to a grievance procedure.

Based upon our review of related legislative history and our discussions

with agency officials, there are no national security reasons for the

distinction between veteran and nonveteran employees at NSA and DIA.

That is, veteran appeals to MSPB present the same risk to national security

as nonveteran appeals. According to DOD, the differentiation stems from

the Veteran’s Preference Act of 1944 and is thus based upon the debt this

nation owes its veterans and is not based on any conventional national

security analysis.

No CIA Employee Appeals

to MSPB

Regardless of whether they are veterans, CIA employees have no general

right to appeal adverse actions to MSPB. However, this lack of jurisdiction

has not stopped CIA employees from filing appeals in at least three cases in

the last 6 years. MSPB has initially entertained these cases and requested CIA

cooperation. CIA has uniformly responded that the DCI is neither required,

nor prepared, to have MSPB review agency decisions. In these three cases,

MSPB held that it lacked jurisdiction to hear the appeal and affirmed the CIA

decisions.

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Adverse Action Regulations, Except for

External Appeals, Are Similar to Those of

Other Federal Agencies

Again, our review of related legislative history and our discussions with

officials from CIA, NSA, and DIA did not yield any convincing rationale why

veteran appeals to MSPB should be treated differently based on whether the

veteran works at CIA, NSA, or DIA. CIA legal staff told us simply that CIA is

exempt from the Veterans Preference Act of 1944 and, for reasons of

national security, CIA employees can only appeal decisions to the DCI.

However, NSA and DIA officials asserted that adverse action appeals at all

three agencies raise equal risks to national security because each agency

deals with very sensitive information.

MSPB Review Limited The MSPB does entertain appeals from NSA and DIA veterans but generally

will not review agency determinations revoking security clearances. Since

security clearances are a mandatory condition of employment, loss of a

clearance can result in suspension or removal. In a case involving a

civilian Navy employee removed from his job when the Navy denied him a

security clearance, the U.S. Supreme Court found that the denial of a

clearance was not an enumerated adverse action subject to MSPB review.8

The Court stated that grant or denial of a security clearance is a sensitive

and inherently discretionary decision that MSPB was not qualified to judge.

In these types of cases, which can also include the revocation of security

clearances by nonintelligence agencies, the MSPB generally can only

determine whether the employee was granted appropriate procedural

protections.

Agency Comments

and Our Evaluation

CIA stated that, in removal decisions, the DCI is accountable to several

parties. First, the DCI is accountable to the President and Congress.

Second, the DCI is accountable to the Inspector General and the President’s

Intelligence Oversight Board, which might review employee complaints of

unfair removal. Our report accurately quotes the CIA regulation which

clearly indicates that the DCI is accountable to no one for removals. We

cannot verify CIA statements that it provides removal information to these

other parties because CIA did not provide us with access to case files or

other corroborating evidence.

DOD stated that NSA and DIA, despite exemptions from standard practices

regarding adverse actions, have attempted to mirror the intent of the

legislation to the maximum extent consistent with national security. DOD

further stated that NSA and DIA adequately protect employee rights as

compared to the protections offered by the MSPB.

8

Department of the Navy v. Egan, 484 U.S. 518 (1988).

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Adverse action protections for employees at CIA, NSA, and DIA could be

standardized with those of the rest of the federal government without

presenting an undue threat to national security. For many years, a

substantial number of NSA and DIA employees (i.e., veterans) have had the

same statutory adverse action protections as other federal employees. In

recent adverse actions at NSA and DIA, almost no case files contained

national security information. If CIA, NSA, and DIA employees were granted

standard federal adverse action protections, these agencies could protect

national security information by removing classified information from case

files and, in cases where that is not possible, by providing security

clearances to MSPB administrative judges and employee attorneys. Where

neither of these steps would be adequate to protect national security

information, these intelligence agencies could use their existing

authorities to summarily remove employees. These authorities are not

reviewable outside the agencies, so there would be no risk of disclosure of

classified information.

NSA and DIA

Illustrate That

Intelligence

Employees Can Have

Standard Federal

Protections

NSA and DIA experiences demonstrate that intelligence agencies can

provide their employees with standard protections against adverse

actions. As discussed in chapter 3, NSA and DIA adverse action practices are

very similar to those of other federal agencies. The internal practices at

NSA and DIA are almost identical to those laid out for the rest of the federal

government in 5 U.S.C. 7513. Veterans at NSA and DIA (who make up

approximately 21 and 32 percent of their respective civilian workforces),

have the same external appeal rights as other federal employees. While

officials from NSA and DIA told us that veteran appeals to MSPB were a risk

to national security, these agencies have never used their summary

removal authorities to prevent a veteran appeal from going to MSPB.

Further, the House Committee on Post Office and Civil Service, in a 1989

report discussing Civil Service Due Process Amendments, stated that it

was not aware of any problems due to the additional procedural

protections veterans receive under the Veterans’ Preference Act of 1944.

According to the committee report, “Permitting veterans in excepted

service positions [such as employees at NSA and DIA] to appeal to the Merit

Systems Protection Board when they face adverse actions has not crippled

the ability of agencies excepted from the competitive service to function.”

Applicability to CIA Our review did not identify any reason why the NSA and DIA experiences

would not be applicable to CIA as well. Regarding internal removal

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practices, aside from the DCI’s summary removal authority, the CIA

regulations are not substantially different from those outlined in section

7513. Regarding external appeals, employees of all three agencies have

access to classified information, the disclosure of which can do grave

damage to our national security. CIA suggested that its employees have

access to more sensitive information because of its clandestine operations

and its higher percentage of employees under cover. In contrast, NSA and

DIA officials said that, although individual cases would vary, the sensitivity

of intelligence information was equivalent across the three agencies. In

comparing its external adverse action practices with those at CIA, NSA

wrote to us

“Certainly, disciplinary or performance based proceedings at both agencies raise equal

risks to national security information and both agencies’ work involves obtaining foreign

intelligence information from extraordinarily sensitive and fragile intelligence sources and

methods.”

Recent NSA and DIA

Cases Raise Few

National Security

Concerns

We reviewed recent NSA and DIA cases to determine whether they

contained national security information. In doing so, we used an agency

definition of “national security” as those activities that are directly related

to the protection of the military, economic, and productive strength of the

United States, including the protection of the government in domestic and

foreign affairs, against espionage, sabotage, subversion, unauthorized

disclosure of intelligence sources and methods, and any other illegal acts

that adversely affect the national defense. If the information’s

unauthorized disclosure could reasonably be expected to cause damage to

the national security, it should be classified at the confidential level or

higher, in accordance with Executive Order 12356.1

We found that adverse action case files generally contained no national

security information. We reviewed all available NSA and DIA adverse action

cases for 1993 and 1994. Of these 40 cases, 39 cases (or 98 percent)

contained no classified national security information.2

 Only one file,

involving an employee removed for unsatisfactory performance, contained

classified information. In this case file, the employee’s poor performance

was documented in a memo that contained classified information.

1

Executive Order 12356 provides the basis for classifying national security information.

2

Three additional NSA cases from this period were not available to review for a variety of reasons. NSA

officials stated that one of these cases contained classified information, but we were unable to review

the file to verify this.

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The main reason that these files are void of classified material is that the

nature of the cases do not involve intelligence sources and methods. The

adverse actions were generally routine matters that any federal agency

might handle. For example, adverse actions were initiated for a variety of

reasons, including criminal misconduct, administrative misconduct,

financial misconduct, drug abuse, unsatisfactory performance, and loss of

security clearance. Depending on the nature of the adverse action, the

case files generally consisted of the following types of routine unclassified

documents: financial records, credit histories, medical evaluations,

attendance documents, time cards, leave letters, performance appraisals,

warning letters, work plans, police reports, criminal records, court

documents, and reports of security investigations. Even in the “security”

cases where the agency revoked an employee security clearance, the

documentation (related to criminal matters) was not related to national

security. That is, there were no cases where the employees were

suspected of purposefully compromising national security information.

NSA and DIA officials stated that the lack of classified information was due

to careful NSA and DIA efforts to remove classified information from the

case files. NSA and DIA seek to avoid exposure of classified information by

establishing, to the extent possible, an unclassified administrative record

that narrowly focuses the agency defense to the employees conduct.

Keeping national security information out of files even before the case

goes to the deciding official enables the employee’s attorney and the MSPB

administrative judge to see the same material the agency deciding official

sees. According to these agencies, they must also ensure there is enough

information in the file for the deciding official to make a defensible

decision. If such steps do not eliminate the need for classified information

to be used in the case, the agencies declassify such information in relevant

agency records.

CIA would not allow us to review case files, so we can make no judgments

on whether their adverse action cases contained classified national

security information.

In response to our observations, officials from CIA, NSA, and DIA stated that

all adverse action cases require that the agency establish how the

employee’s misconduct affects the efficiency of the agency by matching

performance or conduct standards against employee behavior. They stated

that sensitive information often permeates employee position descriptions.

Accordingly, they stated that such information must be protected from

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public disclosure, regardless of whether or not the information is

classified.

Our review indicated that the agencies have overstated the sensitivity of

the information contained in the vast majority of adverse action cases. If

the information was as sensitive as the agencies indicate, the agencies

would be required to classify it in accordance with their own security

procedures. Also, as discussed later, these agencies routinely release these

types of personnel records to external forums (e.g., MSPB, EEOC, or the

federal courts) in an unclassified form.

Agencies Could

Remove Classified

Information and

Provide Security

Clearances to Judges

and Attorneys

Agencies Could Remove

Classified Information

From Case Files

If subject to standard federal practices, the agencies could continue to

remove classified information from adverse action case files. As discussed

previously, NSA and DIA assert that they have been very diligent and

successful in keeping classified information out of adverse action case

files.

CIA, NSA, and DIA already have experience preparing case files for external

appeals in adverse action and/or EEO cases. In our review of case files at

MSPB, we found that CIA, NSA and DIA had all been able to successfully

support their case with documents at the unclassified level.3

 Several of

these documents were formerly classified, including employee position

descriptions, records of investigations, and related memoranda.

In our review of EEO case files at federal courts, we found similar instances

of declassified agency documents. For example, in one recent case, CIA

declassified several secret documents. While some sections had been

deleted from these documents, they still provide information on CIA case

officers such as types of postings, typical duties, types of sources

3

The CIA example was a retirement case. As discussed in chapter 3, CIA employees generally cannot

appeal to MSPB in adverse action cases.

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recruited, basis for performance appraisals, number of case officers in a

typical CIA station, and the importance of cover assignments. Assuming

that the CIA was careful in preparing these documents (since the files are

publicly available), this example shows that information on employee

performance in very sensitive intelligence operations can be converted to

the unclassified level.

Agencies Could Provide

Clearances to Judges and

Attorneys

If intelligence agencies were subject to standard adverse action practices,

they could also protect national security information by providing security

clearances to MSPB administrative judges and employee attorneys. Agency

officials have not provided any security clearances to MSPB administrative

judges or shared classified information with them; however, they stated

that this would be possible. MSPB officials noted that their Board members

and administrative judges go through rigorous background checks as part

of their nomination process.

The intelligence agencies already deal with administrative judges with

security clearances in EEO cases. According to officials, both CIA and the

Justice Department have processed security clearances for EEOC

administrative judges. All the agencies have been able to work with EEOC

administrative judges to conduct EEOC hearings while still protecting

national security information.

Intelligence officials have also dealt with employee attorneys with security

clearances in EEO cases. While NSA and DIA will not initiate security

clearance actions solely for the purpose of employee representation, CIA

officials said they maintain a list of cleared attorneys for their employees,

and the agency will process a clearance for an employee attorney. To date,

all of the agencies have been able to work with employee attorneys to

conduct EEOC hearings while still protecting national security information.

A recent EEO court case demonstrates that intelligence agencies can

provide employee attorneys with access to classified information and

agency employees without undue risk to national security. In this class

action case, CIA cleared several employee attorneys to the secret level and

provided them with access to approximately 4,000 classified documents.

In addition, CIA provided these attorneys with dedicated offices at CIA

Headquarters and provided them with secure communications. For

example, a special classified cable channel was established for privileged

and classified communications between the attorneys and CIA employees

worldwide.

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Agencies Question Our

Comparison of Adverse

Action Cases to EEO Cases

Officials from CIA, NSA and DIA took issue with our comparison of adverse

action cases with EEO cases, saying that EEO cases were not as sensitive

and, therefore, created fewer risks to national security. We disagree with

these comments because our review demonstrated that, while individual

cases will vary, the same types of information may appear in both adverse

action and EEO cases. For example, when a DIA employee filed an MSPB

complaint for prohibited personnel practices (discrimination) and found

out MSPB had no jurisdiction (because she was not a veteran), she

withdrew her case to pursue it through EEO channels. That is, the same

issue (based on the same evidence) could potentially be pursued through

either MSPB or EEOC. In fact, in fiscal year 1994 (the most recent data

available), 35.9 percent of EEOC cases involved adverse actions or

performance and 27.3 percent of MSPB cases involved discrimination.

As further evidence, NSA expressed deep concerns over the possible

release of classified information in some EEO cases when employees use

performance appraisals and job descriptions to make the point that they

should have received a benefit that went to another. In such cases, an

appeal to MSPB will present no more risk to national security than do

current appeals to EEOC.

Where Risks Remain,

Agencies Could Use

Their Summary

Removal Authorities

National Security Risks

Could Still Exist in Some

Cases

Some national security risks could remain even after case files have been

declassified and judges and attorneys have received security clearances. In

declassifying documents for MSPB, there is still some risk of public

disclosure of sensitive information as the parties advance their cases. For

example, in a recent veteran’s appeal to MSPB, NSA officials told us that

some significant national security information was improperly disclosed

through an inadvertent error.

In clearing judges and attorneys for access to classified information, there

may also be remaining risks. According to the agencies, people who do not

regularly deal with classified information often do not appreciate the

reasons that specific information is classified or the steps necessary to

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ensure that such information is not inadvertently disclosed. We found

evidence of this in our review of an EEO class action case involving CIA. An

undercover case officer alleged that the class action attorney “carelessly

used the words ’agency’ and ’station’ on the open telephone line” in the

country where she was actively operating.

Also, according to the agencies, employee attorneys may perceive it as

being in their interest to publicly disclose the information to use it for

leverage against the agencies. The government’s authority to prosecute

such a disclosure of classified information is of little solace once an

intelligence source or method is lost. Moreover, the government might not

pursue such a prosecution for fear that more classified information will be

revealed.

Further, there is a risk that an agency will forfeit its position to protect

national security information. According to NSA, the risk of disclosing

sensitive information must be accorded far greater weight than the merits

of the case when negotiating settlements. There may be cases in which

hearings would involve exposure of or unacceptable risk to national

security information. The agency’s only option in these situations might be

to settle the case on terms favorable to the employee. NSA officials told us

that such a case is now in the administrative process.

NSA and DIA Could Use

Summary Removal

Authorities

If NSA and DIA employee appeals to MSPB still presented unacceptable risks

to national security, these agencies could use their summary removal

authorities (as discussed in chapter 3). To date, NSA and DIA have never

used these authorities to suspend or remove employees. NSA and DIA

officials cited three reasons why they have never used these authorities:

• They believe that employees should be given their basic due process rights

whenever possible.

• They have been diligent in removing classified information from

supporting documentation in adverse actions cases going to MSPB.

• Few employees (only veterans) can appeal to MSPB, which greatly reduces

the need to use these summary authorities.

While these agency reasons imply that the issue of using these authorities

has never come up, that is not the case. NSA and DIA officials said they have

had cases (involving veterans eligible to appeal to MSPB) where their

agency would have used its director’s summary removal authority if the

employee had not chosen to resign. In at least one case, NSA officials, in

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hindsight, told us they now regret that they did not use this authority. In all

adverse actions against veterans, these agencies made a conscious

decision to not use their summary removal authorities and accept some

risk in allowing the employee to appeal to MSPB. NSA and DIA officials stated

that they allowed these appeals to go to MSPB in order to provide the

veterans with their right to appeal, as derived from the Veteran’s

Preference Act.

CIA Could Use Summary

Removal Authority

If its employees had standard federal protections against adverse actions,

CIA (like NSA and DIA) could prevent sensitive cases from reaching MSPB by

using the DCI’s summary removal authority (as discussed in chapter 3). CIA

implementing regulations, unlike NSA and DIA regulations, do not guarantee

any protections to employees, nor do they require a link to national

security. CIA officials stated that this authority, although rarely used in

recent years, has been used in cases not related to national security such

as reductions in force. We did not review CIA case files (as discussed on 

p. 15) so we cannot make judgments on the frequency or propriety of

cases where the director’s summary removal authority was used.

Agencies Question

Benefits and Costs of

External Appeal to

MSPB

Benefits of MSPB Appeal

Questioned

In response to our conclusion that standard employee protections could

be extended to intelligence agency employees, NSA officials questioned the

benefits of providing MSPB appeals since most agency adverse actions are

removals based on revocation of employee security clearances.4

 Given that

MSPB review of such cases is generally limited to verification that the

agency followed its own regulations and given that NSA follows those

regulations (both of which we verified), NSA officials said there would be

little significance in appealing to MSPB. NSA wrote to us that “there is no

reason to believe extending MSPB appeal rights to all NSA personnel would

be more than mere eye wash for the employees.”

4

Of the 40 adverse action cases we reviewed, 33 were NSA cases and 17 of these (or 52 percent of NSA

cases) involved revoking a security clearance as a reason for removal.

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DIA officials also questioned the significance of providing MSPB appeals to

all employees. While none of DIA’s employee removals were explicitly

based on revocation of security clearances, agency officials said that they

could have used that justification to remove many of the employees. That

is, in cases where employees were removed “for cause” related to criminal

offenses (e.g., drug use or fraud), DIA could have also revoked their

clearances and removed them for failure to meet a mandatory condition of

employment.5 DIA personnel staff said it was administratively easier to

remove employees “for cause” than to revoke their clearance. They added

that if the employees had recourse to MSPB, DIA would change its

administrative procedures to remove employees by revoking their

clearances, since MSPB generally cannot review the substance of security

clearance determinations. This new strategy might have worked only in

cases where removal was closely related to clearance issues, which

represents four of seven (or 57 percent) of the DIA adverse action cases we

reviewed.

CIA officials questioned the value of MSPB appeals, given their current

practices. According to CIA’s interpretation, there does not have to be a

link between the DCI’s summary removal authority and national security.

That is, the DCI’s discretion can be exercised whenever he or she finds it in

the generic “interests of the United States,” as opposed to the more

specific “national security interests of the United States.” Thus, even if CIA

employees could appeal adverse actions to MSPB, the DCI could effectively

preclude these appeals by exercising the summary removal authority. For

example, CIA officials told us that the DCI’s summary removal authority has

been used to implement reductions in force not related to national security

issues.

Increased Administrative

Costs

Given their view that external appeals to MSPB may have little or no real

benefit for employees, officials from CIA, NSA, and DIA were also concerned

about the added administrative costs to prepare for and participate in such

appeals. Agency officials stated that the burden to respond to increased

filings and the concomitant requirement to prepare agency files would be

enormous. NSA and DIA officials were particularly concerned about the

discovery process (in which employee attorneys can request large volumes

of documentation), because it was impossible to predict in advance how

much documentation will have to be declassified. NSA and DIA officials

were also concerned about clearance processing times (now averaging 

5

The ability to hold a security clearance is a mandatory condition of employment at all the intelligence

agencies.

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205 days) for judges and attorneys and the time it would add to adverse

action proceedings. Finally, agency officials were concerned about having

to provide classified work space and storage facilities for judges and

attorneys.6

Our observations from reviewing case files support these agency

comments. For example, MSPB appeal cases require a substantial amount of

additional preparation to defend the agency decision before the MSPB. In

addition, we recently testified on the federal redress system, saying that

because of the complexity of the system and the variety of the redress

mechanisms, it is inefficient, expensive, and time-consuming.7

 For

example, an employee alleging discrimination (i.e., a “mixed case”) can

“shop around” for the best decision by sequentially appealing agency

decisions to an MSPB administrative judge, the MSPB three-member Board,

EEOC, and the Office of the Special Counsel. At this point, an employee

who is still unsatisfied with the outcome can file a civil action in the

federal court system. This redress process can take years and cost an

agency thousands of dollars for a single case.

However, Congress provided the intelligence agencies with their

exemption from standard practices (e.g., MSPB appeals) based on national

security considerations, rather than administrative efficiency (i.e., the

ability to suspend or remove employees with minimal administrative

effort). Congress is currently studying the federal redress system and to

the extent that reform occurs, cost as well as administrative burdens may

be reduced. Any changes made in intelligence agency practices should be

consistent with changes Congress may make for all federal employees to

reduce the costs and time of the current system.

Linking CIA’s Authority to

National Security

If CIA, NSA, and DIA employees were to receive the same adverse action

protections as employees at other federal agencies, we think the directors

of the three intelligence agencies should retain their summary removal

authorities so they can continue to handle internally removals that could

potentially compromise national security information were appeals

permitted outside the agency. Should Congress take this action, however,

we do not think there would be a sound basis for the DCI continuing to

exercise the summary removal authority in cases not involving national

6

An MSPB spokesman, responding to our draft report, stated that MSPB could handle classified cases

differently to reduce the administrative costs. For example, he said they could treat all classified cases

as appellate cases and hear them in Washington. This would speed the process and reduce the number

of MSPB judges who would require security clearances.

7

Federal Employees Redress: An Opportunity for Reform (GAO/T-GGD-96-42, Nov. 29, 1995).

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security concerns as has occurred in the past, for example to implement

reductions-in-force.8

Our work has shown that there is no national security reason for the CIA

being treated differently than NSA or DIA, and employees at all three

agencies deal with highly sensitive intelligence information. Furthermore,

it is clear that the unique missions of all three agencies relate to national

security. Thus, if the DCI’s statutory summary removal authority were

amended to establish a link between exercise of the removal authority and

national security, it would parallel the authorities currently provided the

NSA and DIA directors.

Conclusion If Congress wants to provide CIA, NSA, and DIA employees with standard

protections against adverse actions that most other federal employees

enjoy, it could do so without unduly compromising national security as

long as the agencies maintain their summary removal authorities. To

effectively ensure that CIA employees enjoy these protections, Congress

could amend current legislation to explicitly link the CIA director’s

summary removal authorities to national security.

Agency Comments

and Our Evaluation

CIA and DOD (responding for NSA and DIA) did not concur with our

conclusion that MSPB appeal rights could be extended to all intelligence

agency employees for two reasons.

First, CIA and DOD stated that our report did not adequately consider the

national security risks associated with such a change in policy. The

agencies stated that their extensive experience reveals that the likelihood

of compromising classified information increases with any type of external

proceeding. We disagree because our report explicitly discusses different

types of risks to national security that could arise, including those related

to external proceedings. In addition, our report lays out a tiered process

where, depending on the level of risk involved, the agencies themselves

would determine what precautionary steps would be most appropriate.

Further, our report clearly acknowledges that there may still be some

national security cases in which summary removal (without appeal) will

be appropriate.

8

As discussed previously, the DCI’s statutory removal authority is not explicitly linked to national

security, and the CIA’s implementing regulation states directly that there need not be a national

security reason for removal. Although the Supreme Court has suggested that the DCI’s summary

removal authority is linked to national security, neither it nor the lower federal courts have directly

addressed this issue.

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Second, CIA and DOD stated that our report underestimated the

administrative costs of allowing appeals to the MSPB. While we never

attempted to estimate these costs, we agree that there would be additional

administrative burdens if Congress were to extend MSPB appeals to all

intelligence employees. However, Congress provided these agencies with

exemptions to standard federal policies based on national security

considerations, not to achieve administrative efficiencies.

EEOC had no comments on our findings regarding intelligence agencies.

However, it disagreed with our comments, based on previous GAO

testimony, that aspects of the federal redress system are inefficient,

time-consuming, and expensive. We would note that Congress and the

executive branch are currently considering ways to make this process

more efficient and effective and that our testimony did not recommend

any abridgement of employees’ rights. MSPB declined to provide comments

on our report.

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Comments From the Central Intelligence

Agency

Note: GAO comments

supplementing those in the

report text appear at the

end of this appendix.

Now on p. 32.

Now on p. 32.

See comment 1.

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Agency

See comment 2.

Now on pp. 6, 43, and 45.

See comment 3.

Now on pp. 5, 36, and 45.

See comment 4.

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Agency

See comment 5.

Now on p. 45.

See comment 6.

See comment 7.

See pp. 38-40.

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Agency

See p. 40.

Now on pp. 43-44.

See comment 8.

See p. 43.

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Agency

See comment 9.

See comment 10.

See comment 11.

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Comments From the Central Intelligence

Agency

The following are GAO’s comments on the Central Intelligence Agency’s

(CIA) letter dated January 18, 1996.

GAO Comments 1. Our report accurately quotes the CIA regulation that clearly indicates

that the Director of Central Intelligence (DCI) is accountable to no one for

removals. We cannot verify CIA statements that it provides such

information to the President and Congress because CIA did not provide us

with access to case files or other corroborating evidence.

2. The CIA removal regulations do not mention any procedures whereby

employees who believe they have been removed unfairly may raise the

issue to the Inspector General or the President’s Intelligence Oversight

Board. We cannot verify CIA statements that CIA employees have these

redress avenues because CIA would not provide us with access to case files

or other corroborating evidence.

3. We deleted any reference to CIA summary removals as “routine” in

accordance with CIA’s comments. However, we followed up with CIA

officials on these comments, and they confirmed that in the past, the DCI’s

summary removal authority has been used to implement reductions in

force not related to national security issues.

4. As CIA states, the sensitivity of classified information differs depending

on the mission and functions of the particular agency involved. Even more

important, the level of sensitivity varies with the duties of every individual,

so a case-by-case analysis is most appropriate. For example, while some

intelligence agency employees conduct clandestine operations at foreign

locations, other employees man gaurdposts at headquarters. The access to

sensitive information would vary greatly between these two types of

positions. Furthermore, and contrary to CIA’s comment that our report

concludes “categorically” that the Merit Systems Protection Board (MSPB)

can hear adverse action cases, our report lays out a tiered process where,

depending on the level of risk involved in individual cases, the agencies

themselves would determine what cautionary procedures would be most

appropriate.

5. We modified the text to include CIA comments that CIA has more

clandestine operations and a higher percentage of employees under cover

than the National Security Agency (NSA) and the Defense Intelligence

Agency (DIA). We acknowledge that some CIA activities, particularly

clandestine collection operations, are extremely sensitive and dangerous.

Page 53 GAO/NSIAD-96-6 Intelligence Agencies
Appendix I 

Comments From the Central Intelligence

Agency

However, based upon highly classified GAO work involving NSA and DIA and

comments from these agencies on this report, we believe these agencies

have some specialized programs that are equivalent to CIA in terms of

sensitivity and danger.

6. We continue to believe that the CIA’s summary removal authority should

be linked to national security. This is not based on a goal that the CIA, NSA,

and DIA should be treated equivalently. The summary removal authorities

were conferred on CIA, as well as NSA and DIA, because of the sensitive

national security work they perform. This is what differentiates them from

most other federal agencies who do not possess this unusual authority and

are governed by the laws that generally apply to federal employees,

including those conferring appeal rights to independent tribunals such as

MSPB. Accordingly, we see no basis for CIA employees being treated

differently than other federal employees when national security is not at

issue.

7. Our report fully recognizes the national security cost associated with

MSPB reviews. Based on agency concerns, we included a section that

specifically describes the types of national security risks involved. As

mentioned in comment 4, our report lays out a tiered process where,

depending on the level of risk involved, the agencies themselves would

determine what cautionary procedures would be most appropriate. In

addition, we clearly acknowledge that there may be some national security

cases in which summary removal will be appropriate, with no outside

review. Nevertheless, the later cases are probably rare. We are at a

disadvantage commenting on the sensitivity of CIA cases because we were

not afforded access to their case files; but our review of NSA and DIA cases

showed that 98 percent of adverse action case files contained no classified

material.

8. We modified our report to add additional examples of administrative

costs that CIA, NSA, and DIA would incur to clear judges and attorneys,

provide classified storage for judges and attorneys, and produce

unclassified case files.

9. The legislative history of the 1992 amendments to the National Security

Act of 1947, as amended, contains no substantive discussion of the DCI’s

termination authority. Thus, there is no indication that Congress debated

this issue at all.

Page 54 GAO/NSIAD-96-6 Intelligence Agencies
Appendix I 

Comments From the Central Intelligence

Agency

10. Government audit standards require that our audit reports include any

factors that significantly limited the scope or conduct of our review.

Without access to CIA’s complete personnel regulations and agency case

files, we were severely hampered in our efforts to compare CIA not only

with other federal agencies, but with its sister intelligence agencies as

well.

11. We disagree with CIA assertions that we lack jurisdiction to examine

the topics covered in this report. Under the General Accounting Act of

1980, amending the Budget and Accounting Act of 1921, and the Legislative

Reorganization Act of 1970, GAO has general audit authority over CIA

activities. The General Accounting Office Act preserved the audit

exemption set forth in the CIA Act of 1949 covering unvouchered CIA

expenditures. It also added another provision that allows the President to

exempt from audit unvouchered financial transactions about sensitive law

enforcement investigations if an audit would expose the identifying details

of an active investigation or endanger investigative or domestic

intelligence sources involved in the investigation. It should be emphasized,

however, that this new exemption only further limited our authority to

audit CIA unvouchered expenditures. It did nothing to restrict our audit

authority over vouchered expenditures. We think our audit of intelligence

agency personnel practices falls within our general audit authority, and

has nothing to do with auditing unvouchered expenditures. Regarding the

Intelligence Oversight Act of 1980, while it does provide the intelligence

committees with primary oversight over intelligence activities, it neither

precludes other committees from examining intelligence issues related to

their jurisdiction, nor, in any way, restricts our general audit authority.

This is consistent with the Senate and House Rules describing the

authority and scope of operations of the intelligence committees. Both

state that other congressional committees can review intelligence

activities that directly affect matters within their jurisdiction. We believe

the House Civil Service Subcommittee, the requester for this report,

clearly has authority to review intelligence agency personnel questions

relating to the Equal Employment Opportunity (EEO) and adverse actions.

Page 55 GAO/NSIAD-96-6 Intelligence Agencies
Appendix II 

Comments From the Department of Defense

Note: GAO comments

supplementing those in the

report text appear at the

end of this appendix.

See comment 1.

Page 56 GAO/NSIAD-96-6 Intelligence Agencies
Appendix II 

Comments From the Department of Defense

See comment 2.

See comment 3.

See comment 4.

See comment 5.

Page 57 GAO/NSIAD-96-6 Intelligence Agencies
Appendix II 

Comments From the Department of Defense

Page 58 GAO/NSIAD-96-6 Intelligence Agencies
Appendix II 

Comments From the Department of Defense

The following are GAO’s comments on the Department of Defense’s (DOD)

letter dated February 2, 1996.

GAO Comments 1. We modified the text to expand upon the concerns expressed by DOD.

Our report has a section that specifically describes the types of national

security risks involved. We lay out a tiered process where, depending on

the level of risk involved, the agencies themselves would determine what

cautionary procedures would be most appropriate. In addition, we

acknowledge that there may be some national security cases where

summary removal would be appropriate, with no outside review.

Nevertheless, we expect that the latter cases would be rare. Our review of

NSA and DIA cases, found that 98 percent of adverse action case files

contained no classified material.

2. We modified the text in light of DOD’s comments. However, the key

point, which DOD officials agreed with, is that nonveterans present no

greater national security risk than veterans. Since NSA and DIA have a

proven record of dealing with veteran appeals to MSPB, they could also do

so for nonveterans. Along these lines, we believe CIA could also deal with

appeals to MSPB.

3. DOD raises a legitimate point that the NSA and DIA directors’ summary

removal authority cannot be used for lesser sanctions, such as

suspensions of less than 14 days, or reductions in pay or grade, or furlough

for 30 days or less. We believe the agencies could still suspend employees

under 5 U.S.C. 7532(a) without outside review, but this would not cover

reductions in pay or grade, or furloughs, which are appealable to MSPB. If

Congress were to extend MSPB appeal rights to intelligence agency

personnel, this is one of the implementing details it would have to resolve,

perhaps by expanding the directors’ summary removal authorities to lesser

sanctions, but only in rare national security cases.

4. While DOD is correct that the limitations of the directors’ summary

removal authority could lead to more severe sanctions, it could also lead

to less severe sanctions. Actual cases from the period we reviewed

(1993-94), indicate that it is not as large of a problem as DOD implies. For

example, there were no reductions in grade or pay, or furloughs at NSA or

DIA, and no suspensions at DIA. Regarding NSA suspensions, there were five

suspensions greater than 14 days (i.e., potentially appealable to MSPB). In

three of these five suspensions, NSA could have reduced the sanction

slightly (by 1-6 days) to make the case exempt from MSPB review. The two

Page 59 GAO/NSIAD-96-6 Intelligence Agencies
Appendix II 

Comments From the Department of Defense

other suspensions (one was for 60 days and one was indefinite) were for

serious offenses where removal would be fully justified under NSA

regulations.

5. We modified the text to expand on DOD concerns about MSPB related

administrative costs, which we agree are a legitimate concern. However,

our key point remains that Congress provided the intelligence agencies

with exemptions from standard personnel practices for reasons of national

security. There is no evidence in the legislative histories of these

exemptions to indicate that Congress provided the exemptions to

minimize the administrative burden at these agencies. In addition, as noted

in the report, these agencies already deal with such costs in MSPB cases

(for veteran employees) and EEO cases before EEOC and the courts (for all

employees).

Page 60 GAO/NSIAD-96-6 Intelligence Agencies
Appendix III 

Comments From the Equal Employment

Opportunity Commission

Note: GAO comments

supplementing those in the

report text appear at the

end of this appendix.

Now on pp. 21-22.

See comment 1.

Page 61 GAO/NSIAD-96-6 Intelligence Agencies
Appendix III 

Comments From the Equal Employment

Opportunity Commission

See comment 2.

Page 62 GAO/NSIAD-96-6 Intelligence Agencies
Appendix III 

Comments From the Equal Employment

Opportunity Commission

Page 63 GAO/NSIAD-96-6 Intelligence Agencies
Appendix III 

Comments From the Equal Employment

Opportunity Commission

The following are GAO’s comments on the Equal Employment Opportunity

Commission’s (EEOC) letter dated December 18, 1995.

GAO Comments 1. We modified the text to more accurately reflect EEOC’s position and

included the examples they cite.

2. We modified our report to add additional evidence. Our work related to

EEOC and MSPB has surfaced a number of shortcomings with the federal

redress process. For more details that support our position, see the full

text of our testimony, Federal Employee Redress: An Opportunity for

Reform (GAO/T-GGD-96-42, Nov. 29, 1995). The purpose of our testimony was

not to recommend any abridgements of employees’ rights that would

result in fewer protections than are afforded workers in the private sector.

Rather, at a time when civil service is undergoing renewed scrutiny by the

executive branch and Congress, we suggested that the redress system, like

other facets of civil service such as performance management and the

retirement system, be studied to look for ways to make it more efficient

and effective.

Page 64 GAO/NSIAD-96-6 Intelligence Agencies
Appendix IV 

Major Contributors to This Report

National Security and

International Affairs

Division, Washington,

D.C.

Gary K. Weeter

Stephen L. Caldwell

Ronald D. Leporati

Mae F. Jones

General Government

Division, Washington,

D.C.

Anthony P. Lofaro

Office of the General

Counsel, Washington,

D.C.

Richard L. Seldin

Page 65 GAO/NSIAD-96-6 Intelligence Agencies
Appendix IV 

Major Contributors to This Report

Page 66 GAO/NSIAD-96-6 Intelligence Agencies
Related GAO Products

Veterans’ Preference: Data on Employment of Veterans (GAO/GGD-96-13,

Feb. 1, 1996).

Military Equal Opportunity: Problems With Services’ Complaint Systems

Are Being Addressed by DOD (GAO/NSIAD-96-9, Jan. 26, 1996).

Federal Employee Redress: An Opportunity for Reform (GAO/T-GGD-96-42,

Nov. 29, 1995).

Military Equal Opportunity: Certain Trends in Racial and Gender Data May

Warrant Further Analysis (GAO/NSIAD-96-17, Nov. 17, 1995).

Equal Employment Opportunity: Women and Minority Representation at

Interior, Agriculture, Navy, and State (GAO/GGD-95-211, Sept. 29, 1995).

Merit Systems Protection Board: Mission Performance, Employee

Protections, and Working Environment (GAO/GGD-95-213, Aug. 15, 1995).

Equal Opportunity: DOD Studies on Discrimination in the Military

(GAO/NSIAD-95-103, Apr. 7, 1995).

Background Investigations: Impediments to Consolidating Investigations

and Adjudicative Functions (GAO/NSIAD-95-101, Mar. 24, 1995).

Security Clearances: Consideration of Sexual Orientation in the Clearance

Process (GAO/NSIAD-95-21, Mar. 24, 1995).

Federal Affirmative Employment: Better Guidance Needed for Small

Agencies (GAO/GGD-94-71, July 7, 1994).

Federal Personnel: The EEO Implications of Reductions-in-Force

(GAO/T-GGD-94-87, Feb. 1, 1994).

EEOC: An Overview (GAO/T-HRD-93-30, July 27, 1993).

DOD Special Access Programs: Administrative Due Process Not Provided

When Access Is Denied or Revoked (GAO/NSIAD-93-162, May 5, 1993).

Affirmative Employment: Assessing Progress of EEO Groups in Key Federal

Jobs Can Be Improved (GAO/GGD-93-65, Mar. 8, 1993).

Page 67 GAO/NSIAD-96-6 Intelligence Agencies
Related GAO Products

Security Clearances: Due Process for Denials and Revocations by Defense,

Energy, and State (GAO/NSIAD-92-99, May 6, 1992).

Federal Workforce: Agencies’ Estimated Costs for Counseling and

Processing Discrimination Complaints (GAO/GGD-92-64FS, Mar. 26, 1992).

Federal Workforce: Continuing Need for Federal Affirmative Employment

(GAO/GGD-92-27BR, Nov. 27, 1991). Testimony on same topic (GAO/T-GGD-92-2,

Oct. 23, 1991).

Due Process: Procedures for Unfavorable Suitability and Security

Clearance Actions (GAO/NSIAD-90-97, Apr. 23, 1990).

(701048) Page 68 GAO/NSIAD-96-6 Intelligence Agencies
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