B-138790, OCT 8, 1971, 51 COMP GEN 199

B-138790, OCT 8, 1971, 51 COMP GEN 199

OFFICERS AND EMPLOYEES - TRAINING - SUBVERSIVE ACTIVITIES PROHIBITION - DETERMINATION OVERSEAS IN MAKING A DETERMINATION WHETHER THE PROHIBITION IN 5 U.S.C. 4107(A) AGAINST THE TRAINING OF EMPLOYEES BY, IN, OR THROUGH A NON-GOVERNMENT FACILITY WHICH TEACHES OR ADVOCATES THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE; OR BY OR THROUGH AN INDIVIDUAL WHOSE LOYALTY IS IN DOUBT APPLIES TO FOREIGN ORGANIZATIONS AND INDIVIDUALS IN FOREIGN AREAS, THE DEPARTMENT OF DEFENSE MAY DELEGATE THE AUTHORITY GRANTED AGENCY HEADS BY EXECUTIVE ORDER 11348, DATED APRIL 20, 1967, TO DETERMINE THE ELIGIBILITY OF A FOREIGN GOVERNMENT OR AN INTERNATIONAL ORGANIZATION TO PROVIDE TRAINING TO A MAJOR THEATRE OR LOCAL COMMANDER, SUBJECT TO CONSULTATION WITH THE DEPARTMENT OF STATE AND OTHER APPROPRIATE FEDERAL AGENCIES IN THE AREA, AND MAY ALSO PROVIDE THAT THE ELIGIBILITY OF NONCITIZENS MAY BE DETERMINED FROM SECURITY FILES IN THE LOCAL OR THEATRE LEVEL SINCE APPLYING THE PROCEDURES IN 5 CFR 410.504 TO DETERMINE SECURITY ELIGIBILITY IN THE UNITED STATES WOULD BE INEFFECTIVE.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, OCTOBER 8, 1971:

THIS IS IN FURTHER REFERENCE TO YOUR LETTER OF JULY 14, 1971, AND ENCLOSURE, IN WHICH YOU STATE THAT YOU HAVE BEEN ASKED BY THE DEPARTMENT OF DEFENSE WHETHER THE SECURITY-REQUIREMENT PROVISIONS IN SECTION 5-2C(2) AND (4) OF FEDERAL PERSONNEL MANUAL CHAPTER 410 PERTAIN TO NON-UNITED STATES GOVERNMENT FACILITIES LOCATED IN OVERSEAS AREAS. IT IS THE DEPARTMENT'S VIEW THAT THE REQUIREMENTS APPEAR TO BE DIRECTED TO NON- GOVERNMENT FACILITIES IN THE UNITED STATES.

THE ABOVE-CITED PROVISIONS OF THE FPM ALSO APPEAR AS SECTION 410.504 OF THE TRAINING REGULATIONS, PART 410, TITLE 5 OF THE CODE OF FEDERAL REGULATIONS, IMPLEMENTING CHAPTER 41 OF TITLE 5, UNITED STATES CODE.

5 U.S.C. 4107(A) PROVIDES:

APPROPRIATIONS OR OTHER FUNDS AVAILABLE TO AN AGENCY ARE NOT AVAILABLE FOR PAYMENT FOR TRAINING AN EMPLOYEE -

(1) BY, IN, OR THROUGH A NON-GOVERNMENT FACILITY WHICH TEACHES OR ADVOCATES THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE; OR

(2) BY OR THROUGH AN INDIVIDUAL CONCERNING WHOM DETERMINATION HAS BEEN MADE BY A PROPER GOVERNMENT ADMINISTRATIVE OR INVESTIGATORY AUTHORITY THAT, ON THE BASIS OF INFORMATION OR EVIDENCE DEVELOPED IN INVESTIGATIONS AND PROCEDURES AUTHORIZED BY LAW OR EXECUTIVE ORDER, THERE EXISTS A REASONABLE DOUBT OF HIS LOYALTY TO THE UNITED STATES.

THE APPLICABLE REGULATIONS 5 CFR 410.504 NOW PROVIDE:

SEC 410.504 PROHIBITION OF TRAINING THROUGH NON-GOVERNMENT FACILITIES ADVOCATING OVERTHROWING OF THE GOVERNMENT BY FORCE OR VIOLENCE.

(A) WITH RESPECT TO TRAINING BY, IN, OR THROUGH AN ORGANIZATION, THE REQUIREMENTS OF SECTION 4107(A) OF TITLE 5, U.S.C. ARE MET IF IT IS ASCERTAINED THAT THE ORGANIZATION IS NOT INCLUDED IN THE LIST OF ORGANIZATIONS DESIGNATED BY THE ATTORNEY GENERAL PURSUANT TO SECTION 12 OF EXECUTIVE ORDER 10450.

(B) WITH RESPECT TO TRAINING CONDUCTED BY AN INDIVIDUAL WITH WHOM CONTRACTUAL OR OTHER ARRANGEMENTS ARE MADE DIRECTLY, THE REQUIREMENTS OF SECTION 4107(A) OF TITLE 5, U.S.C. ARE MET IF BOTH OF THE FOLLOWING CONDITIONS ARE MET:

(1) IT IS ASCERTAINED THAT THE INVESTIGATIVE FILES OF THE COMMISSION CONTAIN NO RECORD THAT A DETERMINATION HAS BEEN MADE THAT A REASONABLE DOUBT EXISTS CONCERNING THE INDIVIDUAL'S LOYALTY TO THE GOVERNMENT OF THE UNITED STATES. SEARCH OF THE INVESTIGATIVE FILES OF THE COMMISSION SHALL BE MADE BEFORE CONTRACTING WITH OR OTHERWISE ARRANGING FOR THE SERVICES OF INDIVIDUALS FOR TRAINING, EXCEPT THAT IN EMERGENCY SITUATIONS, THE SEARCH SHALL BE MADE AS SOON AS POSSIBLE.

(2) SUBJECT TO THE EXCEPTIONS STATED IN THIS SUBPARAGRAPH, THE INDIVIDUAL EXECUTES AN AFFIDAVIT, CERTIFICATE, OR EXPRESS CONTRACTUAL WARRANTY THAT HE DOES NOT TEACH OR ADVOCATE THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE. THIS CONDITION DOES NOT APPLY (I) TO AN INDIVIDUAL WHO PERFORMS TRAINING UNDER ORAL OR OTHER INFORMAL ARRANGEMENTS FOR PERIODS OF 16 HOURS OR LESS WITHIN A SINGLE PROGRAM; OR (II) TO AN INDIVIDUAL WHO PERFORMS TRAINING WITHOUT PAY BY THE GOVERNMENT (WHETHER OR NOT THE GOVERNMENT PROVIDES PAYMENT OR REIMBURSEMENT FOR TRAVEL AND SUBSISTENCE INCIDENT TO THE TRAINING).

IT IS STATED IN YOUR LETTER THAT THE DEPARTMENT OF DEFENSE POINTS OUT THAT TO DETERMINE THAT AN ORGANIZATION IS NOT ON THE ATTORNEY GENERAL'S LIST UNDER EXECUTIVE ORDER 10450 DOES NOT APPEAR APPROPRIATE FOR ORGANIZATIONS LOCATED IN HOST COUNTRIES WHERE UNITED STATES FORCES ARE LOCATED, AS THE ATTORNEY GENERAL'S LIST DOES NOT INCLUDE ORGANIZATIONS LOCATED IN HOST COUNTRIES. FURTHER, THE SEARCH OF INVESTIGATIVE FILES OF THE COMMISSION TO ASCERTAIN THAT NO DETERMINATION OF A REASONABLE DOUBT OF LOYALTY HAS BEEN MADE OF A NON-GOVERNMENT INDIVIDUAL PERFORMING TRAINING APPEARS UNLIKELY TO BE PRODUCTIVE WITH RESPECT TO NON-UNITED STATES CITIZENS IN FOREIGN AREAS.

THE DEPARTMENT SAYS (1) THAT IT WOULD LIKE AUTHORITY TO PERMIT THE DETERMINATION OF THE ELIGIBILITY OF A FOREIGN NON-GOVERNMENT INSTITUTION TO PROVIDE TRAINING SERVICES TO BE MADE BY THE MAJOR THEATER OR LOCAL COMMANDER, SUCH DETERMINATION TO BE MADE IN CONSULTATION WITH THE DEPARTMENT OF STATE AND OTHER APPROPRIATE FEDERAL AGENCIES IN THE AREA; AND (2) THAT INSTEAD OF A SEARCH OF THE COMMISSION'S INVESTIGATIVE FILES WITH RESPECT TO NON-UNITED STATES CITIZENS IN FOREIGN AREAS IT WOULD SEEM MORE REASONABLE TO REQUIRE A REVIEW OF SECURITY FILES IN THE LOCAL OR THEATER LEVEL. YOU POINT OUT THAT THE PRESENT REGULATIONS SET FORTH THE PROCEDURES SPECIFIED IN OUR DECISION OF JUNE 22, 1959, 38 COMP. GEN. 857.

THE BASIC QUESTION RAISED BY YOU IS WHETHER THE ALTERNATIVE PROCEDURE SUGGESTED BY THE DEPARTMENT OF DEFENSE FOR FOREIGN ORGANIZATIONS AND INDIVIDUALS IN FOREIGN AREAS WILL BE ACCEPTED BY OUR OFFICE AS SUFFICIENT TO PROTECT CERTIFYING OFFICERS WHO CERTIFY PAYMENTS FOR TRAINING THROUGH SUCH FACILITIES.

IN RESPECT TO "(1)" ABOVE, THE REQUEST OF THE DEPARTMENT FOR AUTHORITY TO DETERMINE ELIGIBILITY, SECTION 4101(6) OF TITLE 5, U.S.C. INCLUDES IN THE DEFINITION OF "NON-GOVERNMENT FACILITY" THE FOLLOWING:

(B) A FOREIGN GOVERNMENT OR INTERNATIONAL ORGANIZATION, OR INSTRUMENTALITY OF EITHER, WHICH IS DESIGNATED BY THE PRESIDENT AS ELIGIBLE TO PROVIDE TRAINING UNDER THIS CHAPTER;

THE PRESIDENT, BY EXECUTIVE ORDER 11348 DATED APRIL 20, 1967, DELEGATED THE AUTHORITY TO DETERMINE ELIGIBILITY UNDER "(B)" ABOVE TO THE HEAD OF EACH AGENCY AFTER ADVICE HAS BEEN OBTAINED FROM THE DEPARTMENT OF STATE. THUS THE PROPOSAL OF THE DEPARTMENT OF DEFENSE TO DETERMINE ELIGIBILITY IN THE MANNER INDICATED IS CONSISTENT THEREWITH AND ACCEPTABLE.

CONCERNING "(2)" ABOVE, THE REQUEST FOR PERMISSION TO SUBSTITUTE A REVIEW OF SECURITY FILES AT THE LOCAL OR THEATER LEVEL IN PLACE OF A SEARCH OF THE COMMISSION'S INVESTIGATIVE FILES, THE BASIS FOR THE REQUEST IS THE PROBABILITY THAT THE SECURITY FILES AT THE LOCAL LEVEL WOULD BE MORE PRODUCTIVE THAN A SEARCH OF INVESTIGATIVE FILES OF THE COMMISSION. THIS SEEMS REASONABLE AND WE WOULD OFFER NO OBJECTION THERETO.