[Senate Hearing 107-294]
[From the U.S. Government Publishing Office]
. S. Hrg. 107-294
ISSUES SURROUNDING THE USE OF POLYGRAPHS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
APRIL 25, 2001
__________
Serial No. J-107-16
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JEFF SESSIONS, Alabama RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas CHARLES E. SCHUMER, New York
MITCH McCONNELL, Kentucky RICHARD J. DURBIN, Illinois
MARIA CANTWELL, Washington
Sharon Prost, Chief Counsel
Makan Delrahim, Staff Director
Bruce Cohen, Minority Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 87
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 2
WITNESSES
Capps, Michael H., Deputy Director for Developmental Programs,
Defense Security Service, Alexandria, Virginia................. 5
Iacono, William G., Professor, Department of Psychology,
University of Minnesota, Minneapolis, Minnesota................ 8
Keifer, Richard W., Past President, American Polygraph
Association, Apopka, Florida................................... 68
Smith, Jeffrey H., Partner, Arnold and Porter, Washington, D.C... 15
Zaid, Mark S., Esq., Counsel, Lobel, Novins and Lamont,
Washington, D.C................................................ 19
QUESTIONS AND ANSWERS
Responses of Michael H. Capps to questions submitted by Senator
Leahy.......................................................... 95
Responses of Michael H. Capps to questions submitted by Senator
Grassley....................................................... 100
Responses of William G. Iacono to questions submitted by Senator
Leahy.......................................................... 101
Responses of William G. Iacono to questions submitted by Senator
Grassley....................................................... 103
Responses of Richard W. Keifer to questions submitted by Senator
Leahy.......................................................... 104
Responses of Richard W. Keifer to questions submitted by Senator
Grassley....................................................... 105
Responses of Mark S. Zaid to questions submitted by Senator Leahy 105
Responses of Mark S. Zaid to questions submitted by Senator
Grassley....................................................... 109
SUBMISSIONS FOR THE RECORD
Mallah, Mark E., former Federal Bureau of Investigation Special
Agent, statement............................................... 89
Maschke, George W., Co-founder of AntiPolygraph.org, statement... 91
Renucci, Pascal, former government defense contractor employee,
statement...................................................... 92
Roche, William, Detective, statement............................. 94
ISSUES SURROUNDING THE USE OF POLYGRAPHS
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WEDNESDAY, APRIL 25, 2001
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:03 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch, Specter, and Durbin.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. I would like to welcome everybody to this
Judiciary Committee hearing on issues surrounding the use of
polygraphs as a counterintelligence screening tool. We have a
number of distinguished witnesses with us here today, and on
behalf of the Committee, I want to thank all of you for being
here.
Earlier this year, we all became aware of a very disturbing
situation at the FBI where one of its agents, Robert Hanssen,
was accused of being a Russian spy. The alleged security
compromises are vast and, if true, are severely damaging to our
National security. In the wake of the Hanssen case, the FBI
instituted new interim procedures to improve its internal
security. FBI Director Freeh has appointed William Webster to
lead a comprehensive internal security review at the FBI and to
recommend more permanent measures to improve internal security.
The interim security measures already implemented include
the use of polygraphs. Now, it is quite possible that the
permanent changes to FBI's internal security regime will
include polygraphs in one way or another.
I see this hearing as an important first step in evaluating
the changes occurring at the FBI. I expect to hear from Judge
Webster in the future to discuss this ongoing evaluation and
recommendation. I would also anticipate that, at the
appropriate time, we would hear from Director Freeh concerning
the decisions the FBI will make based upon the work of the
Webster Commission.
The purpose of today's hearing is to take the initial step
of educating the Judiciary Committee on polygraphs, their
accuracy and reliability, as well as the policy and potential
legal issues that may arise from the use of polygraphs as a
screening tool in the counterintelligence context. This should
be helpful to members and staff as we evaluate whatever new
internal security plan the FBI decides to implement.
There is a wide variety of opinions and research on the use
of polygraphs. There are those who believe they are completely
unreliable and actually detrimental to security. Others see
polygraphs as an important tool in an overall security program.
Today, we will begin to look at the science and policy behind
the use of polygraphs as a counterintelligence tool.
For myself, I appreciate the complexities of this issue. As
a former Chairman of the Labor Committee, or as it is now
called, the HELP Committee, I have some experience with the use
of polygraphs in private sector employment settings. Many
members and I were concerned with the lack of uniform standards
and the other abuses that were occurring with employment-
related polygraphs in the private sector.
In 1988, with the assistance of my friend and then Chairman
of the Labor Committee Senator Kennedy, we passed the Polygraph
Protection Act of 1988. The Act banned the practice of making
submission to polygraphs a condition of employment in most
private sector settings. During the hearings we held on that
bill, we heard many horror stories about how private employers
were abusing polygraphs and the hardships to employees that
occurred therefrom.
Significantly, however, the Act exempted Federal, State,
and local government entities. Different considerations and
controls may exist in the government context, particularly with
respect to classified information, which require an independent
analysis as to whether polygraphs, despite whatever limitations
they may have, should remain a useful tool to be used by the
government.
I know many people, including the members of our panel
today, have strong and divergent views on that issue. I am
looking forward to hearing the testimony and reading it and
eventually evaluating the steps taken by the FBI to improve its
internal security. Now, despite differing views on the
approach, I know everyone here shares the goal of protecting
our country's most sensitive information and maintaining a
vigorous and effective counterintelligence program.
At this point, I will put the statement of the
distinguished Democratic leader on the Committee, Senator
Leahy, into the record, without objection.
[The prepared statements of Senator Leahy and Senator Hatch
follow:]
Statement of Hon. Patrick Leahy, a U.S. Senator from the State of
Vermont
Today, the Committee will conduct a hearing on ``Issues Surrounding
the Use of Polygraphs.'' No doubt this a worthwhile subject for a
hearing. This is, however, but one of the important issues that is
raised by the arrest last February of FBI Special Agent Robert Phillip
Hanssen on espionage charges. This Committee has oversight jurisdiction
over the Department of Justice and the FBI and has both the duty and
the responsibility to examine how the FBI exercises its critical
national security and counter-intelligence missions. Yet instead of
scheduling a comprehensive hearing to review the actions that the FBI
has undertaken to protect our national security, Members of this
Committee may read in press reports about interviews given by ``senior
bureau officials . . . to discuss their actions,'' and about notes
reflecting high-level meetings with the FBI Director ``which were
provided by the bureau'' to the press. [See New York Times, April 22,
2001.]
The Hanssen case may be the most serious case of espionage in this
nation's history. According to allegations in a 100-page affidavit
filed in federal district court in the Eastern District of Virginia,
for more than 15 years Hanssen used his position in the FBI's elite
counter-intelligence unit to sell highly sensitive, classified
information to the KGB. It is alleged that, over the years, Hanssen
gave the KGB computer disks, volumes of documents and information about
our government's efforts to collect intelligence on the Soviet Union
and the Russian Federation. Worst of all, information Hanssen allegedly
provided to the KGB led to the execution of two of undercover agents
who were working for the United States. The full extent of the damage
done to this country's security is not yet known and may never be
known.
I appreciate that the allegations against Hanssen are the subject
of a pending criminal investigation. Obviously, we must not do anything
to interfere with the work of the grand jury or to prejudice the
constitutional rights of Mr. Hanssen, who has not been convicted of, or
as yet formally indicted for, any crime. Moreover, we should not do
anything to distract the prosecutors and government agents responsible
for investigating and prosecuting this matter from their duties in the
case. Finally, any oversight examination done by the Committee must be
exercised cautiously and with due concern to avoid any appearance of
undue political pressure and without the slightest implication that any
Senator seeks to influence the outcome of a pending criminal matter or
the discretion of a prosecutor or a judge.
That being said, there remains much about the Hanssen case that
cries out for public oversight hearings by this Committee. It is simply
astounding that a security breach of the magnitude described in the
affidavit in the Hanssen case could have been allowed to go on
unnoticed under the very nose of one of this nation's most elite law
enforcement agencies for such an extended period of time. Further,
according to press reports, a senior FBI investigator specifically
warned that there could be a mole in the bureau's own ranks over two
years ago, but his views were rejected. The Hanssen case therefore
raises serious questions about the FBI's internal controls and security
procedures and more generally about the FBI's ability to objectively
and accurately assess allegations of misconduct by its own agents.
This is not the first time that these concerns have been raised
about the FBI. The debacles at Waco and Ruby Ridge, the allegations of
former FBI chemist Frederick Whitehurst about the mishandling of
evidence at the FBI crime laboratory and allegations that FBI agents
illegally leaked confidential law enforcement information to
informants, who were members of organized crime, are all still fresh in
the public memory. After hearings on Ruby Ridge in 1995, the
Subcommittee on Terrorism, Technology and Government Information, ably
led by Chairman Arlen Specter, noted the tendency of the FBI, when
investigating itself, to accord its own agents ``undue deference'' and
to accept their stories at face value without a probing inquiry. (p.
1131). I cannot help but wonder whether a similar explanation accounts
for the failure of the FBI to detect Hanssen's alleged espionage for
nearly 15 years, not to mention its rejection of the specific warnings
of one of its own investigators about a mole within its ranks.
Questions of this sort, particularly when they arise repeatedly,
tend to erode public confidence in the competence and integrity of law
enforcement agencies and government institutions. In the end, the loss
of the trust of the American people is a far greater threat to the FBI,
and to our government generally, than the betrayal of a single agent.
I am aware that, in the wake of Hanssen's arrest, FBI Director
Freeh has asked for a review of the FBI's security programs to be
conducted by Judge Webster, who was the FBI Director during part of the
time that Hanssen allegedly conducted his espionage activities. While I
have great respect for Judge Webster, his prior position may cause some
to question any conclusions and recommendations he may reach. I wrote
to Judge Webster in February asking that he keep me advised of the
progress of his examination, its expected completion date and his final
conclusions and recommendations, if any, but to date have received no
response.
Although an internal FBI review is appropriate, it is clearly no
substitute for oversight hearings before this Committee, particularly
given the FBI's dismal record in investigating itself. In its report on
Ruby Ridge, the Subcommittee on Terrorism, Technology and Government
Information noted that ``adequate and independent oversight of the FBI
is crucial to avoid, at a minimum, the appearance of institutional bias
within the FBI.'' By definition, the responsibility of exercising
adequate and independent oversight falls upon this Committee, not the
FBI. I therefore do not believe that this Committee should defer
fulfilling its oversight responsibilities until the FBI review is
completed, whenever that may be.
Although, unfortunately, we will not be directly focusing on the
Hanssen case today, we will be hearing testimony from some experts
about the reliability of polygraph testing. Attorney General Ashcroft
and others have expressed skepticism about any over-reliance on
polygraph tests. I share their concerns. Historically, courts have
almost always excluded polygraph evidence as unreliable. And, with a
few exceptions, that has generally remained true even after the Supreme
Court's decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S.
579 (1993), which gave federal trial courts greater discretion to admit
scientifically novel evidence. In fact, in 1998, the Supreme Court
upheld the constitutionality of a military rule of evidence that
categorically excludes all polygraph evidence in court martial
proceedings. See United States v. Scheffer, 523 U.S. 303 (1998).
According to Justice Thomas, writing for the Court, ``there is simply
no way to know in a particular case whether a polygraph examiner's
conclusion is accurate, because certain doubts and uncertainties plague
even the best polygraph exams.'' Id. at 312.
The routine use of polygraph testing in government employment
situations raises even more troubling issues. For example, let us
assume that polygraph tests are accurate 90 percent of the time, as
some experts claim. If the police are investigating a crime, and a
suspect agrees to take a polygraph, the results of that test may be of
some value to the investigation even if there is a ten percent chance
that they may be wrong. However, if you polygraph thousands of
employees of a government agency on a routine basis, the ten percent
error rate will mean that dozens or even hundreds of innocent employees
will generate results indicating--falsely--that they are giving
deceptive answers. While I am not saying that all use of polygraphs
should be prohibited, particularly in the sensitive area of national
security, I am very concerned that the rights of these innocent
employees be carefully protected. In particular, denying a person a
government job solely on the basis on a polygraph and without any
corroborating evidence of deception or other unsuitability for
employment may result in wrongly excluding many qualified people from
government service.
The FBI itself has apparently shared these doubts about polygraphs
because, unlike other national security agencies, it has not routinely
polygraphed its own agents and employees who have access to classified
information. Nevertheless, according to recent press reports, the FBI
has now undertaken to polygraph 500 of its own agents in reaction to
the Hanssen arrest. I would like to know more about the FBI's recent
about-face on polygraphs. I would also like to know whether the FBI
plans to continue using polygraphs, as well as what other steps the FBI
has taken or is considering taking as the result of the Hanssen case.
Those are questions that will have to wait until another day and
another hearing. Consequently, the record of this hearing will
necessarily be incomplete. Moreover, until we begin meaningful and
comprehensive hearings into the Hanssen case, the oversight
responsibilities of this Committee will remain unfulfilled.
Statement of Hon. Orrin G. Hatch, A U.S. Senator from the State of Utah
I would like to welcome everyone to this Judiciary Committee
hearing on issues surrounding the use of polygraphs as a
counterintelligence screening tool. We have a number of distinguished
witnesses here today, and on behalf of the Committee, I want to thank
you for being here.
Earlier this year, we all became aware of a very disturbing
situation at the FBI where one of its agents, Robert Hanssen, was
accused of being a Russian spy. The alleged security compromises are
vast and, if true, are severely damaging to our national security. In
the wake of the Hanssen case, the FBI instituted new, interim
procedures to improve its internal security. FBI Director Freeh has
appointed William Webster to lead a comprehensive internal security
review at the FBI and to recommend more permanent measures to improve
internal security.
The interim security measures already implemented include the use
of polygraphs. It is quite possible that the permanent changes to FBI's
internal security regime will include polygraphs in one way or another.
I see this hearing as an important first step in evaluating the
changes occurring at the FBI. I expect to hear from Judge Webster in
the future, to discuss his ongoing evaluation and recommendations. I
would also anticipate that, at the appropriate time, we would hear from
Director Freeh concerning the decisions the FBI will make based upon
the work of the Webster Commission.
The purpose of today's hearing is to take the initial step of
educating the Judiciary Committee on polygraphs, their accuracy and
reliability, as well as the policy and potential legal issues that may
arise from the use of polygraphs as a screening tool in the
counterintelligence context. This should be helpful to members and
staff as we evaluate whatever new internal security plan the FBI
decides to implement.
There is a wide variety of opinions and research on the use of
polygraphs. There are those who believe they are completely unreliable
and actually detrimental to security. Others see polygraphs as an
important tool in an overall security program. Today, we will begin to
look at the science and policy behind the use of polygraphs as a
counterintelligence tool.
For myself, I appreciate the complexities of this issue. As a
former Chairman of the Labor Committee (or as it is now called the
``HELP'' Committee), I have some experience with the use of polygraphs
in private sector employment settings. Many members and I were
concerned with the lack of uniform standards and other abuses that were
occurring with employment related polygraphs in the private sector. In
1988, with the assistance of my friend and then-Chairman of the Labor
Committee Senator Kennedy, we passed the Polygraph Protection Act of
1988. The Act banned the practice of making submission to polygraphs a
condition of employment in most private sector settings. During the
hearings we held on that bill, we heard many horror stories about how
private employers were abusing polygraphs and the hardships it caused
employees.
Significantly, however, the Act exempted federal, state and local
government entities. Different considerations and controls may exist in
the government context--particularly with respect to classified
information--which require an independent analysis as to whether
polygraphs--despite whatever limitations they may have--should remain a
tool for use by government agencies.
I know many people, including the members of our panel today, have
strong and divergent views on that issue. I am looking forward to
hearing the testimony and eventually evaluating the steps taken by the
FBI to improve its internal security. Despite differing views on the
approach, I know everyone here shares the goal of protecting our
country's most sensitive information and maintaining a vigorous and
effective counterintelligence program.
Chairman Hatch. We have an excellent panel of witnesses
with us here today. Michael Capps has been involved in the
polygraph profession for over 26 years as an examiner,
researcher, and educator. He is currently the Deputy Director
for Developmental Programs for the Defense Security Service.
Among his responsibilities is the oversight of the Department
of Defense Polygraph Institute, for which he served over 5
years as Director.
Dr. William Iacono is the distinguished McKnight University
Professor and Director of the Clinical Psychology Training
Program at the University of Minnesota. He has served as a
consultant regarding lie detection to various government
agencies, including the U.S. Congress Office of Technology
Assessment, the CIA, and the Department of Defense.
Jeffrey Smith is currently an attorney in the law firm of
Arnold and Porter and is a former general counsel at the CIA.
He recently chaired a review of counterintelligence methods at
the CIA. It is good to have you here again, Mr. Smith. We
appreciate it.
Mark Zaid is an attorney in private practice who has
represented various government employees who have been affected
by the use of polygraphs in the workplace.
Richard Keifer is a former President of the American
Polygraph Association and has been involved in the use of
polygraphs for many years.
We are grateful to have all of you here. We appreciate you
taking time to be with us and to educate the Committee. We will
turn to you first, Mr. Capps.
STATEMENT OF MICHAEL H. CAPPS, DEPUTY DIRECTOR FOR
DEVELOPMENTAL PROGRAMS, DEFENSE SECURITY SERVICE, ALEXANDRIA,
VIRGINIA
Mr. Capps. Good morning, Mr. Chairman. I have submitted a
written statement for the record.
Chairman Hatch. We will put the complete statements from
all of you in the record. If you can summarize in 5 minutes, we
would appreciate it.
Mr. Capps. OK, sir. Essentially, what I have done is talked
about the history of polygraph, that there are 24 government
agencies or government programs and about 500 polygraph
examiners within the government. The use of polygraph in the
government involves the protection of the President, vetting of
intelligence sources, protection of classified programs,
confidential informant validation, part of counternarcotics,
counterinsurgency, counterterrorism programs, screening of
applicants in intelligence agencies, investigations of human
rights, management of convicted sex offenders, investigation of
food and drug tampering, location of assets concealed by
convicted thieves and drug traffickers, and traditional
criminal investigation.
We have supported the use of polygraph by allied nations.
As a matter of fact, the Defense Department just in the last
couple of years has paid for the training of Russians to
protect nuclear weapons by the use of polygraph.
We have a consolidated training facility at the Department
of Defense Polygraph Institute, where all Federal examiners
receive their training. This training is taught at the master's
level, and now examiners can receive a master's through the
American School of Professional Psychology through their work
at the Department of Defense Polygraph Institute.
The impact of the government polygraph programs is best
understood in the context of how they are used, and the use,
sir, is not just to render an opinion that affects someone's
employment because we do not render that opinion. The opinion
is made by adjudicators or officials within the organization,
not by polygraph examiners.
I think another issue has to do with the research. The
research is in two areas, that of laboratory and that of field
work. Critics argue that polygraph is an imperfect tool, and we
agree that it is an imperfect tool. We agree that the validity
is not 100 percent and never will reach 100 percent, but we
believe that the system today without the use of polygraph
would be more flawed than it currently is.
That is all I have at this time, sir.
Chairman Hatch. Thank you, Mr. Capps.
[The prepared statement of Mr. Capps follows:]
Statement of Michael H. Capps, Deputy Director for Developmental
Programs, Defense Security Service
Mr. Chairman and Members of the Judiciary Committee, my name is
Michael H. Capps. I am the Deputy Director for Developmental Programs
for the Defense Security Service. Among my responsibilities is the
oversight of the Department of Defense Polygraph Institute for which I
served over five years as Director. I have been involved in the
polygraph profession for over 26 years as an examiner, researcher, and
educator. I was invited here today to respond to questions on issues
surrounding the use of polygraphs.
The instrument we now call the polygraph was introduced into
federal service in the 1940s and, in addition to its standard role in
criminal investigations, was used in such noteworthy events as
investigative support for the Nuremberg Trials, counterintelligence
support to the then-new atomic weapons facilities and investigations of
crimes in prisoner-of-war camps.
The U.S. government now has 24 polygraph programs, staffed with
approximately 500 polygraph examiners. These men and women serve in all
regions of the country and much of the world, in the military,
intelligence, and law enforcement sectors. Current polygraph
applications for the federal government include: protection of the
President; vetting of intelligence sources; protection of classified
programs; confidential informant validation; as part of
counternarcotics, counterinsurgency, and counterterrorism programs;
screening of applicants to intelligence agencies; investigation of
human rights violations; management of convicted sex offenders;
investigation of food and drug tampering; location of assets concealed
by convicted thieves and drug traffickers, and; traditional criminal
investigation. The U.S. government has supported the use of the
polygraph among allied nations when mutual interests were at stake,
such as when it supplied training and state-of-the-art polygraph
equipment to Russia, to help them maintain security over their nuclear
weaponry after the fall of Communism. It has, on numerous occasions,
considered providing polygraph training for friendly governments, and
the U.S. Department of Defense Polygraph Institute (DoDPI) regularly
receives requests for polygraph training from these nations.
The DoDPI is the U.S. government's consolidated training facility
for polygraph examiners from all Federal agencies. To qualify for entry
into the 13-week program, a candidate must be a U.S. citizen, be at
least 25 years of age, hold a 4-year degree or demonstrate an ability
to master graduate-level courses, have two years of investigative
experience, have completed a background investigation to confirm a
sound temperament and character, and be nominated and supported by his
or her home agency. The DoDPI polygraph curriculum is taught at the
master's degree level, and provides a balance of a challenging academic
load and technical skills practica. Those students who satisfactorily
complete the DoDPI education program are released to their home
agencies, where they serve internships, and remain subject to quality
control and continuing education requirements for their entire
professional careers as Federal polygraph examiners.
One of the recurring concerns for Congress has been the scientific
foundation of the polygraph technique. In the last 30 years, scientists
have given their attention to fundamental questions regarding
polygraphy, such as the methods, reliability and validity. There is
common agreement in the scientific community that modern polygraph
techniques do produce very high inter-scorer agreement, usually in
excess of 90%, and this compares favorably with many other common
techniques in the behavioral sciences. Algorithms developed by the
government and commercial entities in recent years hold the promise of
even better reliability.
While reliability has not been a major issue for federal polygraph
programs, a controversy exists on the question of polygraph validity.
There is a significant body of literature that demonstrates that
polygraph decisions, based on techniques employed by the U.S.
government for criminal investigations, have an error rate of perhaps
10% or lower. However, these findings have been challenged by critics
for many years because of unique problems associated with the research
of polygraphy.
Validation of the polygraph technique has taken two forms:
laboratory research, and field studies. During laboratory studies,
volunteer participants are given polygraph tests regarding whether they
committed a mock crime that had been scripted for them by the
researchers. Some examinees are programmed to be innocent, and others
guilty. Laboratory studies provide an excellent opportunity to
investigate variables of interest to the researcher, because they can
be controlled with certainty. The shortcoming of laboratory research is
that mock crimes are not as emotionally engaging to the volunteer
examinees as is the experience of a field polygraph examination, for
which failure may have serious consequences for the examinees who are
suspected of real crimes. Critics point out that laboratory studies may
be prone to underestimating error rates for innocent examinees (false
positives) because these examinees are less concerned about being
accused of the pretended crime than would be an innocent person accused
of a real crime. Proponents concede this point, but note that the
laboratory studies also show high accuracy with the examinees who were
``guilty'' of the mock crime, an outcome that would not be expected in
a simulated crime.
Field research of polygraphy is an approach that takes advantage of
cases that occur as part of existing polygraph programs. Examinees are
actual criminal suspects who face real world consequences for a failed
polygraph examination. The examiners have practical experience in the
administration of examinations with criminal suspects, something
usually lacking in laboratory designs. Polygraph decisions can
subsequently be compared to other evidence, such as confessions, DNA,
or other forensic tests, to determine how closely the polygraph outcome
matches ground truth. Unlike laboratory studies, in which ground truth
is known in every case, the ultimate truth in the field setting is more
elusive.
DoDPI administers an independent government-wide quality assurance
program, to verify that the agencies conform to written policies in the
preparation, conduct, reporting, and reviewing of their polygraph
examinations. DoDPI quality assurance teams make scheduled site visits
to each agency biannually. DoDPI inspectors do samplings of the work
product of the participating agencies, and note deficiencies. DoDPI
does not evaluate individual cases for accuracy of decisions, nor does
it become involved in adjudicative issues as part of this quality
assurance program. However, DoDPI does determine whether polygraph
practices are consistent with relevant policies.
The impact of government polygraph programs are best understood in
the context of the larger process of which they are a part. While
polygraphy is valued by those agencies that use it, polygraphers are
not involved in determining the action an agency takes based on the
results of a polygraph examination. Rather, these decisions are the
responsibility of adjudication officers, hiring officials,
investigating officers, or other agency customers of the polygraph
reports, who must weigh the results along with whatever information is
available from other sources. Questions regarding hiring,
investigation, or prosecution in which polygraph results may be a
consideration, are better answered by those responsible for those
decisions.
Counterintelligence screening of applicants and employees is one of
the more controversial applications of polygraphy. Questions regarding
the validity of this method are at the core of the debate. Critics
argue that, as an imperfect tool, the polygraph wrongly classifies a
percentage of both truthful and untruthful examinees, leading to grave
consequences in both cases. I suggest that reducing the argument to
this premise obscures a more relevant issue. First, let us agree that
polygraphy is imperfect. Under the best of circumstances, errors occur.
It is imperfect, like every personnel screening tool, including the
personal interview, background investigation, credit check or
employment check. However, a properly conducted polygraph screening
program, with the level of oversight imposed on government polygraph
programs, results in more adjudicable information than all other
sources combined. If one takes the position that employment decisions
should be made on methods that exclude polygraphy, we must agree that
more errors will occur, not fewer. Second, there is a presumption that
polygraph results dictate employment destiny. Typically, an adverse
polygraph results triggers more investigative resources being brought
to bear to help resolve the doubt. These resources could include an
investigative interview, enhanced background investigation, or simply
further polygraph testing. Only in a subset of cases where the
polygraph results were initially unfavorable does the case remain
unresolved, and even then, the ultimate employment action depends on
decisions of those not involved in polygraphy.
Because of the complexity of the counterintelligence polygraph
screening process, only a tentative estimate of accuracy can be stated.
An error rate of perhaps less than 5% is projected for examinees who do
not demonstrate a significant response in a strictly
counterintelligence polygraph examination (not including suitability
coverage), under the combined condition that the examinee cooperates
with all polygraph processes, including retesting, does not try to
manipulate the examination, and clearly understands the questions.
Retesting serves to reduce errors for that category of examinees. The
error rate for examinees who demonstrate a significant response to the
polygraph may be higher; however, this can be mitigated if subsequent
examinations are more focused on discrete issues as opposed to the
broad and general questions asked during an initial screening
examination. Limiting the number of retests for examinees who
demonstrate a significant response to the initial examination could
reduce this error rate to less than 20%. Retesting practices are policy
issues, however, not scientific issues.
This concludes my prepared statement. I appreciate your willingness
to entertain my comments, and I am now ready to answer your questions.
Chairman Hatch. Dr. Iacono?
STATEMENT OF WILLIAM G. IACONO, PROFESSOR, DEPARTMENT OF
PSYCHOLOGY, UNIVERSITY OF MINNESOTA, MINNEAPOLIS, MINNESOTA
Mr. Iacono. Mr. Chairman, members of the Judiciary
Committee, I want to thank you for having me here to testify on
this matter of great importance to our country's security.
I wish to begin by making clear there is no distinctive lie
response. Polygraph operators try to determine if someone is
lying by comparing responses to relevant versus control or
comparison questions. Relevant questions deal with issues
related to being a traitor to your country, while the control
questions deal with possible misdeeds from your past.
For example, the physiological response to the relevant
question, ``Have you committed espionage?'' is compared to the
response elicited by the control question, ``Did you ever
violate a traffic law?'' Both questions are answered no. These
tests are based on the idea that spies will be more
physiologically aroused by the espionage question.
But scientific research suggests that criminals or spies
can pass the test by artificially augmenting their response to
the control question. When asked whether he violated a traffic
law, a spy need only lightly bite his tongue or commence mental
arithmetic exercises to pass this test. Polygraph operators
have no way of detecting the use of these countermeasures, and
detailed instructions regarding how to employ them can be found
in libraries and on the Internet, for instance, at the website
antipolygraph.org. Someone who is clever enough to be a spy
should be clever enough to learn these simple techniques to
beat a polygraph.
For an innocent person to pass, he must be more worried
about answering a question about a traffic violation than about
espionage. However, it is obvious to everyone which of these
two questions is most important. Even though innocent, being
asked about espionage is likely to be upsetting because your
patriotism is being challenged and because your response to
this question determines your future employment. The
consequences of being physiologically aroused to a question
about espionage are grave, even for innocent people. That is
why they would be expected to fail polygraph tests in large
numbers when the tests are scored in the standard way.
In fact, the best studies of polygraph tests using real
life cases and published in top scientific journals find that
innocent people fare little better than chance on these tests,
with 40 percent or more failing on average. This explains why
large numbers of FBI applicants fail pre-employment polygraph
exams, even after they have been judged to satisfy most of the
FBI qualifications to be an agent.
Surprisingly, however, when polygraphs are given to those
already employed by the government, almost all of whom can be
presumed to be innocent, very few individuals fail. This
outcome is obtained because examiners understand that failing
more than a handful of those with security clearances would be
embarrassing to themselves and have potentially catastrophic
consequences for government programs that depend upon having a
stable, expertly trained workforce. In other words, post-
employment polygraphs are not scored following standard
procedures. Examiners make subjective judgments that find few
workers deceptive.
In the absence of a scientific basis for their program, the
government has turned to other arguments to justify polygraphs,
claiming they have utility because they generate important
admissions from employees. This argument has not been supported
by data. Sworn statements of significant wrongdoing, firings,
arrests, convictions, and list of spies uncovered as a result
of polygraph tests have not been forthcoming.
The government also argues polygraphs have a deterrent
effect, a claim with no empirical support that is certainly
unlikely to be true as employees learn that virtually no one
fails polygraphs.
At their invitation, I recently met with scientists at Los
Alamos National Laboratory. I found them very concerned about
protecting nuclear secrets. However, these scientists do not
believe polygraph testing will accomplish this objective. They
are worried because valued senior staff are retiring early and
talented young prospects are turning away from lab employment
rather than subject their careers and integrity to the
polygraph equivalent of Russian roulette.
To conclude, polygraphs are unlikely to catch spies and are
likely to have deleterious effects on the recruitment and
retention of the best employees. To the extent that their value
derives from admissions made during testing, these admissions
will only be forthcoming if examinees believe the tests work.
The success of the government program thus depends on examinees
being ignorant of the procedure, an unsafe assumption,
especially when those tested are the kinds of smart people we
want as intelligence officers and weapons scientists. Even if
polygraph testing were as accurate as the government claims,
long-term harm to national security may outweigh any benefits.
Thank you.
Chairman Hatch. Thank you, Mr. Iacono.
[The prepared statement and attachment of Mr. Iacono
follow:]
Statement of William G. Iacono, Professor, Department of Psychology,
University of Minnesota, Minneapolis, Minnesota
Mr. Chairman, members of the Judiciary Committee, I want to thank
you for having me here to testify on this matter of great importance to
our country's security.
I wish to begin by making clear that there is no distinctive lie
response. Polygraph operators try to determine if someone is lying by
comparing responses to Relevant vs. ``control'' or comparison
questions. Relevant questions deal with issues related to being a
traitor to your country while the control questions deal with possible
misdeeds from your past. For example, the physiological response to the
relevant question ``Have you committed espionage?'' is compared to the
response elicited by the control question ``Did you ever violate a
traffic law?'' Both questions are answered ``no.'' These tests are
based on the idea that spies will be more physiologically aroused by
the espionage question. But scientific research suggests that
sophisticated criminals or spies can pass the test by artificially
augmenting their response to the control question. When asked whether
he violated a traffic law, a spy need only curl his toes inside his
shoe, lightly bite his tongue, or commence mental arithmetic exercises
to pass this test. Polygraph operators have no way of detecting the use
of these countermeasures, and detailed instructions regarding how to
employ them can be found in libraries and on the internet. Someone who
is clever enough to be a spy should be clever enough to learn these
simple techniques to beat a polygraph.
For an innocent person to pass, he must be more worried about
answering a question about a traffic violation than about espionage.
However, it is obvious to everyone which of these two questions is more
important. Even though innocent, being asked about espionage is likely
to be upsetting because your patriotism is being challenged and because
your response to this question determines your future employment. The
consequences of being physiologically aroused to a question about
espionage are grave even for innocent people; that is why they would be
expected to fail polygraph tests in large numbers when the tests are
scored in the standard way. In fact, the best studies of polygraph
tests, using real-life cases and published in top scientific journals,
find that innocent people fare little better than chance on these
tests, with 40% or more failing on average.
This explains why large numbers of FBI applicants fail pre-
employment polygraph exams even after they have been judged to satisfy
most of the FBI qualifications to be an agent. Surprisingly, however,
when polygraphs are given to those already employed by the government,
almost all of whom can be presumed to be innocent, very few individuals
fail. This outcome is obtained because examiners understand that
failing more than a handful of those with security clearances would be
embarrassing to themselves and have potentially catastrophic
consequences for government programs that depend on having a stable,
expertly trained work force. In other words, post-employment polygraphs
are not scored following standard procedures; examiners make subjective
judgments that find few workers deceptive.
In the absence of a scientific basis for their program, the
government has turned to other arguments to justify polygraphs,
claiming they have utility because they generate important admissions
from examinees. This argument has not been supported by data. Sworn
statements of significant wrongdoing, firings, arrests, convictions,
and lists of spies uncovered as a result of polygraph tests have not
been forthcoming. The government also argues polygraphs have a
deterrent effect, a claim with no empirical support that is certainly
unlikely to be true as employees learn virtually no one fails
polygraphs.
At their invitation, I recently met with scientists at Los Alamos
National Laboratory. I found them very concerned about protecting
nuclear secrets. However, these scientists do not believe polygraph
testing will accomplish this objective. They are worried because valued
senior staff are retiring early and talented young prospects are
turning away from lab employment rather than subject their careers and
integrity to the polygraph equivalent of Russian roulette.
To conclude, polygraphs are unlikely to catch spies and are likely
to have deleterious effects on the recruitment and retention of the
best employees. To the extent that their value derives from admissions
made during testing, these admissions will only be forthcoming if
examinees believe the tests work. The success of the government program
thus depends on examinees being ignorant of the procedure, an unsafe
assumption, especially when those tested are the kinds of smart people
we want as intelligence officers and weapons scientists. Even if
polygraph testing were as accurate as the government claims, long-term
harm to national security may outweigh any benefits. Thank you.
Addendum to Oral Statement of William G. Iacono \1\
Polygraph Screening of Federal Employees and Job Applicants
national security screening
In view of the federal Employee Polygraph Protection Act of 1988
(29 US Code, Chapter 22), which prohibits requiring employees or job
applicants in the private sector to submit to polygraph testing, it is
ironic that the federal government is the principal employer of
polygraph examiners. Applicants for positions with the FBI, CIA, NSA,
Secret Service, and similar agencies are required to undergo lie
detector tests intended to supplement or substitute for background
investigations. Current employees of some of these agencies, military
personnel who hold high security clearances, and civil employees of
defense contractors doing classified work may be required to undergo
periodic tests for screening purposes. The Department of Defense
conducted some 17,970 such tests in 1993.\2\ Most of these tests are
referred to as counterintelligence scope polygraph tests by the
government
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\1\ Distinguished McKnight University Professor, Professor of
Psychology, Law, and Neuroscience, University of Minnesota, Director,
Clinical Science and Psychopathology Research Training Program,
recipient of the American Psychological Association's Distinguished
Scientific Award for an Early Career Contribution to Psychology, the
Society for Psychophysiological Research's Distinguished Scientific
Award for an Early Career Contribution to Psychophysiology, Past-
President of the Society for Psychophysiological Research (1996-97) and
former Member, Department of Defense Polygraph Institute's Curriculum
and Research Guidance Committee. This addendum was adapted from W.G.
Iacono and D.T. Lykken, ``The scientific status of research on
polygraph techniques: The case against polygraph tests'' in D. Faigman
et al. (Eds.), Modern Scientific Evidence: The Law and Science of
Expert Testimony (second edition; in press). St. Paul, MN: West
Publishing.
\2\ Department of Defense Polygraph Institute, A Comparison of
Psychophysiological Detection of Deception Accuracy Rates Obtained
Using the Counterintelligence Scope Polygraph and the Test for
Espionage and Sabotage question Formats. 26 Polygraph, 79-106 (1997),
at 80. (hereafter DoDPI Study 1.)
---------------------------------------------------------------------------
As a consequence of Public Law 106-65 (S. 1059) passed as part of
the National Defense Authorization Act of 2000, potentially thousands
of scientists and security personnel employed at U.S. weapons labs at
Lawrence Livermore, Sandia, or Los Alamos must submit to polygraph
tests as part of an effort to improve nuclear security. A relatively
new procedure, the Test for Espionage and Sabotage (TES), or a nearly
identical variant of this procedure, the Test for Espionage, Sabotage,
and Terrorism (TEST), is used.
As outlined in the recently promulgated Department of Energy (DOE)
Rule 709 \3\ these counterintelligence polygraph examinations are to be
limited to coverage of six topics:
---------------------------------------------------------------------------
\3\ Part 709 ``Polygraph Examination Regulations"' in Chapter III
of Title 10 of the Code of Federal Regulations.
---------------------------------------------------------------------------
1) espionage,
2) sabotage,
3) terrorism,
4) intentional unauthorized disclosure of classified information,
5) intentional unauthorized foreign contacts, and
6) deliberate damage or malicious use of a U.S. government or defense
system.
Rule 709 has a number of interesting features that are similar to
those governing the use of polygraph tests by other federal agencies
and that are likely to stimulate law suits.\4\ These include the
following:
---------------------------------------------------------------------------
\4\ In anticipation of the DOE regulations, attorneys representing
government employees and employee prospects have indicated a desire to
sue the government based on adverse employee decisions made as a result
of polygraph examinations.
---------------------------------------------------------------------------
Prospective employees of the DOE or its contractors who refuse
to take a polygraph cannot be hired and incumbent employees
must be denied access to secret information.
Using the results of a polygraph test as an ``investigative
lead'' can result in an administrative decision that denies or
revokes an employee's access to classified-information and may
lead DOE to ``reassign the individual or realign the
individual's duties within the local commuting area or take
other actions consistent with the denial of access.''
These tests will be conducted at least every five years and
also on an aperiodic basis.
Public comment on the proposed regulations revealed widespread
opinion that ``that polygraph examinations have no theoretical
foundation or validity.'' DOE decided, however, that ``as a
matter of law,'' the agency is mandated to conduct polygraph
examinations, and ``is no longer free to act favorably on
comments arguing against establishment of a counterintelligence
scope polygraph examination program because of information and
claims about deficiencies in polygraph reliability.''
The TES \5\ includes four irrelevant questions (e.g., ``Do you
sometimes drink water?'' ``Is today ______? '') and the following four
relevant questions: ``Have you committed espionage?'' ``Have you given
classified information to any unauthorized person?'' ``Have you failed
to notify, as required, any contact with citizens of sensitive
countries including China?'' ``Have you been involved in sabotage?''
The responses to the relevant questions are compared to the responses
to four ``directed lie'' questions that serve as ``controls'' or
comparisons by providing an example of a response to a known lie. The
directed lies are questions that both the examiner and the examinee
know will be answered falsely. These four questions are chosen from a
list of acceptable alternatives, but may include any of the following,
which the examinee is directed to answer ``No'': ``Did you ever violate
a traffic law?'' ``Did you ever say something that you later
regretted?'' ``Did you ever lie to a co-worker about anything at all?''
Examinees who show greater autonomic disturbance following the
questions about espionage and sabotage, than they show following these
directed lies, are classified as deceptive.
---------------------------------------------------------------------------
\5\ Because the government has published information only on the
TES, we will refer to this procedure in the remainder of this section.
---------------------------------------------------------------------------
The field validity of counterintelligence scope polygraph
examinations, including the TES, is unknown. However, the Department of
Defense Polygraph Institute (DoDPI) has reported two laboratory studies
of the validity of the TES.\6\ These both employed paid volunteers, 115
of whom were innocent while 60 others were each required to enact
simulated acts of espionage or sabotage. Of the innocent subjects, 14
or 12.5% responded in the deceptive direction. Of the ``guilty''
subjects, 10 or 17% were misclassified as innocent.
---------------------------------------------------------------------------
\6\ DoDPI Study 1, supra note 33; and Department of Defense
Polygraph Institute, Psychophysiological Detection of Deception
Accuracy Rates Obtained using the Test for Espionage and Sabotage. 27
Polygraph, 68-73 (1998). Because inconclusive polygraph tests are
typically repeated until they yield a conclusive verdict, inconclusive
outcomes are not included in the calculation of accuracy rates in this
study.
---------------------------------------------------------------------------
It is obviously likely that innocent scientists or other persons
with high security clearances would be more disturbed by the TES
relevant questions asked during an official screening test than were
these volunteers for whom the test carried no threat to their
reputations or careers.\7\ The disturbance produced by the directed-lie
questions, on the other hand, might be expected to be no greater in
real-life than in simulated conditions of testing. Therefore, when
innocent, loyal government employees with top secret classifications
are subjected to the TES, one might expect many more to be classified
as deceptive than the 12.5% suggested by the DoDPI studies. The actual
rate of falsepositive diagnoses is probably close to the 43% level
indicated by the real-life studies referred to in footnote 7.
---------------------------------------------------------------------------
\7\ Field studies based on actual espionage cases are needed to
determine how the TES works in real life when innocent persons
reputations and careers are on the line. Such studies do not exist.
However, there are studies of the accuracy of real life criminal
polygraph tests that have been published in top journals such as Nature
and the Journal of Applied Psychology. These journals routinely reject
over 85% of submitted articles. The studies published in these journals
indicate that approximately 43% of innocent subjects fail the polygraph
when the decision is based on physiological responses to relevant and
control questions. (for more details, see W.G. Iacono and D.T. Lykken,
The Case Against Polygraph Tests in D. Faigman et al., Modern
Scientific Evidence: The Law and Science of Expert Testimony. St. Paul,
MN: West Publishing, 1997).
---------------------------------------------------------------------------
When DOE scientists are subjected to the planned TES (or TEST),
these data indicate that large numbers of innocent employees would be
classified as deceptive if the test scores were relied upon. DOE's
polygraph examiners avoid any such disastrous result because they know
that the base rate of spying (the proportion likely to be spies) among
such a highly screened and dedicated group is likely to be tiny.
Consequently, they cannot fail 43% or even 12.5% of scientists without
undermining their own credibility, creating a personnel management
nightmare, and wreaking havoc on employee morale.
Therefore, subjects who are more troubled by ``Have you committed
espionage?'' than by ``Did you ever say something that you later
regretted?'' are invited by the examiner to explain why they might have
responded in this way. If the respondent's answer and demeanor satisfy
the examiner, his ``fail'' is converted to a ``pass.'' Thus, by
permitting the polygraph operator to be the ultimate arbiter, relying
on whatever clinical skills or intuitions s/he may (or may not)
possess, the frequency of false-positive diagnoses is kept to a low
value. Nevertheless, if as few as 2% of the 10,000 workers potentially
covered by Rule 709 receive final diagnoses of ``deception indicated,''
200 highly trained but probably innocent scientists would be implicated
as spies in the first round of testing.\8\
---------------------------------------------------------------------------
\8\ The Department of Defense Polygraph Program report to Congress
for Fiscal year 2000 illustrates how polygraphers adjust the outcomes
of their tests to minimize failing anyone [Department of defense
Polygraph Program Annual report to Congress, Fiscal Year 2000, Office
of the Assistant Secretary of Defense (2000); available at http://
www.fas.org/sgp/othergov/polygraph/dod-2000.html]. For fiscal year
2000, 7,688 individuals were given counterintelligence scope polygraph
tests but demonstrated ``no significant physiological response to the
relevant questions and provided no substantive information.'' In other
words, some undetermined number provided a substantial physiological
response but passed because they did not make incriminating
revelations. An additional 202 individuals produced significant
physiological reactions and provided ``substantive information.'' Of
these, 194 received ``favorable adjudication'' with the remaining 8
cases still pending decisions, with no one receiving ``adverse action
denying or withholding access'' to classified information. These data
confirm that the government goes to extreme lengths to ensure no one
fails these tests, but the also demonstrate that the tests have no
utility.
---------------------------------------------------------------------------
Although the controversy surrounding the DOE polygraph screening
program has been focused on the high likelihood that innocent
individuals will be judged to be spies, there is little evidence that
the program will actually catch spies. The laboratory studies of the
TES, which reported only 83% accuracy in identifying persons ``guilty''
of committing mock-espionage, overestimate accuracy for the real-life
guilty in two important ways.
First, consistent with real life screening test practices that help
to keep the number failing these tests low, these studies did not
conclude that deceptive polygraph tests were in fact failed if, during
a post-test interview, an examinee offered information that reasonably
justified why the test might be a false positive outcome. However, the
design of the studies allowed only innocent test subjects this
opportunity to ``talk their way out of'' a failed test because guilty
people were instructed to confess as soon as the examiner confronted
them with their deceptive test results. We do not know how many guilty
individuals would have been mistakenly judged ``false positives'' had
they been allowed to try to ``explain away'' the outcome of their
examinations.
Second, these DoDPI studies did not account for the likelihood that
real spies would use countermeasures to defeat the TES.\9\ DOE
scientists are not simpletons: if one or two are in fact spies, surely
both they and their foreign handlers would have sense enough to be
prepared to bite their tongues after each directed-lie question. Thus
it is to be expected that the only weapons-lab scientists, with their
highly specialized skills, who fail the projected DOE polygraph
screens, will be truthful, honorable people who cannot offer a
plausible excuse for failing their polygraphs. The most likely result
of Rule 709 will be their ruined reputations and the government's loss
of skilled, dedicated employees.
---------------------------------------------------------------------------
\9\ Honts et al. have shown that 50% or more of guilty subjects in
laboratory studies can defeat a polygraph test by engaging in
countermeasures such as lightly biting the tongue, curling toes inside
one's shoes, or doing mental arithmetic when control questions are
asked. Skilled examiners could not determine when countermeasures were
being used. Charles R. Honts et al., Effects of Physical
Countermeasures on the Physiological Detection of Deception, 70 J.
Applied Psychol. 177, 177-187 (1985); Charles R. Honts et al., Mental
and Physical Countermeasures Reduce the Accuracy of Polygraph Tests, 79
J. Applied Psychol. 252, 252-259 (1994).
---------------------------------------------------------------------------
Besides the facts that these tests are not justified on scientific
grounds and that they are clearly biased against truthful employees,
there is no evidence that personnel screening tests have any true
utility.\10\ No spy has ever been uncovered because of a failed
polygraph test. Although the government has argued that the admissions
individuals make when undergoing these tests provide valuable
information, there is no evidence documenting that vital or even
important information has been uncovered as a result of polygraph
tests. It is possible that employee screening has a deterrent effect in
that knowledge that one must pass such tests may discourage would be
spies from seeking employment, and it may discourage the currently
employed from entertaining thoughts about becoming a spy. However,
there is no evidence to support such an assertion. Given the ease with
which individuals can learn to defeat these tests coupled with the fact
that almost no one is judged to have failed them,\11\ it is unlikely
that they have any serious deterrent effect.
---------------------------------------------------------------------------
\10\ In the Clinton Administration's Joint Security Commission
Report [``Redefining Security,'' A Report to the Secretary of Defense
and the Director of Central Intelligence, February 28, 1994, Joint
Security Commission, Washington, D.C. 20505 ; available at http://
www.fas.org/sgp/libra/i?dex.html], it is noted that ``the most
important product of the polygraph process is more likely to be an
admission made during the interview than a chart interpretation. .
.While senior officials at the CIA and the NSA acknowledge the
controversial nature of the polygraph process, they also strongly
endorse it as the most effective information gathering technique
available in their personnel security systems.''
\11\ See footnote 8 summarizing the DoD Fiscal year 2000 report.
---------------------------------------------------------------------------
Opinions of DOE National Laboratory Senior Scientists Regarding
Employee Screening
Concerned that national laboratory employees must submit to
periodic lie detector tests, a panel of the more senior national
laboratory scientists and engineers undertook a detailed appraisal of
the existing literature relating to the nature and validity of
polygraph screening methods. Sandia's Senior Scientists and Engineers
(``Seniors '') provide a service to the Laboratories as independent,
experienced, corporate evaluators of technical issues. They are
available as a group to assist Sandia management with technical reviews
of particularly significant issues and programs. Implementation uses
subpanels of the Seniors (helped as necessary by other Sandia staff) to
conduct the initial, detailed review of issues or programs. The reports
of the subpanels are then made available for review by all other
Seniors prior to submission to management. The report of the subpanel
studying polygraphs and security at Sandia was circulated in the fall
of 1999.\12\
---------------------------------------------------------------------------
\12\ Polygraphs and Security, A study by a Subpanel of Sandia's
Senior Scientists and Engineers, October 21, 1999, Sandia, NM;
available at http://www.fas.org/sqp/othergov/polVqraph/sandia.htmi.
---------------------------------------------------------------------------
These Seniors, whose expertise is in physics, chemistry, and/or
mathematics, do not pretend to be psychologists, psych ophysiologists,
or psychometricians. But they do know how to read research reports and
to evaluate statistical evidence and probabilities. In their Executive
Summary, they concluded that
1) There were no adequate studies to support polygraph screening
2) It is impossible to predict what error rates to expect
3) Polygraph testing could drive away existing innocent, talented
workers who have provided value to national security programs,
and it would deter prospective, talented employment candidates
from considering a career in the national laboratories
4) Because few spies are likely to be detected, real subversives may be
more likely to become insidersparticularly if over-reliance on
polygraph testing leads to reduced emphasis on other security
and counterintelligence methods.
conclusion
Personnel screening cannot be scientifically justified. If the
polygraph charts obtained from security screening tests were scored
objectively, large numbers of innocent employees would be expected to
fail. They do not because the tests are scored subjectively, with few
failing. Claims that these tests have deterrent value are not supported
and are unlikely to be true as government employees learn that
virtually no one fails these tests (see footnote 8). Claims that they
have utility due to admissions made during testing are not supported by
empirical evidence (again, see footnote 8). There is no evidence they
catch spies, and it is likely that spies can learn to use
countermeasures to defeat them. When bright, talented government
workers and employee prospects come face to face with the requirement
that now or in the future they will have to pass repeatedly a test that
is the equivalent of playing Russian roulette with their careers, they
are likely to opt for other careers. Over the long term, employee
morale is likely to suffer, as will the nation's national defense as
the best and brightest employees are lost to government employment.
Chairman Hatch. Mr. Smith?
STATEMENT OF JEFFREY H. SMITH, PARTNER, ARNOLD AND PORTER,
WASHINGTON, D.C.
Mr. Smith. Mr. Chairman, it is good to be back up in the
Senate this morning and I commend you and the Committee for
taking up this extremely important issue.
The arrest of Robert Hanssen proved once again that no
government is immune from espionage or treachery. The arrest of
Aldrich Ames sent a shockwave through the CIA. The arrest of
Robert Hanssen did the same to the Bureau. It is important, I
think, to learn the right lessons from the Ames and Hanssen
cases and not the wrong ones.
I have been privileged over the years to look at these
issues a number of times as Chairman of the Joint Security
Commission, as Chairman of the special panel that looked at
what went wrong with the Ames case at the CIA, as General
Counsel of the CIA, and again more recently for Director Tenet.
All of these reviews point to the importance of a thoroughly
professional counterintelligence service and one cannot, and I
know this Committee will not, examine the polygraph solely by
itself without looking at the broader issues of our
counterintelligence programs.
The key to any intelligence officer is integrity. The first
responsibility of an intelligence officer is to, obviously,
prevent Pearl Harbors, and key to that, key to analysis, key to
operations, is always integrity. And how one maintains
integrity of an intelligence officer in a world that is
shrouded in deception and steeped in secrecy is a very
difficult issue. The job of a counterintelligence officer is to
try to find an intelligence officer before he or she loses
their moral bearings and engages in espionage. A polygraph can
be an important tool in that, but it is by no means the only
answer.
As my colleague, Dr. Iacono, pointed out, polygraph is not
perfect. Innocent people have failed them and guilty people
have passed them. As the Senate Select Committee on
Intelligence report on Mr. Ames, he passed two polygraph exams
while he was actively conducting espionage for the Soviet
Union. At the same time, the polygraph has produced important
results and many of those are classified. Some, we might be
able to talk about this morning. But it is certainly true that
the polygraph has resulted in important admissions and
disclosures directly related to intelligence activities as well
as ordinary crime.
In my view, there are three key elements that any polygraph
program must have. First, the examiner must be a trained and
experienced investigator with a long-term career opportunity at
his or her employment agency. It should not be a dead-end job.
Second, the agency must have procedures that will vigorously
protect the rights and dignity of all employees. And third, no
adverse personnel action should be taken solely on the basis of
a polygraph examination.
The FBI is now under pressure to make greater use of the
polygraph. If it chooses to do so, it must do so wisely. Many
of the reforms made in the wake of the Ames case improved
counterintelligence efforts. Chief among these was greater
cooperation with the CIA and the FBI.
Other changes had a dark side. According to reports in the
Washington Post, the FBI and the CIA reviewed the polygraph
records of a large number of CIA employees and identified many
who seemed to have problems. Under procedures required by law
adopted in 1994, those cases were referred to the FBI, which
subsequently opened criminal investigations. In some cases, the
CIA identified and dealt with serious problems. Other cases
revealed nothing more than a significant physiological response
to a polygraph question. Many of these cases languished for
long periods at the FBI before finally being returned to the
CIA, where the officer could at last resume his or her career.
More recently, CIA has implemented procedures to protect
careers while these investigations proceed, but I remain
concerned that we are still taking actions against individuals
based solely on, in the absence of corroborating evidence,
solely on significant physiological response to a focused
counterintelligence question.
If we are going to use the polygraph, Mr. Chairman, we have
to use it right. If we had never begun to use the polygraph, a
strong case could be made that we should not now start. But we
are doing it and we have to use it using procedures that
adequately balance the rights of the individual against the
rights and the need to protect national security information.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Mr. Smith.
[The prepared statement of Mr. Smith follows:]
Statement of Jeffrey H. Smith \1\, Arnold and Porter, Washington, DC
Mr. Chairman, it is a pleasure to appear before the Committee this
morning, and I commend you for convening a hearing on this extremely
important subject.
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\1\ Partner, Arnold & Porter, Washington, DC. Former General
Counsel, CIA, and former General Counsel, Senate Armed Services
Committee.
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The arrest of Robert Hanssen proved, once again, that no
organization of this government is immune from espionage or treachery.
Seven years ago, the arrest of Aldrich Ames sent a shock wave through
the CIA. The recent arrest of Hanssen has done the same to the Bureau.
Despite the pressure we all feel to respond quickly in order to prevent
future counterintelligence breaches, it is important for us to learn
the right lessons from both the Ames and Hanssen cases. In this regard,
I commend you, Mr. Chairman, Senator Specter and the other members of
this Committee for the leadership you are showing with respect to
counterintelligence matters and for your desire to explore the complex
policy and technical issues related to the use of the polygraph for
counterintelligence purposes.
I was privileged to serve as Chairman of the Joint Security
Commission created by then-Secretary of Defense Les Aspen and Director
of Central Intelligence Jim Woolsey in 1993 and 1994 to look at the
security procedures of the government. Our final report made many
recommendations, including several focused on counterintelligence and
the polygraph. When Ames was arrested, Director Woolsey asked me to
chair a special panel that looked at what went wrong in the Ames case.
For that purpose, former Secretary of Defense Harold Brown and former
National Security Adviser General Brent Scowcroft joined our
Commission. Our review, as well as others in the Executive Branch and
Congress, led to a number of important changes. I believe these efforts
have produced marked improvement in counterintelligence. Probably the
most important change was vastly better cooperation between the FBI and
CIA. But the Hanssen case shows how far we still have to go.
Our intelligence agencies are our first line of defense--our early
warning system. Their most important job, at the end of the day, is to
ensure there are no more Pearl Harbors. They must also provide
unvarnished analysis to the President, Congress and other policymakers.
It is imperative that their analysis be unaffected by policy
considerations. On occasion, they are also required to carry out
dangerous covert actions to achieve a national objective.
In all roles--collection, analysis, and operations--the integrity
of the individual officer is the single most important quality he or
she must possess. Officers must maintain that integrity in a world of
secrecy and deception. Secrecy and deception are integral aspects of
intelligence and counterintelligence activities. It is absolutely
imperative for intelligence officers, whether they be at the CIA, in
the military services, or at the FBI, to maintain their ethical and
moral bearings so that they can be scrupulously honest when dealing
with their colleagues, conducting their analysis, and engaging in
operations. In all professions integrity is important, but in few
professions is integrity more critical than in the fields of
intelligence and law enforcement. When an officer fails to maintain his
or her integrity or loses his or her bearings, the consequences can be
disastrous--as happened with Aldrich Ames and Robert Hanssen.
Counterintelligence must identify officers who fail to maintain
integrity or who have lost their bearings before they cause disastrous
consequences. Counterintelligence is very hard work in any society--and
it is especially hard work in a democratic society. We are an open
society and correctly pride ourselves on being a trusting people. We
have a healthy suspicion of authority, and we are leery of secrecy and
uncomfortable with deception.
The need for integrity points to a related, and I believe, critical
point. We live in the Digital Age, in which information technology is
diffusing into all areas of our public and private lives. Yet
technology, by itself, cannot deliver security. At the end of the day,
counterintelligence is all about people.
As you have observed, Mr. Chairman, we cannot consider the use of
the polygraph without an appreciation of the larger context of how we
are organized to conduct counterintelligence and recruit people to do
counterintelligence.
Mr. Chairman, I fear that the United States has not adequately
recruited, promoted, and rewarded the very best counterintelligence
officers. Too often, counterintelligence and security officers are not
widely admired within their organizations. I wonder, for example, how
many graduate students in Russian studies at our top universities are
approached by the CIA and FBI. In contrast, the British
counterintelligence agency, MI5, recruits heavily at Britain's best
universities. We should be doing the same. Our intelligence agencies
are hampered by the low government salaries and, in some instances, by
the academic community's general skepticism toward the intelligence
community stemming from our country's experience in the 1960s and
1970s. But counterintelligence is inherently fascinating and, in my
view, the CIA, the FBI, and the military services should be seeking to
recruit counterintelligence officers at the very best universities in
the country.
Even when our intelligence agencies succeed in recruiting the best
and the brightest, many of them do not pursue a position in
counterintelligence. The CIA has been successful in recruiting some of
our top graduate students of Russian affairs to become analysts of
Russia, but it is much harder to persuade them to become
counterintelligence or security officers.
We pay a grave price for this. In my experience,
counterintelligence work is some of the most important work available
in government. We need government leadership at the highest levels to
strengthen our counterintelligence services.
As this Committee knows, Director Freeh and Director Tenet have
recently announced a number of significant changes in the
counterintelligence organization and policies of our government. Those
changes, known as ``CI-21,'' for ``Counterintelligence in the 21''
Century,'' are a dramatic improvement and should be of great benefit.
But the key remains people.
Having described the counterintelligence landscape, let me now turn
to the specific issue before us today: the polygraph.
At the outset, let me say that the polygraph is only one tool
available to American counterintelligence. It must be considered along
with all the other measures we take to protect ourselves and our
secrets. Many elements contribute to a strong and effective
counterintelligence program, beginning--as I have discussed--with the
quality of our personnel and extending through a determined effort to
penetrate the intelligence services of our adversaries.
The polygraph is a simple instrument measuring certain
physiological responses following a set of questions asked by an
examiner. The basic theory is that when a person knowingly lies, he or
she will have a measurable physiological response--for example, a
change in breathing, heart rate and galvanic skin reaction.
However, the polygraph is not perfect. Honest people have
``failed'' polygraph examinations while dishonest people have
``passed'' them. The polygraph is intrusive and may be abused. If
misused, the polygraph can cause morale to deteriorate and ruin the
careers of innocent people. Perhaps most importantly, it can lead to
overconfidence--as it did at the CIA before the arrest of Ames.
A well-administered polygraph program must contain several
important safeguards:
First, the examiner must be a trained and experienced investigator
with long-term career opportunities at his or her employing agency.
Second, the agency must have procedures that will vigorously
protect the rights and dignity of all employees.
Third, no adverse personnel action should be taken solely on the
basis of the results of a polygraph examination.
The FBI is now under pressure to make greater use of the polygraph.
If it chooses to use the polygraph, it must do so wisely. The polygraph
is only one tool in an effective counterintelligence program. Many in
the CIA felt that there could never be a spy at the Agency, in large
part because the officers were routinely polygraphed, even before the
Ames incident. Unfortunately, they were wrong.
No amount of technology can substitute for strong management that
is alert to individuals who are behaving in a way that suggests the
need for investigation. With respect to Ames, his alcoholism and poor
performance should have been a red flag for management to pay close
attention. The CIA has now instituted management practices to pick up
on such signals.
Many of the reforms made in the wake of the Ames case improved
counterintelligence efforts. Chief among these was greater cooperation
between the CIA and FBI--and a recognition that the CIA was not immune
to having a spy in its midst.
Other changes, however, had a dark side. According to reports in
the Washington Post, the FBI and CIA reviewed the polygraph records of
a large number of CIA employees and identified many who seemed to have
problems. Under procedures required by a law adopted in 12994, those
cases were referred to the FBI, which subsequently opened criminal
investigations. In some cases, the CIA identified and dealt with
serious problems. Other cases revealed nothing more than a
``significant physiological response'' to a polygraph question. Many of
these cases languished for long periods at the FBI before finally being
returned to the CIA, where the officer could at last resume his or her
career. More recently, the CIA has implemented procedures to protect
careers while investigations proceed. This is an example of the kind of
sophisticated policy that is needed to balance the rights of
individuals against the need to protect national security.
In deciding whether to expand the use of the polygraph, we should
also note that the number of people with knowledge of sensitive
counterintelligence investigations goes far beyond the CIA and FBI.
Justice Department lawyers, officials at other agencies, military
officers, and White House/National Security Council staff often have
access to highly classified information. As this Committee knows,
certain Members of Congress and the senior staff of the intelligence
oversight committees are, by law, kept ``fully and currently informed''
of sensitive matters as well. Are we prepared to polygraph these
persons as well?
If we had never begun to use the polygraph, a strong case could be
made that we should now start. But we already are using it, and it has
proven to be a very valuable tool. It has directly led to valuable
information in many investigations--in cases involving both applicants
for employment and current employees. It is also a significant
deterrent.
But much work still lies ahead. Agencies must constantly struggle
to find the right balance between the rights of individual citizens and
the needs of national security. Further research must be done to
improve the instrument and techniques employed. For example, I am
encouraged by research into computerized polygraphs that would
eliminate much of the subjective aspect of ``interpreting'' the
results.
The polygraph is an effective tool in the effort to preserve our
security, but it has a cost. Our goal must be to make that cost--in
terms of innocent lives harmed--zero. To achieve that goal, we should
make sure that our management practices and personnel policies are
geared toward attaining the highest level of counterintelligence.
Thank you, Mr. Chairman. I look forward to answering any questions
that you and the Committee may have.
Chairman Hatch. Mr. Zaid?
STATEMENT OF MARK S. ZAID, ESQ., COUNSEL, LOBEL, NOVINS AND
LAMONT, WASHINGTON, D.C.
Mr. Zaid. Thank you, Mr. Chairman. Distinguished members of
the Committee, I appreciate the opportunity to appear before
you. This is obviously an extremely important and timely topic
in the wake of Agent Hanssen's arrest on espionage charges, but
there's been a knee-jerk reaction that something more must be
done to protect our National security interests. I agree with
the sentiment, but the FBI has prematurely caved in to public
pressure to expand its polygraph program in order to quell the
flames of this more recent outcry. Yet, this will likely have
the same effect as throwing gasoline on the embers of a dying
fire.
For the last 2 years, I have represented unsuccessful
applicants for Federal employment who have fallen victim to
polygraph policies. Two lawsuits are pending against the FBI,
DEA, and Secret Service. I also routinely represent or advise
Federal employees and contractors who run into problems of
security matters, which oftentimes involves polygraphs.
With my testimony, I wish to emphasize five key points. The
Federal Government's use of polygraph examination is based more
on a perception of insecurity on how best to address difficult
security problems than one based on reason or logic. The policy
has driven the science rather than the other way around. Each
year, Federal agencies are accusing Americans falsely of crimes
or of lying on various matters, and as many as 66 percent of
those who are actually guilty of these acts go undetected.
Second, most Federal polygraph examinations are screening
tests for applicants or for routine reinvestigations of current
employees, yet there are no known studies that support the
validity of these types of tests. Even the government's own
experts have condemned the use of screening tests.
Third, there is a lack of standardization pertaining to the
use of polygraph screening throughout the Federal Government.
Depending upon the agency, polygraphers routinely have
demonstrated abusive and threatening conduct which improperly
stimulates a person's physiological responses, and there are
very few, if any, legitimate avenues to seek redress against
the polygraphers.
Four, though Attorney General John Ashcroft recently
admitted that the false positive rate is 15 percent, there is
little or no due process accorded applicants for Federal
employment who have fallen victim. An inconclusive or
unfavorable finding automatically results in your job offer
being rescinded and these results will be disseminated to other
agencies. In addition to concerns of false positive results,
current Federal employees are prone to be victimized by
retaliatory polygraph exams, and an inconclusive or unfavorable
result very often will lead to career-ending damage for that
employee, even though no guilt has ever surfaced or evidenced.
You'll often hear about the utility value. Nobody questions
the utility value. People have confessed at polygraphs. The
question is, is it the device that is doing it or the method of
interrogation? I have got law enforcement clients who will tell
me stories of how suspects will confess, persuaded to confess
because of the use of a lie detector, but the lie detector was
the police car antenna that some other officer honked the horn
every time an answer was given and told the suspect they were
lying, or a photocopying machine that had a piece of paper in
it that said, ``you are lying'' once the print button was
pushed.
Let me briefly address two agencies where some major
problems are at. Mr. Smith referenced some of the problems at
the CIA. There are at least 300 employees who have been in
polygraph limbo since the Ames case who have only shown
significant physiological responses but no evidence of
wrongdoing has ever emerged. The FBI has taken these cases,
most of the times with contempt, because there is very little
information to investigate. But during this time, these people
are not promoted and they are never given overseas assignments,
and for people, especially within the Directorate of
Operations, that is a career-ender for those individuals.
Sometime in 1997 or 1998, CIA polygraphers actually
reported to the Justice Department's Public Integrity Section
that they were instructed by CIA management to fail certain
employees. They also revealed that they were taught how to
sensitize examinees during pre-testing interviews so as to
create the likelihood of false positives. As far as I know,
these allegations have never been investigated.
There is also evidence that the CIA uses polygraphs as a
means of retaliation against employees who file EEO complaints
or grievances. Within one to 2 months of filing these
complaints, these individuals all of a sudden have an
acceleration of their routine security investigations,
sometimes one or 2 years in advance of when they are scheduled,
and as we all know, usually, it is 5 years. Most of the time,
it is seven or 8 years.
The Secret Service has been the agency I have received the
most complaints about. Their polygraphers have been abusive,
hostile, arrogant, banged their fists on the table, slapped
their thighs, and routinely yell or scream at examinees. They
ask personal questions about marital infidelities and even
sexual relations with animals.
Some key points, as the time runs out: Most agencies fail
to tape record or audiotape polygraphs. That would protect both
the session and the examinee, one would think. There is
evidence of bias of polygraphers that affects the test. Mr.
Smith mentioned the Aldrich Ames case and the fact that he
passed two exams, which shows there was not much in the way of
deterrent value. In the 1980's, about 30 Cubans defected to the
United States to the CIA. All passed polygraph examinations,
and it was later found out that they were all double agents for
the Cuban government.
In closing, the late Senator Sam Irvin Jr. once stated that
polygraph testing smacks of 20th century witchcraft. Dr.
William Marsten, the Harvard psychologist who many consider to
be the father of the modern polygraph, also created the popular
comic book character Wonder Woman. It is no coincidence that
her magic lasso requires those who feel its bind to tell the
absolute truth. To discover if Robert Hanssens, other Robert
Hanssens, exist within the Federal Government, we may as well
put our faith in Wonder Woman's magic lasso as much as the
polygraph. Thank you.
Chairman Hatch. Thank you, Mr. Zaid.
[The prepared statement and attachments of Mr. Zaid
follow:]
Statement of Mark S. Zaid, Esq.,\1\ Lobel, Novins and Lamont,
Washington, DC
Mr. Chairman, distinguished members of the Committee, thank you for
the opportunity to appear before you and offer my comments on issues
surrounding the federal government's use of polygraphs. I applaud the
Committee's interest in this topic.
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\1\ Of Counsel, Lobel, Novins & Lamont, 1275 K Street, N.W., Suite
770, Washington, D.C. 20005. Tel. No. (202) 371-6626; Fax No. (202)
371-6643; E-Mail: [email protected]. Mr. Zaid specializes in litigation
and lobbying on matters relating to international transactions, torts
and crimes, national security, foreign sovereign and diplomatic
immunity, defamation, the First Amendment, and the Freedom of
Information/Privacy Acts. Additionally, Mr. Zaid serves as the
Executive Director of The James Madison Project, a non-profit
organization with the objectives of reducing secrecy, promoting
government accountability, and educating the public on national
security matters. The views expressed by Mr. Zaid are his own and do
not necessarily reflect the views of any organization or entity with
which he is or has been affiliated.
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This is, of course, an extremely important and timely topic. In the
wake of the arrest of FBI Special Agent Robert Hanssen on espionage
charges, there has been a knee-jerk reaction that something more must
be done to better protect our national security interests. I fully
agree with that sentiment. However, every time a spy is caught, or a
lapse in security is detected, a public outcry for change erupts.\2\
And each time this occurs there are those who lobby to expand the use
of polygraph examinations as the means by which to expose those who
would betray our nation, steal our secrets or commit crimes while a
federal employee. We must not react so quickly to these understandable
concerns. Unfortunately, the FBI has already caved in to public
pressure and expanded its polygraph testing in order to quell the
flames of this more recent outcry. Yet, expanding polygraph use is more
akin to throwing gasoline on the embers of a dying fire. Even when
assuming the utility of the device, the polygraph machine causes far
greater harm to our country than we derive a benefit.
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\2\ For example, following the Walker family espionage cases in
1985, Defense Secretary Caspar W. Weinberger appointed a commission to
study the problem of protecting classified defense information against
espionage. The commission recommended expanded use of the polygraph as
a counterespionage tool. ``Defense Officials Urge Efforts to Counter
Espionage'', Aviation Week and Space Technology, Dec. 2, 1985, at 24.
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For nearly the last two years I have represented unsuccessful
applicants for federal employment who have fallen victim to the
government's polygraph policies. Presently, there are two lawsuits,
which are the first of their kind, pending against the Federal Bureau
of Investigation (``FBI''), the Drug Enforcement Administration and the
United States Secret Service (``USSS'') that challenges their use of
pre-employment polygraph examinations.\3\ I also routinely represent or
advise current federal employees or government contractors within the
law enforcement, military and intelligence communities who encounter
difficulties in security matters, which oftentimes involves polygraph
examinations.
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\3\ See Croddy et al. v. FBI et al., Civil Action No. 00-0651 (Mar.
15, 2000 D.D.C.)(EGS); John Doe #6 et al. v. FBI et al., Civil Action
No. 00-2440 (Oct. 11, 2000 D.D.C.)(EGS). The defendants have filed
Motions to Dismiss in both cases, and the parties are awaiting the
scheduling of oral arguments or a decision from the Court. Copies of
the pleadings in these cases can be found at the following websites:
www.nopolygraph.com, www.stopolygraph.com and www.antipolygraph.org.
Additional information regarding polygraph policies can be found at
7wwwjamesmadisonproject.org and wwwfas.
orglsgplothergovlpolygraphlindex.html.
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My testimony today will address the existing policy issues
surrounding the use by the federal government of polygraphs for
screening purposes, the manner in which federal agencies utilize the
device and the consequences that arise from its use. I will also
briefly summarize the legal issues in the two pending civil lawsuits.
While I will not present detailed evidence regarding the science of the
device, given that there are those far more qualified than I testifying
on this aspect, I wilt cite to specific scientific studies where
relevant.
Overview Of Testimony
With my testimony, I wish to emphasize six key points. In listening
to today's testimony, this Committee should not be under the mistaken
impression that the science will determine the outcome of the policy.
Rather the current federal polygraph programs require a difficult
policy examination of the unequal balance between harm and benefit. My
key themes unequivocally tilt that balance against utilizing the
device.
The federal government's use of polygraph examinations is
based more on a perception of insecurity on how best to address
difficult security problems than one based on reason or logic.
The policy has driven the science rather than the other way
around. Even if one operated under the assumption that the
polygraph protagonists' science is more accurate and that the
device has a certain degree of utility, there is still ample
room for abuse and error to occur, which it does. Each year
federal agencies falsely accuse thousands of honest and
trustworthy Americans of lying or having committed criminal
acts. And many of those who are truly guilty of such offenses
go undetected by the device. When considering this dispute as
more a matter of policy, rather than debating the science or
utility, one must conclude the polygraph causes more harm to
our society than benefit.
The overwhelming majority of federal polygraph examinations
that are administered are screening tests either for applicants
or are part of security reinvestigations for current employees.
Yet, there are no known studies that support the validity of
these types of tests. Indeed, even the government's own experts
have condemned the use of screening tests.
There is a lack of standardization pertaining to the use of
polygraph screening examinations throughout the federal
government. Depending upon the agency, polygraphers routinely
have demonstrated abusive and threatening conduct which
improperly stimulates an examinee's physiological responses.
Moreover, there are no legitimate avenues available to
challenge the conduct of a polygrapher. Oversight of
polygraphers is not a high priority. Few agencies truly police
the polygraph police.
Though the government acknowledges the existence of false-
positive rates as high as 15%, there is little or no due
process accorded applicants for federal employment who have
fallen victim to polygraph abuse. An inconclusive or
unfavorable finding automatically results in the loss of a
conditional job offer. Moreover, federal agencies will
disseminate polygraph results to other federal, state or local
agencies without hesitation thereby stigmatizing these
individuals on a continuing basis.
In addition to concerns of false-positive results, current
federal employees are prone to be victimized by retaliatory
polygraph examinations. Indeed, evidence exists that some
agencies instruct their polygraphers to intentionally fail
employees or generate false-positive results. An inconclusive
or unfavorable polygraph result for an employee very often
signifies career-ending damage, even though no collaborating
evidence of their guilt may ever surface.
There are alternative methods available other than polygraph
examinations that will at least provide an examinee with a
reasonable opportunity to respond to any allegations that arise
from suspicious conduct.\4\
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\4\ 1t is beyond the scope of this hearing to truly and properly
address this very important question, but some examples include having
counterespionage experts train security investigators, requiring all
employees to file detailed annual financial disclosures and the
creation of databases that examine employees' personal foreign travel,
foreign contacts and outside activities. Obviously, the necessary
balance to ensure some adequate level of personal privacy must be taken
into consideration, as well as precautions to prevent abuse and allow
for challenges.
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what actually is a polygraph?
A modern polygraph machine measures respiration at two points on
the body; on the upper chest (thoracic respiration), and on the abdomen
(abdominal respiration). Movements of the body associated with
breathing are recorded such that the rate and depth of inspiration and
expiration can be measured. The polygraph machine also measures skin
conductance or galvanic skin response. Electrodes attached to the
subject's fingertip or palm of the hand indicate changes in the sweat
gland activity in those areas. In addition, the polygraph measures
increases in blood pressure and changes in the heart rate. This
measurement, known as the cardiovascular measurement, is obtained by
placing a standard blood pressure cuff on the subject's upper arm.
Finally, the polygraph may also measure, by means of a plethysmograph,
blood supply changes in the skin which occur as blood vessels in the
skin of the finger constrict due to stimulation.
A polygraph examiner purports to interpret these readings while
asking a series of questions. The examiner forms an opinion of the
subject's truthfulness by allegedly comparing the physiological
reactions to each set of questions. A number of extrinsic factors,
however, affect polygraph validity. Because the examiner must formulate
the questions, supplement the data with his own impression of the
subject during the exam, and infer lies from a combination of the data
and his impressions, the level of skill and training of the examiner
will effect the reliability of the results. A polygraph examiner's
interpretation of polygraph results is not, in fact, true evidence of
conduct. It is merely the opinion of an individual with no knowledge
about any of the facts surrounding the subject matter of the questions.
``The roots of the modern lie detector stretch back to antiquity.
Like modern methods, early techniques to ferret out lies often relied
on the behavior exhibited by liars--sweaty palms, dry mouth, shifting
gaze, racing pulse. In China, for example, suspected liars were fed a
handful of dry rice. If they could spit it out, the thinking went, they
were telling the truth. If the rice stuck to their tongue, they must
have something to hide.''\5\
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\5\ ``New Facts about Shaving Revealed by Lie Detector!'' ``Are
polygraph tests lying to us?'', Baltimore Sun, November 3, 2000.
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past congressional positions against polygraph use
This hearing, of course, is not the first time the Congress has
directed its attention to polygraph policies. Congressional
representatives and Committees have consistently derided the use of
polygraph examinations. Some examples follow.
The late Senator Sam J. Ervin, Jr., once stated about polygraph
testing that
[t]he process smacks of 20th century witchcraft . . .The burden of
proof should be on those who assert the effcacy of polygraph in
predicting the behavior of prospective . . .employees. There
have been practically no efforts to compile this proof . . .Why
then do [employers] have such blind faith in these devices? In
my opinion, it is directly related to the role of science and
technology in our society--the cult of the `expert'. There is
an increasing belief that anything scientific must be more
reliable and rational than the judgment of men . . .There is no
necessity for these infringements of freedom and invasions of
privacy; but even if there were a necessity for them, I believe
that every citizen should answer like William Pitt: `Necessity
is the plea for every infringement of human liberty. It is the
argument of tyrants; it is the creed of slaves.'\6\
\6\ Lykken, David T. A Tremor in the Blood: Uses and Abuses of the
Lie Detector 213 (1998).
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In 1964, a subcommittee of the House Government Operations
Committee concluded that there was no adequate evidence to establish
the validity of the polygraph.\7\ In 1974, a House Committee chaired by
Congressman Moorehead recommended that polygraph usage ``be completely
discontinued by all government agencies for all purposes.'' \8\ In
1979, the Oversight Subcommittee of the Select Committee on
Intelligence of the U.S. House of Representatives was notified that
polygraph testing was a central component of the preemployment
screening process for applicants for positions in most federal law
enforcement and intelligence agencies. Approximately 75% of those
denied security clearances by the CIA or NSA resulted from the
polygraph. Based in part on this information, the subcommittee urged
the director of the CIA to institute research on ``the accuracy of the
polygraph in the pre-employment setting and to establish some level of
confidence in the use of that technique.'' \9\ To date, no credible
research supporting the use of preemployment polygraph screening has
been published.
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\7\ SeeUs of Polygraphs as ``lie detectors'' by federal agencies:
Hearings Before a Subcommittee of the Committee on Government
Operations, 88th Cong. (1964).
\8\ Abram S. The Complete Poly?graandbook (1989).
\9\ Lykken, supra note 6 at 161.
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In November 1983, the Office of Technology Assessment issued a
report entitled ``Scientific Validity of Polygraph Testing: A Research
Review and Evaluation''. The report concluded that ``the available
research evidence does not establish the scientific validity of the
polygraph test for personnel security screening'' and that the
``mathematical chance of incorrect identification of innocent persons
as deceptive (false positives) is highest when the polygraph is used
for screening purposes.'' \10\
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\10\ A copy of the report can be found at http: //www. nopolygraph.
comlotastudy. htm.
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Particularly in light of this report, additional hearings were held
and The Employee Polygraph Protection Act of 1988, 29 U.S.C. Sec. 2001
.et seq , was ultimately enacted.\11\ It generally prohibits the
private sector from using polygraphs in preemployment screening and
sharply curtails the permissible uses of the polygraph in specific-
incident investigations. Prior to the enactment of this legislation, it
was estimated that a minimum of 400,000 truthful employees were
wrongfully labeled deceptive and suffered adverse employment
consequences each year. The federal government, however, exempted
itself from the provisions prohibiting preemployment testing.
---------------------------------------------------------------------------
\11\ See Employee Polygraph Protection Act: Hearing on S.185 Before
the Senate Committee on Labor and Human Resources, 100th Cong., 1st
Sess. (1988).
---------------------------------------------------------------------------
On September 29, 1997, Dr. Drew C. Richardson, a FBI Supervisory
Special Agent, testified before the Senate Judiciary Committee and
condemned the use of the polygraph machine. He testified, in part, that
``[w]ithin the Bureau, polygraph examiners who have little or no
understanding of the scientific principles underlying their practice,
report to mid-level managers who are largely ignorant of polygraph
matters. These mid-level managers in turn report to executives, who
have real problems for which they seek needed solutions (e.g., the need
to protect national security from the danger of espionage, and the need
to hire employees with appropriate backgrounds). These executives are
left unable to evaluate that polygraph is not a viable solution and do
not comprehend that ignorance and mis-information are built into their
own command structure.'' \12\
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\12\ See http: //antipolygraph. orglhearingslsenat. . .lrichardson-
statement. shtm.
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Most recently, the FY2000 Intelligence Authorization Act asserted
that ``[p]olygraphing has been described as a `useful, if unreliable'
investigative tool.'' The Senate Intelligence Committee instructed the
Central Intelligence Agency (``CIA'') and FBI to assess ``alternative
technologies to the polygraph'' and report back to the Committee within
ninety days.\13\
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\13\ Wash Post Nat. Weekly, Aug. 2, 1999. The extent to which the
CIA and FBI submitted a report is unknown. Additionally, The National
Academy of Sciences, at the request of the Department of Energy,
recently begun a 15 month review of current polygraph policies. See e.
g., http://www4.nas.edu/webcr.nsf/MeetingDisplay2/BCSS-I-00-01-A?
OpenDocument.
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the federal government's use of polygraph screening tests
The majority of those circumstances where a polygraph is utilized
is in the screening of federal applicants for employment or a current
federal employee. The questions will typically differ between
applicants and current employees. The former will have to respond to
lifestyle questions (drug usage, sexual activities), while the latter
is predominantly limited to counterintelligence questions (unauthorized
disclosure of classified information, contact with foreign personnel).
Depending upon the agency, the format of the test will also differ.
There are no peer-reviewed scientifically accepted studies that
demonstrate the validity of such screening tests. Even the government's
own experts agree on this point.\14\ Thus, unlike an investigation into
a specific crime, there is no particular reason why a screening
examination is being administered in that no specific allegation is
being explored that has a perceived basis of merit. The tests are
nothing more than fishing expeditions.\15\
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\14\ Charles R. Honts, ``Counterintelligence Scope Polygraph (CSP)
Test Found to be Poor Discriminator'', Forensic Reports, 5:215-218
(1992);------, ``The Emperor's New Clothes: Application of Polygraph
Tests in the American Workplace'', Forensic Reports, 4:91-116 (1991);
Barland, G.H. et al, ``Studies of the Accuracy of Security Screening
Polygraph Examinations'', Department of Defense Polygraph Institute,
Fort McClellan, Alabama (1989).
\15\ As Spinoza, one of the greatest Western thinkers and
philosophers, wrote more than 300 years ago in his famous treatise
``Ethica ordine geometrico demonstrata'' (otherwise known as
``Ethics'')(1677): ``He who would distinguish the false from the true,
Must have an adequate idea of what is false and true.''
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Applicants For Federal Employment
Federal agencies use the polygraph machine in preemployment
settings in order to indiscriminately weed out individuals and avoid
the need to conduct an in-depth background investigation. This permits
the agency to avoid spending time and resources on individuals they may
possibly later seek to reject from employment.\16\ As a result,
however, thousands of innocent individuals are falsely labeled drug
users, drug dealers, terrorists and/or spies without any reasonable
opportunity to ever clear their name.\17\ After receiving a false-
positive reading that falls outside an agency's defined acceptable
parameters, the applicant is simply left out in the cold while the
agency continues to maintain the posture that the applicant is a liar.
The applicant's conditional offer of employment is immediately
rescinded.
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\16\ For example, the FBI has asserted in correspondence that the
``polygraph is an effective investigative tool which can save many
investigative man-hours, decrease the overall cost of investigations,
and provide valuable investigative leads or information which could not
otherwise be developed due to lack of evidence or other noteworthy
information.'' Copies on file with the author.
\17\ For example, according to an October 28, 1997, letter sent by
Donald Kerr, the Assistant Director of the FBI's Laboratory Division,
to Senator Charles E. Grassley, between March 1994, and October 1997,
``the FBI conducted approximately 16,200 preemployment polygraph
examinations. Of those, 12,930 applicants (80 percent) passed and
continued processing; 3,270 applicants (20 percent) were determined to
be withholding pertinent information. When these individuals were
interviewed about their unacceptable performance in the polygraph
session, 1,170 (36 percent) admitted to withholding substantive
information.'' See http://www.nopolygraph.com/kerr.pdf. While the FBI's
definition of ``substantive'' is unknown, based on the above FBI
figures up to 64 percent of those individuals (2,100) who were deemed
deceptive by the polygraph examiner may have been or were innocent of
any wrongdoing. Yet, their FBI files, which are available to other
governmental agencies, now reflect that they lied about a stigmatizing
topic.
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Although applicants and employees will be told their polygraph
results will be kept confidential, the information is often shared with
other intelligence and law enforcement agencies, whether that be
federal, state or local. Sharing is permitted through the routine use
exception of the Privacy Act.\18\ Not only does this result in
irreparable harm to these applicants, but it denies the federal
government's access to qualified and capable employees. Yet when it
suits the federal government's needs, an agency will not hesitate to
overlook an otherwise deceptive polygraph reading or denounce the
polygraph as unreliable.\19\
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\18\ See 5 U.S.C. Sec. 552a(b)(3).
\19\ 0n February 3, 1997, James K. Murphy, the Chief of the FBI's
Laboratory's Polygraph Unit in Washington, D.C. and a FBI polygraph
examiner since 1978, submitted a declaration to the United States
Military Court, Mid-Atlantic Region, Norfolk, Virginia, in the case of
United States v. Ens Patrick J Jacobson. USN. He stated that ``[i]t is
the policy of The Department of Justice to oppose all attempts by
defense counsel to admit polygraph results as evidence and to refrain
from seeking the admission of favorable examinations which may have
been conducted during the investigatory stage of a case . . .The FBI
uses the polygraph as an investigative tool and cautions that the
results should not be relied upon to the exclusion of other evidence or
knowledge obtained during the course of an investigation . . .This
policy is based upon the fact that, a) the polygraph technique has not
reached a level of acceptability within the relevant scientific
community, b) scientific research has not been able to establish the
true validity of polygraph testing in criminal applications, c) there
is a lack of standardization within the polygraph community for
training and for conducting polygraph examinations.'' See
www.nopolygraph.com/murphy.pdf. The following year, the Department of
Justice told the U.S. Supreme Court that polygraph evidence should be
inadmissible because of its inaccuracy. United States v. Scheffer, 523
U.S. 303 (1998). Thus, a serious inconsistency exists between the
government's use of polygraphs in criminal cases and its extensive use
of polygraphs to make vital security and preemployment determinations.
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Current Federal Employees
The extent to which current federal employees are subject to
polygraph testing, and the consequences from an inconclusive or
deceptive reading, varies from agency to agency. Those agencies that do
conduct polygraph testing of their employees, particularly from within
the intelligence community, typically conduct routine
counterintelligence examinations every five years or so. Depending upon
the results, employees may face adverse personnel actions, loss of
their security clearance \20\ or administrative limbo.
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\20\ Which is governed by internal agency regulations and Executive
Order 12,968, 60 Fed.Reg. 40245 (August 7, 1995)(establishing appellate
framework to challenge denial of security clearances).
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More detailed examples are below.
utility versus policy
In debating the need for the polygraph, you will often hear how
successful the device has been in enticing examinees to confess to all
sorts of crimes or acts. There is no significant dispute that use of
the polygraph has indeed led to confessions. The question is what
prompted the confession? The answer is that it is often not the
polygraph as a device, but the method of interrogation that led to the
confession. The perceived false notion that polygraph machines
accurately detect lies can lead to the extraction of confessions from
those who are either not that bright, as with many criminals, or who
simply genuinely believe in the utility of the device. Law enforcement
personnel throughout this country all have stories of how suspects have
been persuaded to confess because of the use of a ``lie-detector''.
Yet, the device was nothing more than a police car antenna (a law
enforcement officer would honk the horn after the individual provided a
``false'' response) or a photocopying machine (which would print out a
piece of paper that indicated the suspect was ``lying'').
The scientific community, as well as the government, admits to the
existence of false-positives, identifying someone as guilty when they
are really innocent, though the figures vary. Still, in announcing the
FBI's intention to expand its polygraph program, Attorney General John
Ashcroft admitted in a press conference that the false-positive rate is
15%.\21\ Yet, despite knowing that innocent persons will be falsely
accused, no adequate protections exist in any agency to address this
obvious problem. Moreover, the existence of false-negatives, i.e.,
guilty individuals who pass as innocent, significantly contributes to
the failure of the government's polygraph policies. Those who
successfully generate a false negative response, of course, have
avoided being caught. Yet, those who unfortunately generate a false-
positive fall victim to an unending process of scrutiny when they have
done nothing wrong.
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\21\ ``Spy-Wary FBI Agrees to Polygraphs'', Los Angeles Times, Mar.
2, 2001.
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Former FBI Special Agent Mark Mallah's experiences illustrate the
problem. In January 1995, he was asked to undergo a polygraph test. The
examination was a routine national security screening. Special Agent
Mallah was not under suspicion at the time. However, following the
examination, he was accused of ``deception'' with respect to the
question on unauthorized contact with foreign officials. Two weeks
later, he was instructed to report to Washington, D.C. where he
underwent two additional consecutive days of polygraph examinations and
lengthy interrogations. The polygraphers continually insisted that he
was being deceptive, but Special Agent Mallah continually denied the
accusations. He was then placed on administrative leave with pay
pending further investigation.
The FBI conducted a major and intrusive investigation which
included the raiding of his home and seizure of personal belongings.
For a two month period, he was even placed under twenty four hour
surveillance, seven days a week. The FBI interviewed numerous friends,
acquaintances, former roommates, colleagues, and members of his family.
The FBI even accused one of his friends of being an accomplice and
administered a polygraph test, which the individual ``passed''. Special
Agents showed up unannounced and surprised his wife at her place of
work, and asked to interview her right then and there. When she was
eventually interviewed, the FBI asked her to also take a polygraph,
which she declined to do. The FBI asked both of Special Agent Mallah's
brothers to take a polygraph test. One agreed, and he ``passed.''
Another Special Agent told one of Special Agent Mallah's friends that
there was ``significant evidence'' against him. This same agent told
Special Agent Mallah's brother he was certain that he was guilty.
After five months of investigation, he returned to work as a
Special Agent entrusted with a ``top secret'' clearance, a weapon and a
badge. Yet, despite his reinstatement, the ``problem'' still existed.
In October 1995, the FBI wrote that he was ``the subject of a security
reinvestigation involving your inability to resolve issues relating to
your associations with foreign nationals . . .as well as your
susceptibility to coercion as a result of your concealment of these
matters.'' No specifics were ever provided, and Special Agent Mallah
still denies to this day that these allegations had any merit. Finally,
the investigation was terminated in September 1996, nearly two years
after it began. The final outcome was a letter of censure and a two
week suspension for a trivial administrative issue and a minor
discrepancy in his FBI employment application. The letter of censure
was silent about unauthorized contacts with foreign offcials, which was
the alleged national security issue that launched the investigation in
the first place. Even though he had been finally exonerated, in disgust
with what occurred, Special Agent Mallah voluntarily resigned from the
FBI with a clean record.
current federal use of polygraph examinations
Polygraph examinations are administered throughout the federal
government, primarily by those agencies within the law enforcement and
intelligence communities. Those agencies that are more heavily
utilizing the device now include the FBI, USSS, CIA, Drug Enforcement
Administration, National Security Agency, Department of Energy,
Department of Defense, Bureau of Alcohol, Tobacco and Firearms, Defense
Security Service, and the U.S. Marshall's Service. Of course, polygraph
use applies not only to federal employees, but also to independent
contractors as well.
``The polygraph . . . has achieved a new status in the world of
counterintelligence in the past five years. The CIA and the FBI have
polygraphed at least 40,000 job applicants and employees in their
search for drug users and would-be spies. According to intelligence and
law enforcement officials, the polygraph has become the nation's number
one tool for safeguarding national security against penetration by
foreign agents.'' \22\
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\22\ ``Spy Detection, Inc.; A Test Of Honesty? Check That'',
Washington Post, May 23, 1999, at B 1.
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Though polygraphers for federal agencies all receive the same
initial training at the Department of Defense's Polygraph Institute,
the manner by which a polygraph is administered will vary between
agencies. Of course, the abuses that occur also vary between agencies.
Some examples are detailed below.
Federal Bureau of Investigation
The FBI has had a long history with the polygraph. In the late
1930s, J. Edgar Hoover, the icon director of the FBI, frowned on its
use because of a misidentification of a kidnapping suspect in Florida.
It was generally prohibited after this episode for decades, except for
use in limited circumstances. Throughout the tenures of different
directors, the question of polygraphing current employees every five
years on areas of espionage and sabotage routinely arose. Indeed, Judge
William Webster considered expanding the program in 1978. The proposals
were always rejected.\23\ In the wake of the Aldrich Ames case, the
current FBI Director, Louis Freeh, also rejected implementation of
routine polygraph examinations of employees.\24\
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\23\ FBI chief Freeh to explain polygraph dearth in wake of spy
charges'', Knight Ridder Newspapers, April 28, 2001.
\24\ ``Michael Kortan, an FBI spokesman, said FBI leaders worry
that more polygraphs would generate more lawsuits and scores of agents
would be placed in investigative limbo after `false positive'
readings--failing the polygraph out of nervousness when the person is
telling the truth.'' Id.
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However, the FBI did modify its policy in March 1994, to polygraph
any applicant for a full-time position with the FBI, no matter the
individual's level of responsibility. The FBI's polygraph screening
focuses exclusively on counterintelligence issues, the sale and/or use
of illegal drugs, and the accuracy and completeness of information
furnished by applicants in their employment applications. It has been
estimated that approximately 20%-40% of all FBI employee candidates
each year fail the polygraph examination, typically due to responses to
the drug use question.\25\
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\25\ When the FBI implemented its polygraph program in 1994, that
years' special agent class had already begun its training. It has been
alleged that approximately half the class failed resulting in the FBI
waiving the polygraph requirement until the next class.
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In the wake of the Hanssen case, the FBI has recently expanded its
polygraph screening program. By Memorandum dated March 16, 2001, the
FBI announced that beginning March 28, 2001, it would institute
counterintelligence-focused polygraph examinations to employees who
occupied certain assignments or occupations.\26\ It was estimated that
approximately 500 employees would be polygraphed over the next sixty
days. Id. at 3. With respect to those employees who experience trouble
with the polygraph, the Memorandum noted:
\26\ Copy on file with the author.
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Experience has shown that most FBI employees taking the
counterintelligence-focused polygraph examination successfully
complete the test. However, there may be a very small number of
employees whose tests are either inconclusive or are indicative
of deception. Polygraph examiners will attempt to fully resolve
all unexplained responses through the effective use of thorough
preand post-test interviews. If, upon completion of a thorough
examination, there is still an inconclusive or deceptive
response, it will be considered ``unexplained''. Consistent
with existing policy, no adverse action will be taken based
upon the polygraph results alone. However, more extensive
investigation will be initiated to resolve the unexplained test
results.
Id. Those employees who refuse to take the test will be subjected
to administrative actions which may include transfer, a finding of
insubordination and disciplinary action or a reevaluation of the
employee's security clearance. Id. at 3-4. Those who may encounter
trouble with the FBI's polygraph will certainly take no comfort in
knowing of the experiences of Special Agent Mallah. Nor are the FBI's
assurances that no adverse actions will be taken based solely upon the
polygraph results necessarily binding. The same assurances are falsely
provided to applicants.
The FBI has noted in correspondence that it ``uses the polygraph as
an aid to investigation and considers it highly reliable when used by a
competent and ethical examiner. It is one part of the screening process
and is designed to address issues that may not be resolved by more
traditional investigative methods.'' \27\ Donald Kerr, the Assistant
Director of the FBI's Laboratory Division, informed Senator Charles E.
Grassley by letter dated October 28, 1997, that the polygraph ``is not
a substitute for, but merely one component of, a thorough and complete
background investigation''. Yet, an applicant who fails, or registers
inconclusive during, a polygraph examination is automatically excluded
from employment and their conditional employment offer is immediately
rescinded.\28\ No background investigation is conducted to verify the
information, nor is the applicant provided a formal opportunity to
challenge the polygraph results.\29\
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\27\ Id.
\28\ Problems with the FBI's polygraph examinations extends beyond
new applicants. Many former FBI Special Agents, including those who had
distinguished careers, have failed polygraph examinations when trying
to either re-enter the FBI or attain a consulting arrangement. In
solely considering the results of the polygraph machine to arrive at
its suitability determination, the FBI literally accuses its former
agents of having committed crimes while on duty with the FBI; acts that
if true have still gone unpunished.
\29\ However, the FBI official policy, as set forth in various
correspondence, is that ``[a]ny applicant who does not successfully
pass an initial polygraph examination may request to be afforded a
second polygraph examination; however, certain criteria must be met.''
Copy of correspondence on file with author. While the criteria is not
publicly known, the FBI policy on this issue is contained in a Buairtel
dated May 1, 1995, captioned ``Special Agent Selection System (SASS)
Polygraph Policy''. Although applicants to the FBI have been notified
by letter that the ``FBI's policy regarding additional polygraph
examinations is consistent for all applicants'', there is absolutely no
rhyme or reason to the manner in which the FBI grants retests. It is
essentially an arbitrary process.
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Some of the specific concerns regarding the FBI's polygraph program
includes:
The FBI neither tape records or videotapes their examinations,
thereby precluding examinees an opportunity to challenge the
conduct of the polygrapher or identify potential errors in the
examination.
FBI polygraphers have demonstrated significant bias in their
perceptions of applicants, which affects the manner in which
the test is administered and the results achieved. For example,
one FBI polygraph examiner, Special Agent H. L. Byford, stated
in an e-mail dated August 6, 1999, that ``if someone has smoked
marijuana 15 times, he's done it 50 times . . ..Those who have
any doubts about how many times they used are going to fail.
Those who are certain that they only tried it once or three
times or five or whatever, will pass . . ..I got to tell you
though, if I was running the show, there would be no one in the
FBI that ever used illegal drugs!'' The FBI's present drug use
policy allows marijuana use so long as it was not during the
last three years or more than fifteen times, or if usage of any
illegal drug(s) or combination of illegal drugs, other than
marijuana, was not more than five times or during the last ten
years.\30\
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\30\ Another recent example of the influence of polygrapher bias
involves David Tenenbaum, an engineer for the Army Tank and Automotive
Command in Michigan. Tenenbaum, a devout Jew, became a suspect in 1996
of spying for Israel. Based on an alleged confession made during a
polygraph examination, the FBI searched Tenenbaum's home but discovered
nothing. It was later determined that the ``confession' 'was ``nothing
more than the polygraph examiner's opinion. The polygrapher . . . had
concluded that `because of devout religious beliefs and his strong
affinity towards Israel, he would have provided restricted information
to the Israelis based on his belief that the U.S. government should
freely share information with one of its closest allies.'' ``Government
facing charges of racism'', San Jose Mercury News, Oct. 13, 2000.
Although no charges have ever been filed against Tenenbaum, his
security clearance access was suspended.
---------------------------------------------------------------------------
I have included with my testimony copies of several sworn
declarations executed by former FBI applicants who detail their ordeals
at the hands of FBI polygraphers. See Exhibit ``1''.
Central Intelligence Agency
The call for the FBI to expand its polygraph program is often heard
amidst statements that the CIA routinely polygraphs its employees. The
intended message is that the CIA must then be more security conscience
than the FBI, and that since the policy seems to be working over at the
CIA, the FBI should follow suit. The fact, however, is that CIA's use
of the polygraph is fraught with abuse and problems.
In the wake of the Aldrich Ames fiasco in 1994, the CIA vigorously
implemented an intensive polygraph review. The result has been that in
excess of 300 employees remain in polygraph limbo. These individuals
registered a significant physiological response to a security question
but there is little or no collaboration to support suspicion of
wrongdoing Many of these cases are referred to the FBI for further
investigation where they are typically viewed with contempt, and
accorded low priority because there is little to investigate. Yet, for
the employees, this serves as the kiss of death to their career. No
promotions will be granted, and no overseas assignments will be
permitted. For a CIA employee within the Directorate of Operations,
falling into this limbo is essentially the end of their career.\31\
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\31\ Scientists employed at nuclear laboratories in the United
States face similar problems in light of the Department of Energy's
desire to expand polygraph testing in the wake of the Wen Ho Lee case.
While failure of the test alone allegedly will not result in
termination of the employee's position, the individual will be
transferred to work on less sensitive projects--a transfer that
effectively destroys the careers of most scientists.
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Unfortunately, there is little that can be done to remedy this
situation. The CIA makes it very difficult for these employees to
retain legal counsel, and even more impossible for legal counsel to
actually accomplish anything. The CIA will not release the governing
regulations, primarily because it asserts the documents are classified.
And even if counsel maintains a security clearance, the CIA will not
permit access. On these types of issues, the CIA plays by its own
rules.
Thus, it is not surprising that in 1997-98, CIA polygraphers
reported to the Department of Justice's Public Integrity Section that
they were instructed by CIA management to ``fail'' certain employees.
Additionally, they revealed that they were taught how to sensitize
examinees during pre-testing interviews so as to create the likelihood
of false positives. Notwithstanding these sensational allegations,
there is no evidence either the CIA or Department of Justice ever
conducted an investigation.
Yet, the CIA's mistreatment of one of its former staff attorneys,
Adam Ciralsky, provides further support for these allegations. The CIA
fired Mr. Ciralsky and revoked his top-secret security clearance, in
part, because he allegedly exhibited a ``lack of candor'' about
relationships with associates who may have been tied to Israeli
intelligence. Official CIA records, however, revealed that the CIA
tried to manipulate Ciralsky's polygraph tests so as to transform
demonstrably ``non-deceptive'' results into ``deceptive'' results. A
CIA memo, written two weeks before Ciralsky's final polygraph, stated
that CIA Director George Tenet ``says this guy is outta here because of
lack of candor . . .. Subject is scheduled for [another] poly . . ..
Once that's over, it looks like we'll be waving goodbye to our
friend.'' Thus, official records indicated that the CIA were set to
base Ciralsky's dismissal on the outcome of a polygraph examination
that he had yet to take. In fact, Ciralsky underwent and successfully
completed counterintelligence polygraphs in 1993, 1996 and 1998, at
which times his answers were consistently deemed to be ``strongly non-
deceptive.'' Yet when Ciralsky submitted to CIA polygraph examinations
in August and October 1997, he was accused of ``deception'' with regard
to issues and events which pre-dated, and hence were covered by, his
earlier polygraphs.
Moreover, evidence exists that the CIA uses polygraph examinations
as a means of retaliation against those employees who file EEO
complaints or grievances. Within one to two months of filing such
complaints, many employees have experienced a significant acceleration
of their ``routine'' security reinvestigations, sometimes more than one
to two years ahead of schedule. CIA employees typically will not face a
periodic security reinvestigations until five years have passed, and
because of budgetary and staff constraints many investigations do not
occur until seven or ten years later.
United States Secret Service
Of all the agencies I have dealt with, I have received the most
complaints concerning the conduct of USSS polygraphers. The stories I
have been told have been genuinely consistent. The polygraphers have
been abusive, hostile, arrogant, banged their fists on the tables or
slapped their thighs and routinely yell or scream at examinees.
Questions have been asked regarding marital infidelities and sexual
relations with animals.\32\ I have included with my testimony copies of
several sworn declarations executed by former USSS applicants who
detail their ordeals at the hands of USSS polygraphers. See Exhibit
``2''.
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\32\ The American Polygraph Association condemns the use of
personal and intrusive questions. It does not condone any type of
inquiry into sexual preferences or activities. See http://
www.polygraph.org/apa5.htm.
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Although polygraph sessions are audiotaped, ostensibly in order to
allow challenges to the manner in which examinations were conducted,
the USSS steadfastly refuses to release the audiotapes, whether
pursuant to the Freedom of Information Act, 5 U.S.C. Sec. 552 (a) or
through the legal discovery process.
Examples Of Other Systemic Problems Associated With Polygraph Testing
That Occur Throughout The Federal Government
Many of the problems associated with polygraph testing are not
isolated at one particular agency. Rather, they are endemic of the
culture that exists within the federal government. Beyond those already
identified above, these problems include:
Those agencies that administer multiple polygraph exams to an
individual, whether an applicant or a current employee,
sometimes utilize the same polygrapher. Oftentimes, even when a
different polygrapher is utilized, the polygrapher is aware of
the prior test results. This taints the objectivity of the
examination.
Polygraph examiners receive only 12-14 weeks of training from
the Defense Department's Polygraph Institute, yet are expected
to become experts in understanding human physiological
responses that scientists have been studying for years without
fully unlocking the secrets. Sheila Reed, a former research
psychologist at the Defense Department's Polygraph Institute
who was responsible for developing and standardizing the test
format and operator's manual currently used by several federal
agencies, told the National Journal ``that government-trained
examiners don't understand psychology, physiology, and
electronics, and that their procedures are `unethical'. In
addition, she said, her preliminary research at the institute
showed that polygraph examiners do have biases that can affect
results.'' \33\
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\33\ ``Polarized Over Polygraphs'', National Journal, Sept. 9,
2000, at 2801.
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Applicants are often ``tricked'' into appeasing polygraphers'
allegations of deception only to then be penalized by the
agency for having ``lied'' on their applications. For example,
agencies will require an applicant to state the specific number
of times marijuana had been used. Given that oftentimes the
usage occurred years before, it may be understandably difficult
to come up with an exact number. If ``deception'' is indicated
in response to a drug usage question, the polygrapher will
persuade the applicant to admit to additional usage (which is
not inconsistent with what the applicant told the recruiting
agent). The applicant then loses his/her conditional offer of
employment for ``lying'' on their application.
The fact that individuals have failed polygraph examinations
at one federal agency yet contemporaneously successfully passed
a polygraph examination regarding the same issues at another
agency.
the polygraph's failure to expose spies
Today, the outcry for increasing the use of polygraph examinations
arises in the context of catching spies. Suspected spy Robert Hanssen
was acknowledged never to have taken a polygraph examination during his
entire FBI career. Yet, even if he had, the overwhelming likelihood is
that this smooth operator would have passed. False-negative responses
occur at a frequency far greater than false-positives. One of the most
comprehensive studies conducted by the government of security screening
polygraph examinations revealed a rate as high as 66%.\34\
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\34\ Barland, G.H. et al, ``Studies of the Accuracy of Security
Screening Polygraph Examinations'' (Department of Defense Polygraph
Institute, Fort McClellan, Alabama, 1989) at iii. The 1983 report
issued by the Office of Technology Assessment noted false-negative
results approaching 30%.
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In 1986 and 1991, Aldrich Ames, the former CIA official turned-spy,
convinced his polygraph examiners that the deceptive readings he was
allegedly displaying were easily explained away. As a result, Ames
``passed'' his tests. While the Ames case is indicative of wide-ranging
problems that can arise solely through examiner conduct, it more
importantly reveals that the polygraph had little deterrent value, at
least for Ames, who had started his spying in 1985.\35\
---------------------------------------------------------------------------
\35\ See e.g. David Wise, Nightmover 146-47,210-211 (1995); Tim
Weiner et al., Betrayal 89-91 (1995).
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Even worse, during the 1980s, approximately thirty Cubans who
served as spies for the CIA passed extensive polygraph examinations.
Following the subsequent defection of a Cuban intelligence officer and
his debriefing, it was revealed that all of the CIA's ``Cuban agents''
were actually double-agents working for the Cuban Government. Each and
every one of them had defeated the CIA's polygraph examinations.
In fact, it is a simple feat to defeat the polygraph, which
undermines the entire purpose of utilizing it to determine the truth.
The very persons most likely to be the subject of a polygraph
examination can use any number of techniques to ``truthfully'' lie by
using countermeasures. For those less skilled in the art of spycraft,
various instructions on how to defeat the polygraph are publicly
available in books and on the Internet.\36\
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\36\ For example, for $47.45 you can order ``How to Sting the
Polygraph'' written by Douglas William, a former police polygrapher,
which instructs you on ways to beat the polygraph. See http://
wwwpolygraph.coml.
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legal issues surrounding polygraph challenges
The controversy surrounding polygraph reliability is not a subject
unknown to the courts of this land. From the Supreme Court's decision
upholding a blanket ban on the admissibility of polygraph evidence in
military courts because ``there is simply no consensus that polygraph
evidence is reliable,'' United States v. Scheffer, 523 U.S. 303, 309
(1998), to the Ninth Circuit Court of Appeals decrying that the
polygraph machine has developed the ``misleading reputation as a `truth
teller','' United States v. Marshall, 526 F.2d 1349, 1360 (9th Cir.),
cert. denied, 426 U.S. 923 (1976), step by step courts have limited the
use of this alleged scientific device.
Surprisingly, in the wake of statutory prohibitions regarding the
use of the polygraph as a screening device and continuing examples of
its fallibility, federal agencies have increased their use of the
device. The majority of applicants who are branded as liars by pre-
employment polygraphs are invariably victimized by questions regarding
drug usage. The events in question, i.e., incidents of marijuana being
smoked, typically occurred years before the examination, often more
than a decade earlier. Recalling the exact number of times is almost
farcical, unless perhaps the applicant only used the substance once or
twice on memorable occasions.
The fact that so many years have gone by significantly impacts upon
the polygraph's reliability. United States v. Demma. 523 F.2d 981, 987
(9th Cir. 1975)(en banc) (``probative value of the [polygraph] evidence
diminished by the lapse of time between the occurrence of the events
and the taking of the test''). Of course, there is little difficulty
for an applicant to recall the fact that they never used illegal
narcotics even once in their life; a confession many government
polygraphers seem to have trouble accepting based on their own personal
biases.
As I mentioned above, the governments' polygraphers often have
little sophisticated training and their professionalism ranges across
the board. Some scream at applicants, pound their fists, ask
inappropriate questions about sexual deviance, marital affairs and
mental instability. Others may level accusations of lying, or even lie
themselves in order to extract false confessions. Innocent victims of
the polygraph are common, particularly because ``[m]ultiple variables
may influence the results of a polygraph test, including the motivation
of the subject, his physical and mental condition, the competence,
integrity, and attitude of the operator, the wording of the relevant
questions, the appropriateness of the control questions, and the
interpretation of the resulting graph.'' United States v. Givens, 767
F.2d 574, 585 (9th Cir. 1985). The bottom line is that ``the polygraph
test in fact relies upon a highly subjective, inexact correlation of
physiological factors having only a debatable relationship to
dishonesty as such. The device detects lies at a rate only somewhat
better than chance.'' U.S. v. Piccinonna. 885 F.2d 1529, 1542 (11th
Cir. 1989).
Applicants for federal employment
The two lawsuits that are now pending seek injunctive, declaratory
and monetary relief for eleven plaintiffs pursuant to the
Administrative Procedure Act, 5 U.S.C. Sec. 701 et sea., the Federal
Declaratory Judgment Act, 28 U.S.C. Sec. 2201, and the Fifth Amendment
to the Constitution of the United States. The first Complaint was filed
on behalf of seven individuals on March 15, 2000. The second Complaint
was filed for four individuals on October 11, 2000. Both complaints
assert that the government is violating the plaintiffs' due process and
privacy rights, as well as disregarding applicable agency regulations
in rescinding employment offers based solely on polygraph results. The
claims can be summarized as follows:
Applicants who ``fail'' polygraph tests are effectively
stigmatized and precluded from obtaining federal employment in
their chosen career field.
The plaintiffs have lost out on other federal employment
opportunities because of prior false-positive results.
No due process protections exist to enable examinees to
challenge false-positive polygraph results.
Federal agencies will unhesitantly disseminate polygraph
results to other agencies due to the routine use exception
within the Privacy Act. In any event, the applications for law
enforcement or intelligence positions at most federal agencies
require admitting whether the applicant had previously sat for
a polygraph examinations, and the results.
Applicants are questioned on personal matters unrelated to the
work they would perform if hired.
At this early stage in the litigation, the government has asserted
the extreme position that applicants have no constitutional
protections, that agency decisions to use polygraphs and then base
suitability decisions upon the results are within their unchallengable
discretion and that the only available relief exists through amending
personnel records through the Privacy Act or reporting the alleged
misconduct to the Office of Special Counsel. Unfortunately, these
latter two suggested remedies offer nothing of the sort.\37\
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\37\ The Privacy Act does not permit challenging agency actions or
``opinions'', and the government is taking the position that polygraph
results are nothing more than the ``opinion'' of the polygrapher. The
Offce of Special Counsel does not have jurisdiction to hear claims
against many of the agencies that utilize polygraph examinations, such
as the FBI, CIA or NSA, and it has yet to accept for investigation even
one polygraph complaint.
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The government's Motions to Dismiss both lawsuits have now been
fully briefed, and the plaintiffs are awaiting the scheduling of oral
arguments or a decision from the Court.\38\
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\38\ Time, unfortunately, did not permit a full legal analysis into
issues surrounding use of the polygraph throughout the United States.
Upon request, I would be more than willing to provide the Committee a
detailed legal analysis of legal challenges asserted in the state and
federal court systems, as well as an analysis of federal regulations
governing polygraph examinations.
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CONCLUSION
No matter the science that may tend to support it, no matter the
perceived utility that may be derived from it, the fact of the matter
is that the use of polygraphs by the federal government consistently
leads to false accusations of wrongdoing against innocent persons, and
no adequate protections exist to prevent this from occurring. Moreover,
the device routinely fails to identify those individuals who truly are
committing criminal acts.
If the government truly wants to expose spies from within its
ranks, it may wish to consider another creation of Dr. William M.
Marston, the Harvard psychologist who many consider to be the father of
the modern lie detector and the first to realize its commercial
possibilities in the 1920s.\39\ Marston, under his pseudonym ``Charles
Moulton'', is probably more famous for having created the popular comic
book character Wonder Woman. It is no coincidence that her magic lasso
requires those who feel its bind to tell the absolute truth. To
discover if other Robert Philip Hanssens exist among its ranks, the
federal government may as well put its faith in Wonder Woman's magic
lasso than to rely on the accuracy of the polygraph. Both are derived
from notions of science fiction.
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\39\ In 1915, Marston devised a primitive lie detector based on
blood pressure. He was one of the first to realize the lie detector's
commercial possibilities. In 1938, Look magazine described how Marston
sometimes used his lie detection techniques in marital counseling. He
also showed up in full-page ads testifying to the close shave offered
by Gillette razors: ``New Facts about Shaving Revealed by Lie
Detector!'' ``Are polygraph tests lying to us?'', Baltimore Sun,
November 3, 2000.
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Our judicial system is designed to free ten guilty people in order
to protect one innocent person from being punished. Continuing use of
the polygraph stands that very principle on its head, and disgraces the
honor and loyalties of many otherwise trustworthy and dedicated
Americans. The utilization of polygraph examinations for screening
purposes should, therefore, be stopped.
EXHIBIT ``1''
EXHIBIT ``2''
Chairman Hatch. Mr. Keifer?
STATEMENT OF RICHARD W. KEIFER, PAST PRESIDENT, AMERICAN
POLYGRAPH ASSOCIATION, APOPKA, FLORIDA
Mr. Keifer. Thank you for the opportunity to appear before
the Committee, Mr. Chairman. My name is Richard Keifer. I'm
currently an independent polygraph examiner residing in
Orlando, Florida. Until I retired in 1996, I was a special
agent of the FBI and a past manager of their polygraph program.
I have also served as the President of the American Polygraph
Association.
I believe in the protection of individual rights, the
monitoring of the government, and the protection of national
security. I have used the polygraph in every manner in the
counterintelligence arena. That includes the testing of new
applicants, transfers from other agencies, defecters, illegals,
double agents, spies, and in internal investigations to cover
the same. It is my opinion the polygraph is necessary to
preserve and protect our individual rights by the prevention
and detection of espionage.
Responsible critics have hypothesized theoretical
weaknesses, but have no working experience to support their
assertions. I have, over time, carefully listened to critics
and looked for problems they predicted in practice and have, in
fact, implemented policies and procedures to avoid potential
problems. While some errors occur, the case against polygraph
is overstated. While the critics sometimes portray polygraph
examiners in unflattering terms, the truth is, the quality and
the abilities of each individual examiner is the critical
difference and is what makes these programs work.
I have provided the Committee with a statement for the
record, which I would now like to read during my time period.
Espionage is occurring in government agencies. Polygraph is
one of several tools available that can be used as an internal
control to prevent espionage and to identify spies. It is my
opinion that in a security screening polygraph examination,
Robert Hanssen would have reacted with greater than a 99
percent. Because, statistically speaking, others taking the
test may also react but not be guilty, other internal control
measures, such as FBI investigative resources, would need to be
coupled with the polygraph results before certifying espionage
activity. Evaluating whether or not security screening should
be implemented requires an understanding of what the predicted
polygraph outcomes would be and evaluation of what has already
occurred in existing programs and the costs involved.
A realistic appraisal of the polygraph requires an
understanding of its capabilities and limitations. When making
decisions based on polygraph results, one must factor in the
confidence levels of the various outcomes. Security polygraph
examinations must be objectively conducted and evaluated. The
examiners must be able to determine the effectiveness of the
official testing and know when retesting is warranted.
For example, false positives can occur. This is when people
react to the question but are, in fact, telling the truth. The
skill of the examiner is essential in recognizing the
possibility of a false positive and the need to take additional
measures, such as retesting. Polygraph is not a perfect
science, but in my opinion, it is a very valuable tool to
ferret out those who would commit espionage against the United
States.
How much confidence can we have in a single security
polygraph examination? Confidence starts with validity. An
estimate of validity can be established from laboratory studies
and by projecting the experiences of actual testing. Next, you
need to estimate the base rate, or the percentage of the
population that bears the characteristics we are seeking, in
other words, spies. Prior studies indicate the polygraph has an
accuracy range between 90 and 99 percent. Estimates of the
number of spies in any organization vary. My estimate in 1994
was there might be a maximum of three spies in a population of
10,000.
Based on the results of scientific studies, when conducting
a screening polygraph, you have a high confidence, 99.99
percent confidence, your decision is clear, is correct. In
other words, the error rate with people who pass the test is
minuscule. On the other hand, when a person registers deceptive
or specific reactions, the confidence in that outcome decreases
to approximately 2.9 percent. This occurs because,
statistically, a large percentage of deceptive reactions will
be false positives on an initial test.
In the interest of time, I will skip ahead on my paper and
state that I assumed on the initial examination, five to 10
percent of the population would not successfully complete it
and would require reexamination, which I believe will resolve a
substantial number of these cases and reduce the percentage of
false positives. On the unresolved, substantial resources would
have to be expended to clear up.
Countermeasures was mentioned. That is overstated. I
believe the laboratory overstates the effectiveness of
countermeasures. The psychological dynamics of actual testing,
as well as anti-countermeasures used in the field, are
overlooked when assumptions are made regarding how effective a
countermeasure would be. Also, in order for countermeasures to
be effective, they must remain classified.
There has been criticism in the past that polygraph
screening programs just routinely pass everyone and that the
effort is symbolic, only to create a false sense of security.
Experts in the field of polygraph have spent considerable time
conducting studies and have determined various statistical
probabilities based on scientific modalities. Therefore, by
analyzing a specific polygraph program's prior testing results
and comparing these results to the statistical probabilities,
one could determine if a polygraph program was effective or
ineffective.
Conclusion: The use of the polygraph is an aid to
investigations and not a substitute for investigations as a
well established policy. To solve an extremely difficult
investigative and security problem requires the use of internal
controls and the use of all investigative tools. I believe a
well-managed polygraph program is part of the solution to that
problem. Thank you very much.
Chairman Hatch. Thank you so much.
[The prepared statement of Mr. Keifer follows:]
Statement of Richard W. Keifer, Past President, American Polygraph
Association, Apopka, Florida
Espionage is occurring in government agencies. Polygraph is one of
several tools available that can be used as an internal control to
prevent espionage and identify spies. It is my opinion that in a
security screening polygraph examination, Robert Hansen would have
reacted with greater than 99% certainty. Because, statistically
speaking, others taking the test may also react but not be guilty,
other internal control measures, such as FBI investigative resources,
would need to be coupled with the polygraph results before certifying
espionage activity. Evaluating whether or not a security-screening
program should be implemented requires an understanding of what the
predicted outcomes would be, an evaluation of what has already occurred
in existing programs, and the costs involved.
A realistic appraisal of the polygraph requires an understanding of
its capabilities and limitations. When making decisions based on
polygraph results, one must factor in the confidence levels of the
various outcomes. Security polygraph examinations must be objectively
conducted and evaluated. The examiners must be able to determine the
effectiveness of the initial testing, and know when retesting is
warranted. For example, false positives can occur. This is when people
react to the question, but in fact are telling the truth. The skill of
the examiner is essential in recognizing the possibility of a false
positive, and the need to take additional measures, such as retesting.
Polygraph is not a perfect science but, in my opinion, it is a very
valuable tool to ferret out those who would commit espionage against
the United States.
How much confidence can we have in a single security polygraph
examination?
Confidence starts with estimates of validity. An estimate of
validity can be established from laboratory studies and by projecting
the experiences of actual testing. Next, you must estimate the base
rate, or the percentage of a population that bears the characteristic
we are seeking. Prior studies indicate that the polygraph has an
accuracy rate between 90% and 99%. Estimates of the number of spies in
any organization vary. My estimate in 1994 was there might be a maximum
of 3 spies in a population of 10,000.
Based on the results of scientific studies, when conducting a
screening polygraph, you will have high confidence (99.99 %) on
decisions to clear people. In other words, the error rate on those who
pass the test is very miniscule. These conclusions are labeled no
deception indicated (NDI) or no specific reactions (NSPR). On the other
hand, when a person registers deceptive (DI) or specific reactions
(SPR) on the exam, the confidence level decreases to 2.9%. This occurs
because statistically, a rather large percentage of the deceptive
reactions will be false positives on the initial test. The benefit of
polygraph screening, at this point, is that you will identify a smaller
pool of people who ``potentially'' could be committing espionage. It is
then possible to concentrate your security resources by applying other
internal control measures, such as investigation, to the smaller group
who reacted on the test. Additional polygraph testing and investigation
should reduce the number of potential spies even further. Actual
testing results should help us identify how many unresolved cases exist
and the costs of resolving them.
Traditionally, reexaminations have been part of clearing those who
react on their first examination, and are presumed to effectively
reduce the number of false positives. The DOD annual report suggests
that most of these reactions are cleared through admissions. It is
likely a number of security violation type of admissions would be made
and would be resolved. It is also likely a number would not, however
skilled interviewers might still might uncover the spy. In my opinion
even with high validity assumptions, 5 to 10 % of your population will
not successfully complete the initial examination. Subsequent
reexaminations should resolve a number of cases and reduce these
percentages. Substantial resources would have to be expended on any
unresolved cases.
countermeasures
The danger from countermeasures, while real, is overstated. I
believe laboratory studies overstate the effectiveness of
countermeasures. The psychological dynamics of actual testing, as well
as anti-countermeasure methods used in the field, are overlooked when
assumptions are made regarding the effectiveness of countermeasures. In
order for the anticountermeasure methods to be effective, they must
remain classified.
polygraph program effectiveness
There has been criticism in the past that polygraph-screening
programs just routinely pass everyone and that the effort is symbolic
only to create a false sense of security. Experts in the field of
polygraph have spent considerable time conducting studies and have
determined various statistical probabilities based on scientific
modalities. Therefore, by analyzing a specific polygraph program's
prior testing results and comparing these results to the statistical
probabilities, one could determine if that specific polygraph program
is effective or ineffective.
conclusion
The use of the polygraph as an aid to investigations and not a
substitute for it is a well-established policy. To solve an extremely
difficult investigative and security problem requires the use of
internal controls and the use of all investigative tools. I believe a
well-managed polygraph program is part of the solution.
Chairman Hatch. I am going to turn over the Committee to
Senator Specter, who will ask my questions and other questions,
as well. I just want to thank each of you for being here.
Because of my schedule, I am going to rely on Senator Specter
and Senator Durbin to ask the appropriate questions, but this
has been a very interesting hearing for me and we, appreciate
all of you being here.
Senator Specter, I turn the time over to you.
Senator Specter. [Presiding.] Thank you very much, Senator
Hatch, Mr. Chairman. Let us set the time clock for 10 minutes
as a guide to our rounds.
I regret not being here earlier. I chair the Subcommittee
on Labor, Health, Human Services, and Education and had
attempted to have this hearing set for 11, so we may have to
re-cover some of the ground.
Mr. Keifer, you testify that polygraph results are accurate
90 to 99 percent of the time, is that correct?
Mr. Keifer. That is correct.
Senator Specter. And what is your basis for that
statistical conclusion?
Mr. Keifer. I have looked at the results of the research
done by the Department of Defense and I have also made a
projection based on my experiences in real testing in terms of
discovering errors and working backward. In other words, I have
spent time looking at how many mistakes we have made.
Senator Specter. Starting with the Department of Defense,
what is their scientific study and empirical result?
Mr. Keifer. Yes.
Senator Specter. What is it?
Mr. Keifer. They have several involving the test for
espionage and sabotage, and the latest one, I think, showed a
98 percent accuracy rate in the detection of innocent people.
Senator Specter. In the detection of innocent people?
Mr. Keifer. Yes. It was less accurate in the detection of
spies. That is a laboratory study.
Senator Specter. Well, how accurate was it in the detection
of spies?
Mr. Keifer. I think it was correct around 80 percent of the
time, and I have those figures in my briefcase, sir.
Senator Specter. How do you know that it is accurate 80
percent of the time?
Mr. Keifer. How do I know that that study is accurate 80
percent of the time, or real----
Senator Specter. What is the basis for professional
judgment that the polygraph is reliable 80 percent of the time?
Mr. Keifer. It is experience in conducting tests and being
involved in over 20,000 FBI investigations.
Senator Specter. You have been in 20,000 examinations?
Mr. Keifer. Either conducting them or reviewing them.
Senator Specter. When you conduct or review an examination
and a person does not display any indicators of unreliability,
then you conclude that the person has answered the questions
correctly?
Mr. Keifer. I would have a high confidence in that
conclusion, yes.
Senator Specter. Now you say a high confidence. Is that
different from a conclusion that the person was honest in the
answers?
Mr. Keifer. It is. You have to make a decision. You know
there could be some error in it. In the case of clearing on a
polygraph, it is very little and very comfortable in making
that decision.
Senator Specter. Well, I do not see how you come to the
conclusion on 80 percent because of the difficulty of knowing
whether the person has told the truth. The person may not have
told the truth and may pass the test and there is no evidence
or extrinsic way of determining that the person has, in fact,
told the truth. The person may have concealed information.
Mr. Keifer. If we are talking about the counterintelligence
type of test, where you are trying to uncover espionage, there
is very little data out there on how many people are actually
committing it. I mean, you have a very small number, and so you
would almost--only a lot of investigation would uncover those
people. If you have other areas where you are testing where the
base rate or frequency of the event is much greater, then you
are likely to obtain information from them to help verify your
decisions.
Senator Specter. Well, I want to come to your point that
you estimate there are three spies in a population of 10,000,
but before coming to that, I am trying to come to grips with
the validity of a conclusion that a polygraph is reliable 90 to
98 percent of the time. I just do not see how you get there.
You measure the responses. There are some indicators of
deception. If a person passes it, they may have been lying to
you. The only way you would know that is if you know the
person's background and have some comprehensive way of
establishing whether the person did or did not do the things
they represented.
Mr. Keifer. First, in the laboratory study, you know the
correct answers, all right, so whatever you get on a polygraph,
you can validate against whatever role that person was in the
study.
Senator Specter. How do you know the correct answers if you
are----
Mr. Keifer. Well, in a study, they are preassigned. Certain
people are assigned to be guilty and lie. Others are not
deceptive and then they are sent in blind for an examiner to
test and evaluate to see if he can find out what role they are
playing in the study. Then the question becomes, how much do
those studies replicate real-life testing?
What we did in the FBI, since it is difficult to establish,
is, one, you would have some deceptive results verified by
confessions. Some you would not. We conducted an error study
where we canvassed everybody in the FBI to report any error
that you have ever noted on a polygraph or even think was made
because we wanted to get to that very bottom-line question, how
accurate is it in real-life testing? The results of that error
study came back at less than a percent they thought we were
making mistakes on.
In experience over years, you get feedback oftentimes if
you are making errors in cases. I have not received the
feedback from any source that that number of errors, a
significant number of errors is being made in polygraph
testing.
Senator Specter. I do not know what the absence of the
feedback shows, but let me turn to you, Mr. Capps. What is your
professional judgment as to the accuracy of polygraph
examinations?
Mr. Capps. In a specific issue test, where we are testing
for a single issue--did you steal that missing document?--the
research demonstrates that it is about 90 percent accurate.
When we are talking about screening, we are talking about less
accurate. Let me try to give Mr. Keifer some help----
Senator Specter. To stick with specific issues----
Mr. Capps. Yes, sir?
Senator Specter.--what is the scientific basis for a
conclusion of 90 percent accuracy?
Mr. Capps. There are a number of studies, sir, that have
been published in both scientific and trade journals where
hundreds of subjects have been studied over a period of years,
primarily in field examinations where they are based on
confession or in laboratory studies, as well.
If I may, let me explain the laboratory study just a bit.
What we might do in a laboratory study is recruit people out of
a newspaper--by newspaper to participate in the study. We would
ask them to meet someone who they believe is a case officer.
The case officer would tell them to go to a Federal building to
go into a particular office to go to a classified computer, or
computer they believe is classified, to take a disk from that
computer that says ``classified'' on it and then to destroy
that disk and put it in an envelope. So there is some degree of
realism in what they are told to do.
We know what group has been programmed to do this. This is
the deceptive group. And then we have another group who is not
told to do those things, so this is the truthful group. So we
have ground truth in the laboratory studies where we can
determine who is supposed to be deceptive and who is not
supposed to be deceptive.
So when Mr. Keifer talks about an 80 percent accuracy rate,
he is talking about based on that type of scenario.
Senator Specter. Mr. Zaid, what is your thinking about
these studies and the representation of 90 percent accuracy?
Mr. Zaid. I obviously do not agree with them, Senator
Specter. You have studies, of course, that go the other way.
But I think the key issue here is to look in the screening
context. When we are talking about exposing espionage or
sabotage or counterintelligence issues, we are talking about a
screening format test.
The Defense Department Polygraph Institute has done very
few studies on this, and the studies that have been done,
including this major study in 1989, actually reflects that
screening methods do not work, that up to 66 percent of those
who are actually lying or guilty are not found and that a great
number of innocent people are accused. The government
scientists or the government experts that have worked on these
studies have almost consistently and unanimously said that
screening tests do not work and should not be used.
Senator Specter. Mr. Keifer, do you disagree with what Mr.
Zaid interprets that 1989 study to be? Are you familiar with
the 1989 study that he referred to?
Mr. Keifer. I have seen that study. The results speak for
themselves. I think it is dated and I do not think it reflects
current methodology in the field.
Senator Specter. Nineteen-eighty-nine is dated?
Mr. Keifer. In terms of what--there is more recent research
out on it.
Senator Specter. Well, has the methodology changed in the
intervening 12 years?
Mr. Keifer. Different types of testing--there are different
formats for different types of testing and some of those have
changed over time. I am aware of the results of that study and
there--it does not speak well of the screening.
Senator Specter. You are aware of the study and it does not
speak well for what?
Mr. Keifer. Well, there is very low accuracy rates they
attained in that study, but I haven't reviewed that one
recently.
Mr. Zaid. Senator, if I could just add one quick thing
about Mr. Hanssen's case, as Mr. Keifer said about the 99
percent that he would have shown deception, you know, it is
easy to look back in retrospect, but let us take a moment to
take a look at that. If Mr. Hanssen had taken a screening test
at some point during his career and showed either deception or
an inconclusive reading, there would have been a further
background investigation or check into his activities.
Now, from what at least has been reported publicly, it does
not look like anything would have been found out. Mr. Hanssen
has been sort of an enigma compared to other spies like Mr.
Ames, who, if you had done a background check into his
financial, you would have found out certain things. So he might
as well have just fallen into the same false positive rate,
which, as I think you were in the room when I said it, Attorney
General Ashcroft says that there is a 15 percent false positive
rate.
Innocent people, current Federal employees, will be accused
of wrongdoing, and as a result, they are going to be put into
administrative limbo, and I think no matter how many times you
want to say or how many studies you want to cite that says,
well, that will ultimately be cleared up, if you think that
does not impact on these people's career, then you are just on
another planet here. The problem is, there are no safeguards
within the system. It might be on paper, but in reality, there
are no safeguards to protect those who are falsely accused. So
you need to balance this.
Senator Specter. I would like to come back to you, but the
red light has been on during the course of your answer. Let me
yield now to Senator Durbin. Go ahead, Mr. Zaid.
Mr. Zaid. That was actually the conclusion of it, sir.
Mr. Iacono. Senator Specter, if I may, I could make a
comment on this.
Senator Specter. Go ahead.
Mr. Iacono. I just have here the Department of Defense
Annual Report to Congress for Fiscal Year 2000, and the test
that is being discussed is being used to detect espionage and
sabotage is called the TES, the Test for Espionage and
Sabotage, and reading from the government's report, it says
there have been two previous research studies on the test,
which indicated that the test had an accuracy rate in the range
of 80 to 90 percent. However, the sample sizes were rather
modest. The subsequent study with a larger sample did not
produce accuracies as high.
That is reading right from the government's own report. I
do not know if Mr. Capps could explain what the lower
accuracies are. I do not know what they are. But the
government's own data supports accuracy rates of 80 to 90
percent, and then a subsequent larger study apparently did not
fare as well. This was----
Senator Specter. Did the subsequent larger study specify
what the accuracy rates were?
Mr. Iacono. In this report, there is no discussion of the
study at all, just that sentence that explains that the results
apparently were disappointing.
But what I would like to say in addition is that these
studies that we are talking about are laboratory studies and I
think it is ill advised to make conclusions about the accuracy
of polygraph testing in the field based on laboratory work.
There are several reasons for this, but one has to do with the
fact that in real life, the stakes are very different than they
are in a laboratory study, where a volunteer research subject
is told to pretend they are engaging in an act of espionage and
then we try and determine whether or not they are doing it.
In real life, if somebody is engaging in espionage, they
are going to be clever enough to figure out how to do that
well, and probably if they understand that they may have to
pass a polygraph test, clever enough to figure out how these
tests work and what they can do to foil the outcome of the
test. Because a polygraph test involves two types of questions,
a relevant question and a control question, all a spy would
need to do is learn how to augment the response,
physiologically augment the response to the control question,
and this can be done by doing simple things, such as thinking
stressful thoughts or biting your tongue right before you
answer this question. And there are published research studies
in top scientific journals that show that people can learn how
to adopt these techniques and fool experienced polygraph
examiners, who not only cannot tell they are guilty in beating
the test, but also they cannot tell they are using these
procedures.
It is also the case that in real life, when people are
confronted with the accusation of espionage, this is a
threatening, arousing accusation. So an innocent person in real
life is not anything like an innocent person in a laboratory
study. If you are in a laboratory study and you are told you
are suspected of make believe espionage, this is not a threat
to you. It is not a threat to your career. But in real life,
when you undergo one of these tests, you are, in effect, being
accused with something that is very important to you. It is a
threat to your patriotism and to your well-being by implication
that you might be found guilty.
Just as when you are justly accused of something, you
blush, your heart races, your palms sweat, but when you are
unjustly accused of something, you blush, your heart races,
your palms sweat. A polygraph test can measure these types of
things, and an unjust accusation can produce the same type of
arousal as a just accusation that is met with a denial, and
that is why innocent people in real life are more likely to
fail a polygraph test than they are in laboratory studies.
So I think it is very important if we are going to talk
about the accuracy of these tests that we talk about them with
situations that are very similar to those in real life or that
ideally would involve real life cases and not make believe
cases in laboratory settings.
Senator Specter. Senator Durbin?
Senator Durbin. Thank you very much, Mr. Chairman.
It is interesting, as I reflect on the larger issue here,
that I think throughout the course of human history, we have
always been looking for a test of truthfulness. In primitive
times, it might have been a physical test, whether you could
endure some sort of a test of your survival as to whether or
not you were truthful or blessed or whatever the
characterization might be. Historically, when it comes to our
system of jurisprudence, the test is whether or not a jury
believes it or not, and now I think we have found in more
modern times that we look for an objective, mechanical means to
determine a person's voracity.
As an attorney, I never advised clients to take a
polygraph. I just did not believe in them. I still do not. They
are largely inadmissible in most courts of law. I think the
Federal Supreme Court has ruled, and others have, as well, that
they are not admissible. Perhaps State and local courts can
reach other conclusions, and there are a variety of reasons for
that.
I guess some feel that if a jury saw a polygraph test, they
would think, well, that is really the good measure of
truthfulness and we do not have to reach our own conclusion,
and some who just question whether the science is reliable at
all.
I take it, Dr. Iacono, you speak about the fact that this
is so subjective, that polygraph testing is subjective, that
the examiner is really establishing the parameters of the
questions, what is truthful, what is not, what is a
physiological response that is worthy of note and what is not.
I have always thought the same thing. Though we tend to say
that this is an objective test, there is a lot of subjectivity
involved in it. Is that the point that you were making in your
testimony?
Mr. Iacono. Yes, it is. There is a lot of subjectivity. In
fact, a lot of people would disagree that it should even be
designated as a test, because a test, at least as psychologists
use this term, would refer to a standardized procedure that
leads to an objective outcome, and polygraph testing is not
standardized and it is not objective.
There is one aspect of a polygraph test where there is an
effort made at standardization and this is in the actual
scoring of the physiological data. But the scoring of the
physiological data alone does not often determine the outcome
of the test, that is, what the examiner's verdict is as to
whether the person is truthful or deceptive.
And, in fact, we have done studies--I have done studies
myself where we have compared the examiner's verdict to what
the actual physiological data says in the polygraph charts.
What we have done is had the charts blindly scored by people
who are unaware of the case facts and then make a determination
using the standard scoring procedures of whether the person
appeared truthful or deceptive and then compared that to the
actual examiner's verdict, and we found substantial variation
between the two. The examiners often play hunches and go
against what is in the charts.
We can tell from the government's own testing policy--
again, in this Annual Report to Congress, it is pointed out
that the government gave almost 8,000 counterintelligence scope
polygraph tests, and out of these 8,000, only 200 people,
approximately, yielded significant responses to relevant
questions. This is a minuscule number, and despite what Mr.
Keifer said, there is basically no evidence that polygraph
testing is anywhere close to 90 percent accurate. Ninety
percent would be the upper limit that even staunch scientific
proponents of polygraph would argue in terms of accuracy, and
many people would see the accuracy as substantially less than
that.
If the test was 90 percent accurate and you test 8,000
people, then you would have to have closer to 800 people
failing the test, but we only get a couple of hundred. So we
know that examiners, when they are giving these people these
tests, they are making adjustments to how they are interpreting
the data that they get from the polygraph tracings and
determining that a lot of people are, in fact, probably
truthful when the charts would actually indicate that they are
not.
Senator Durbin. Mr. Keifer, let me ask you as a follow-up,
if these tests are generally not admissible in court because of
the fact that courts have questioned whether or not they are
reliable, should we then subject a person's career or the
suggestion to the American people that we are establishing a
safeguard for their security to the, I guess, the reliability
of the test?
Mr. Keifer. If your question is, should we use a polygraph
to uncover a spy, my answer is yes.
Senator Durbin. Of course, we would like to uncover spies.
The question is, is this test a reliable way to uncover a spy
if, in fact, most courts have said you do not bring it in the
courtroom, we do not think that it is reliable enough to be
brought in the courtroom. And yet, we are really putting a lot
of faith in it, are we not, in terms of determining whether a
person can or should continue to be working for the government,
should be entrusted with the most important secrets----
Mr. Keifer. Polygraph is one of the tools that should be
used to make that determination. It should not be the only
tool.
Senator Durbin. But, let me ask you, if you are going to
use this tool, how much confidence can you have in a test that
has so much subjectivity involved in it? Do you concede the
point that the examiner has a great deal of subjectivity in
choosing the questions, measuring the responses?
Mr. Keifer. I would like to explain that or offer
explanations for that.
Senator Durbin. Certainly. Please.
Mr. Keifer. Tests are generally standardized and the
protocols of administering those tests are fairly uniform.
There will be some individual variability by any given examiner
during a test, and it is suggested that that is causing a lot
of errors and problems in the testing. I do not think so. There
are fairly uniform procedures used by examiners throughout the
field.
Senator Durbin. So you really discount the subjectivity of
this in terms of the intensity of the questions, the types of
questions, the repetition of questions? You say this is all
fairly standard?
Mr. Keifer. If you take the area of counterintelligence
screening, which is what I think we are talking about here
today, yes, it is a very standardized type of testing and the
questions are pretty uniform. If you go into another area of
criminal-specific testing, the examiners are given greater
leeway to formulate individual questions.
Senator Durbin. Let me ask Mr. Zaid, if I might, if he
could follow up on these questions in reference to what do you
think might be acceptable parameters of error in this testing
if we are going to rely on it.
Mr. Zaid. You have identified some of the key problems,
Senator. For applicants, a polygraph is the sole determinative
factor. You flunk your polygraph--these are people not just who
are applying to the agencies, all of the agencies, but have
been given conditional job offers. They have already gone
through a battery of tests, interviews. They are generally the
top of the crop. Many times, they are law enforcement from
State agencies or even other Federal agencies, highly
recommended, but they have to go through a drug test, the
psychological test or psychiatric test, running, et cetera, and
a polygraph, and then a background investigation. If you fail
the polygraph, you are out. That is the end of it.
Now, it is a little bit different for current employees
because there are regulations that forbid adverse personnel
actions directly on the basis of the polygraph. But as I
mentioned before, that does not necessarily mean that as a
legal matter, it is not an adverse personnel action. They stay
at the same pay grade. They can stay in their job. But the fact
is, their career is over, and many times they often resign. And
I have in my written testimony specific examples of polygraph
abuse, where people have been investigated for years at a time,
finally are exonerated, but quit in disgust because they are so
disenchanted with the government.
The one Supreme Court case that I think you are mentioning,
the Scheffer case, which was an Air Force case, Justice Thomas
actually, and I cannot remember the other justice who made the
comment, but were somewhat disenchanted by the government's
inconsistency, because the Justice Department came into that
case and advocated against use of the polygraph. The defendant
in a criminal case wanted to admit it because he passed. It was
good for him, obviously.
But the Justice Department came in and provided testimony,
sworn affidavits from the FBI, that polygraphs were unreliable,
they should not be used, and Justice Thomas was, like, well,
how do you reconcile that, then? You are using this to make
these security determinations on people's careers, yet when it
is against your interest, you argue against it. And that is
really the staunch problem here.
Obviously, everybody wants to root out spies. We all want
to protect our Nation's security. But we are doing so at the
cost of harming very loyal and truthful individuals who work
for our government at the same time.
Senator Durbin. Mr. Chairman, I thank you for this hearing.
I have not thought about this issue a lot since I practiced
law, but it has come up more and more and I think part of it
has to do with our concern over national security. I think part
of it has to do with the fact that we are looking for a quick
fix here. We are trying to find some machine that is going to
solve our problem. I do not think this is the machine. Thank
you.
Senator Specter. Thank you very much, Senator Durbin.
Do any of you gentlemen know if any courts have ever
admitted polygraph results? Mr. Keifer?
Mr. Keifer. Yes. The Federal courts in New Mexico.
Senator Specter. Anything else?
Mr. Keifer. The Galbraith decision.
Senator Specter. In New Mexico?
Mr. Keifer. Yes. I am not sure what Federal district it is
in New Mexico, but it is admitted in Federal court.
Senator Specter. The Federal court admitted a polygraph?
Mr. Keifer. Yes, sir.
Senator Specter. In how many cases, if you know?
Mr. Keifer. It is the Galbraith decision is the one that
admitted it. I do not know any subsequent where it was used. I
do not know one way or the other, if they did or----
Senator Specter. And the reasoning of the court was that
the polygraph was sufficiently reliable as an evidentiary
matter to come into evidence?
Mr. Keifer. Yes, Senator. That was the holdings.
Senator Specter. Mr. Smith, you have had a very long career
with the general counsel at the CIA, and served on national
security studies. Based on your experience with the so-called
Blue Ribbon Commission, what is your judgment as to the
accuracy of polygraphs in counterintelligence screening?
Mr. Smith. I do not have a number, Senator, as to what the
percentage of accuracy is. I defer to the others on this panel
that have studied it. I personally am skeptical about the
degree of accuracy. It is only a useful tool, and I do not
think--frankly, I am not sure that we will ever be able to come
up with a definitive number as to the actual accuracy.
Senator Specter. A useful tool? In what way?
Mr. Smith. It is a useful tool as an aid to interrogation,
and as I said in my opening statement and believe very
strongly, I do not believe that any adverse personnel action
should be taken solely on the basis of the results of a
polygraph exam.
Senator Specter. Is it a useful tool beyond the frequent
occurrences where someone is given a polygraph and the person
breaks down and confesses because of a view that the polygraph
is going to expose him or her?
Mr. Smith. In my experience, Senator, what typically
happens is if in a polygraph examination a person responds to a
question and the examiner says, ``I have noticed a reaction to
this question, is something bothering you?'', sometimes the
person will admit to something which is valuable from either a
criminal or counterintelligence point of view. Sometimes, they
will not. Sometimes that then leads to subsequent
investigation.
Senator Specter. Well, if the person makes an admission,
that is obviously beneficial, providing there is further
investigation to corroborate the admission. I have seen that
happen with some frequency as District Attorney of
Philadelphia, and there the polygraph was useful because it
scared people into telling the truth, in effect. But beyond
that, what is its utility in an interrogation, Mr. Smith?
Mr. Smith. I do not believe it has any utility beyond
precisely that, Senator.
Senator Specter. Mr. Keifer, how do you respond to what Mr.
Iacono, Professor Iacono, has said about the very substantial
differences between a real life situation and a test situation?
Mr. Keifer. I agree with him, that those differences could
be significant, but I disagree with the conclusions he is
drawing about what would occur in real life testing based on
the experiences I have had in that testing. I have found that
when you have implemented a screening type of polygraph
situation, people do not come into the room feeling like you
have challenged their loyalty. They come in more with an
attitude of, ``I am willing to do what it takes to help uncover
a spy.'' And so you do not have this body of fearful, innocent
people who are going to be reacting in great numbers and thus
becoming false positives.
Senator Specter. On the testing, where you set up what is,
in effect, a contrivance, or did I misunderstand the kind of
tests you have?
Mr. Keifer. I am sorry, I did not understand.
Senator Specter. When you say you have controlled
circumstances where people are instructed to do something and
then they are questioned about it, that is not a real life
situation where the person has done something and is tested on
it. He----
Mr. Keifer. That is absolutely correct. There are different
psychological dynamics.
Senator Specter. So that is sort of a game. Here, you are
going to do X, Y, and Z, and then you are going to be tested on
it. It does not really matter what comes out of it.
Mr. Keifer. I think it may be predictive of what you can
occur or find in actual testing. I think it is a predictor. I
mean, I do not think real life testing will be less accurate
than a study.
Senator Specter. I am skeptical of that, and, of course,
the purpose of the hearing is to try to get you experts to tell
us what your experiences have been. But I am skeptical of it
because if you say to a person, you are going to go through
these activities, then we are going to bring you back in and
find out if you tell the truth on what happened on these
activities, it does not matter much to them. They are really
playing a game. They are guinea pigs, in effect.
Mr. Keifer. It depends----
Senator Specter. There are no serious personal consequences
as to what their answers are.
Mr. Keifer. That is correct. There is no personal
consequences, but the effort in those studies is to make it
appear as realistic as possible. That is why it is dangerous to
sometimes project that the validity of polygraph should be
based on those kinds of studies and not take into account
actual testing experience.
Senator Specter. Well, if you give a polygraph to a person
and they pass it, and you later find out that what they told
you was a lie, then you have a statistic where the polygraph
did not work. If they pass it and you have no more feedback,
they could have been telling the truth or they could have been
lying. It is just not possible to know everything in that
person's background as to whether they told you the truth. If
they fail a polygraph and you later investigate and find out
that they did not commit an offense, then you know that it is
inaccurate.
Mr. Keifer. There may be other ways of verifying that.
There may be other people tested in the same case, one of which
may be deceptive and you may uncover the truth there that would
validate those people who you claim do not react.
Senator Specter. You may or may not be able to find out the
facts to show that it is accurate. When you emphasize the
quality of the polygraph examiner, that is a very important
point. You are the President of the Association.
Mr. Keifer. Former.
Senator Specter. Former, Past President of the American
Polygraph Association. There are doubtless all levels of
competency as you go to move away from, say, the chief
polygraph examiner for the FBI, who presumptively is very well
qualified, to some assistant polygraph examiner in Wichita,
Kansas. I do not mean to disparage Wichita. I just pick out my
hometown, place of birth.
Mr. Capps, you are with the Department of Defense and you
are an expert here. How do you evaluate the studies which have
established reliability at 90 percent?
Mr. Capps. Sir, we will never know the validity of
polygraph because, as Dr. Iacono said, the level of
emotionality, if I am quoting you right, the level of
emotionality in laboratory studies is not what we would
experience in a real field setting and we could never----
Senator Specter. You tend to downplay the validity of
laboratory studies?
Mr. Capps. Yes, sir. Yes, sir, I do.
Senator Specter. Well, what is your professional judgment
as to how accurate polygraphs are?
Mr. Capps. There is really no way to make that
determination because the level of emotionality is less in a
laboratory and we can never really know true ground truth in a
field setting. We can only approximate that.
Senator Specter. So you do not think there is a level of
reliability that you can depend on?
Mr. Capps. I think that polygraph, based on the multitude
of studies that have been published in scientific and trade
journals, has a very high degree of validity, but as to
determine what that number is, I have no idea.
Senator Specter. Why do you think there is a high degree of
reliability?
Mr. Capps. Because it has been replicated so many times
with consistent results. Those studies have been replicated
many times.
Senator Specter. The studies have been replicated?
Mr. Capps. Yes, sir.
Senator Specter. But how about the emotionality factor, the
word you use? It is present in all those studies.
Mr. Capps. Yes, sir. What that means, simply, is that we
should not get high levels of correct decisions on deceptive
people because they should not be responding at high levels. We
do, in fact, in many cases get high levels in deceptive people
and even higher levels on truthful people.
Senator Specter. Well, if you get higher levels of
emotionality on truthful people, then they do not pass the
test.
Mr. Capps. As a matter of fact, sir, when people on this
panel have been talking to you about false positives, the DoD
report to Congress simply does not show that to be true. When
we test 8,000 people a year and we only have five or six at the
end of that 8,000 testing that have been determined to be
deceptive with no reportable information----
Senator Specter. Well, how do you know the others are not
deceptive? You have a few shown to be deceptive, but that does
not answer the question as to whether those not shown to be
deceptive are, in fact, not deceptive.
Mr. Capps. You are right, sir. What I am saying is we are
not calling people deceptive in large numbers like has been
inferred here today.
Senator Specter. Would you amplify that last statement? I
did not understand it.
Mr. Capps. Yes, sir. The DoD report to Congress
demonstrates that we are not calling people deceptive in large
numbers, like some members of the panel have inferred is
happening.
Senator Specter. OK. We are not calling them deceptive, but
we do not know whether they are deceptive or not. You are not
calling them deceptive unless you are sure, which is fine. That
is the presumption of innocence and that is the American way.
But that does not deal with the reliability of the polygraph
because there may be a lot more deceptive people out there that
you are not catching.
Mr. Capps. That is true, sir.
Senator Specter. Mr. Keifer, what is the name of that case
again in New Mexico in the Federal court?
Mr. Keifer. Galbraith.
Senator Specter. Galbraith. Do you have a citation on it?
Mr. Keifer. I can give it to you.
Senator Specter. Can you? Do you know of any other court
which has admitted polygraph, Mr. Zaid?
Mr. Zaid. It has varied, Senator, and I am trying to
remember the facts in that specific case. Some States have per
se bans on admissibility. The military has a per se ban. The
Scheffer case I mentioned in 1998 from the Supreme Court----
Senator Specter. My question was, do you know of any cases
where they have admitted the polygraph?
Mr. Zaid. It has, and I will give you--off the top of my
head, case names, I do not have. I have it at the office. I
will be glad to send it to your staff.
Senator Specter. I would like to see them. I would like to
do a review of those cases to see what the rationale of the
court was.
Mr. Zaid. Well, many of the cases are when both parties
agree, the prosecution and the defense, when both parties
stipulate. Then courts have said, well, I am not going to stand
in the way and we will allow it in.
Senator Specter. That is not very persuasive. The issue is,
to what extent have courts admitted polygraphs on the
determination of sufficient reliability to be evidentiary.
Mr. Zaid. Not nearly--I want to say very rarely, but I will
say that most courts typically do not allow the admissibility.
Senator Specter. I would like to know if you have specific
cases.
Mr. Zaid. I will be happy to send that to your staff later
today.
Senator Specter. I have seen a fair number of polygraphs.
Two stand out in my mind. We had a very celebrated citizen of
Philadelphia named Frank Rizzo, who was the police
commissioner, and he got into an argument, which I will not go
into the details of, and there was a lie detector test
administered by the Philadelphia Daily News, and the
commissioner and later--I guess he was mayor at the time--was a
very assertive, very confident fellow, and he said, ``If the
machine says you lied, you lied.'' And he took a polygraph and
it said he lied. It was a gigantic, front-page story.
And he brought along his chief assistant, who also failed a
polygraph. It is the only case I know of where a witness
brought along a corroborating liar, although I am not sure he
was a liar. I just know the polygraph said he was a liar. I
knew Frank Rizzo and I would say he was telling the truth.
The other polygraph experience I had was Jack Ruby's
polygraph. Have any of you gentlemen looked at Jack Ruby's
polygraph tapes? You have, Mr. Keifer? What do you think?
Mr. Keifer. There was almost no reaction throughout those
charts. In the format used at the time, they would have
concluded that he was being truthful.
Senator Specter. Do you think he was being truthful?
Mr. Keifer. That was an early stage polygraph. I could not
make a determination from those charts, but I respected that
examiner's opinion.
Senator Specter. You respected the examiner?
Mr. Keifer. Yes.
Senator Specter. You knew Bel Herndon?
Mr. Keifer. Yes, I did.
Mr. Zaid. That is part of the problem, Senator, respecting
the opinions of the examiner. You heard one statement earlier
that--in fact, it is true, the polygraph examiners are not the
ones who make the decisions. They just provide what their
evaluation is and then someone up in management makes the
decision based on that evaluation. But everyone defers to the
examiner. So if there is a subjective problem with the
examiner, which everyone seems to admit that there can be, it
does not make a difference because the opinion is accepted
nonetheless.
Senator Specter. The management at the FBI did not agree
with the examiner. The management at the FBI disagreed with the
examiner. Bel Herndon was the chief polygraph examiner, was he
not, Mr. Keifer?
Mr. Keifer. Yes, he was.
Senator Specter. Is he still alive today, do you know?
Mr. Keifer. I lost touch with Bel several years ago. I
think he is still in the area. I hope so.
Senator Specter. Well, it was quite a polygraph examination
when Jack Ruby's testimony was taken. He did not give the Chief
Justice a chance to preside. He just started right off, saying,
``How do you know I am telling the truth? I want a lie detector
test.'' The Chief Justice, whose composure was not always
perfect, said, ``Well, of course, Mr. Ruby. If you want a lie
detector test, we will give you a lie detector test.''
And the Chief Justice regretted that commitment, and it was
decided that the only way the commitment would not be honored
would be if Mr. Ruby withdrew his request for a lie detector
test. And I had been present at most of the deposition, so I
was sent down to be with Mr. Bel Herndon when the polygraph was
administered. I was instructed to give Mr. Ruby a chance to
withdraw his request if he wanted to, but not to put any words
in his mouth, because even at that point, we knew people would
be looking at what we were doing.
And Mr. Ruby had his own list of questions that he wanted
asked. It was not a very good format, because it lasted for 12
hours. You do not recommend that generally, do you, Mr. Keifer?
Mr. Keifer. Not generally.
Senator Specter. To have a 12-hour polygraph. But Bel
Herndon, who was the top of his profession, said he was telling
the truth, not involved with Oswald and not involved in the
assassination. The matter then went to the Federal Bureau of
Investigation and the word the Warren Commission came out with
was that the polygraph was not reliable, not to be considered,
and it was generally thought that that word came from
management, and the management was Director J. Edgar Hoover.
But we decided to publish the polygraph and all the tapes and
all the charts and let history decide what the facts were.
Gentlemen, thank you very much for coming in. We are trying
to get a handle on this issue. The Hanssen case is a very
important one and what the FBI is going to be doing in the
future and the other Federal agencies and the intrusiveness and
the impacts on reputations, the impacts on career are very,
very substantial.
We are going to seek some way--last year, one of the
appropriations bills had a direction to have a study of the
polygraph, to see if we cannot come to grips with its
reliability with a little more certainty so we can know how
effective it is and how intrusive it is and make a public
policy determination.
Mr. Smith?
Mr. Smith. Senator, I value what the Committee is doing
here. Mr. Zaid made a couple of comments, if I could have 30
seconds to respond.
Senator Specter. Sure. Take your time. I will be glad to
listen to you longer. This is one hearing where the Committee
is prepared to stay.
Mr. Smith. I appreciate that.
Senator Specter. That does not happen very often, either.
Mr. Smith. This is a very difficult issue, and I do not
know that I have the right answer. Mr. Zaid did say that there
were some 300 CIA employees whose careers are still in limbo
and they are not being promoted. That is not correct. Those
individuals were identified after the Ames case. Many of them
were referred to the Bureau. They stayed there much too long,
but that situation has now been resolved, and George Tenet,
they have all been cleared out.
George Tenet has adopted recently a number of procedures to
try to reduce the risk of that sort of thing happening in the
future to zero so that people, when they do stumble on a
polygraph, if that is the only thing that happens, their
careers are not put on hold. They can be promoted. They can
take overseas assignments and so on. But it took, in my
judgment, much too long for those procedures to be put in
place, but George Tenet----
Senator Specter. Mr. Smith, when you were at the CIA, did
you take a polygraph?
Mr. Smith. I did.
Senator Specter. Did you have any hesitancy about it?
Mr. Smith. Yes.
Senator Specter. Do you think it was an infringement on
your civil liberties?
Mr. Smith. No, I did not think that. I was nervous about it
because I had had access to top secret codeword information for
many years in other jobs and----
Senator Specter. You were nervous about it?
Mr. Smith. Of course.
Senator Specter. Sufficiently nervous to have all this
emotionality?
Mr. Smith. No.
Senator Specter. By the way, is that a word, Mr. Capps?
Mr. Capps. Yes, sir, it is.
Senator Specter. Is it? OK.
Mr. Smith. I was concerned about it. I passed, but was
clearly concerned about it. It does have a deterrent effect. I
am convinced of that.
Senator Specter. A deterrent effect?
Mr. Smith. It does have a deterrent effect.
Senator Specter. In what way?
Mr. Smith. It has a deterrent effect for current employees.
Ames, I think even in your interview with him, may have
admitted that he was very concerned about the polygraph, even
though he got through it.
Senator Specter. I never had an interview with Ames.
Mr. Smith. I misunderstood that, Senator. I thought you did
meet with him after he was convicted.
Senator Specter. No. I never did.
Mr. Smith. I apologize. He did, and others who have been
convicted of espionage have expressed concern about it. It is
not a perfect deterrent, but it does operate to some extent as
a----
Senator Specter. As a deterrent, meaning that if you know
you are going to have a polygraph in the future, you are not
going to do something bad?
Mr. Smith. That, I believe, yes.
Senator Specter. Well, that is a point. Have you had a
polygraph, Dr. Iacono?
Mr. Iacono. No, I have not.
Senator Specter. Are you prepared to take one?
Mr. Iacono. I would--I am not prepared to take one, no,
because I do not feel that they are useful. In fact, I would be
interested in knowing how people who administer polygraph tests
feel about testing people who are thoroughly familiar with the
procedure, including understanding countermeasures and what the
point of the questions is and how it is used as a prop to
attempt to get admissions and these sorts of things.
Senator Specter. Mr. Keifer, you have taken polygraphs?
Mr. Keifer. I took one, yes, sir.
Senator Specter. Just one? Were you nervous?
Mr. Keifer. As nervous as I would be before any type of
test, yes.
Senator Specter. Before any type of what?
Mr. Keifer. Any type of testing.
Senator Specter. Any type, like coming before the Judiciary
Committee?
Mr. Keifer. That would be an excellent example.
[Laughter.]
Senator Specter. Mr. Zaid, you have never taken a
polygraph, have you?
Mr. Zaid. I have not. I have observed my clients taking
polygraph tests.
Senator Specter. But you are prepared to take one?
Mr. Zaid. So long as nothing was riding on the results of
it, I have no problems with it.
[Laughter.]
Senator Specter. You are prepared to be part of a
contrivance, prepared to be part of a test if you are
adequately paid?
Mr. Zaid. I would even probably do it for free, which is
strange for a lawyer to say.
Senator Specter. At your hourly rate?
Mr. Zaid. I am sorry?
Senator Specter. At your hourly rate?
Mr. Zaid. It is less than Mr. Smith's, at least, at this
point, but I am a little younger.
[Laughter.]
Mr. Zaid. But I would love to see----
Senator Specter. And more than mine.
Mr. Zaid. I would love to see what happens, if I could pass
or fail a polygraph.
Senator Specter. Mr. Capps, have you taken a polygraph?
Mr. Capps. Yes, sir. I have taken four and I am due for one
now.
Senator Specter. Are you?
Mr. Capps. Yes, sir.
Senator Specter. Will this hearing substitute for it?
Mr. Capps. I certainly hope so.
Senator Specter. Do you get nervous when you take a
polygraph?
Mr. Capps. Absolutely.
Senator Specter. Well, gentlemen, thank you very much for
coming in, for submitting your statements.
We are going to put into the record a statement from
Senator Grassley, and he has some questions which we will be
submitting to you for the record.
[The prepared statement of Senator Grassley follows:]
Statement of Hon. Charles E. Grassley, a U.S. Senator from the State of
Iowa
Today we highlight an extremely complex and delicate subject--the
use of polygraph examinations on our federal employees as a means to
ensure the integrity of our nation's classified materials.
We sit here today in the wake of one of the most serious breaches
of security in the history of our nation--that involving the espionage
allegations surrounding FBI Supervisory Special Agent Robert Hanssen.
As unconscionable as it is to contemplate such a traitorous act, it is
equally unconscionable for most Americans to contemplate how this could
have happened in the first place.
All Americans suffer when our nation loses sensitive or classified
information through the efforts of foreign espionage. But it is
particularly deplorable when these efforts are found to be facilitated
by our own personnel. How can we expect the American people to place
their trust in our federal agencies when their trust is betrayed by the
very people charged with their protection?
So today, as a consequence of these despicable acts, we once again
find ourselves in the midst of a problem in search of a solution: how
can we obtain the greatest degree of assurance in the integrity of our
personnel with classified access? At issue is the question of whether
the polygraph examination should be made part of the security program.
I think that all will agree, if this is the solution, then we have
opened up a whole pandora's box of problems that must be properly
addressed for it to be considered fair and effective.
We have heard much about the need to review the security procedures
at those agencies charged with safeguarding our nations secrets--and I
know that the Webster Report will have much to say about this issue at
the FBI. Many have argued for the need to remove the human element from
these procedures. This argument flows from the idea that our senior-
most personnel, and consequently, those with the most classified
access, are routinely considered to be above suspicion. Much to our
detriment, we have learned the fallacy of this notion. In response, we
have recently seen Director Freeh react with an interim policy change
that will subject in-service FBI personnel to periodic polygraph
examinations. I anticipate that we will find similar recommendations
from the Webster Report when it is completed.
In the past, I have expressed reservations regarding the use of the
polygraph, particularly in the context of its use during pre-employment
screening, and I have cautioned against its use as a sole determinant
of a persons guilt or innocence.
I have also been critical of the duplicitous positions that the FBI
has taken in regard to their application of the polygraph exam in the
context of its administration in both pre-employment screening and
criminal investigations. The FBI will tell you that the polygraph
examination is only one of many components to their pre-employment
screening process. This would lead one to the false conclusion that one
could fail a pre-employment polygraph examination with the FBI and
still be hired, if all other factors are in order. Make no mistake
about it, the failure of a polygraph examination during a pre-
employment screening is an automatic disqualifier, notwithstanding any
other factor.
The dirty little secret that the FBI will never tell you is: behind
their policy governing the application of the polygraph during pre-
employment screening is the concept of ``acceptable loss.'' Any
polygraph examiner, or for that matter, anyone who has done any
research on the subject, knows that there is an error rate to the
examination; yet, the pervading sense at the FBI is, with a never-
ending stream of applicants for job openings, losing a few due to
examination error is simply the cost of doing business.
Further, and by their own admission, the FBI has repeatedly gone on
record to mitigate their reliance of the polygraph examination as a
tool in the course of their criminal investigations. My reaction to
this is, if this is the way that the FBI feels about the use of the
polygraph in their criminal investigations, how can we then have
confidence in their application of the polygraph for the national
security screening of their own employees? Should we also infer that
the concept of ``acceptable loss'' applies in this instance as well?
It is my understanding that the FBI's interim policy in this matter
is to use the polygraph examination in conjunction with, and as a
complement to, their comprehensive employee security updates. Are we
being asked to once again take a leap of faith that the polygraph will
not be the sole determinant of an employee's guilt or innocence? How
can we be sure that the real agenda will not be the same as it is with
pre-employment screening?
And, I also wont' that by instituting the routine use of polygraph
examinations for the national security screening of employees, this
will be at the expense of the other investigative tools involved in a
security review. And that an over-reliance of the polygraph may lull
the agency into a false sense of security.
As post-incident investigations have proven in the alleged
activities of Agent Hanssen and many other espionage losses involving
our own personnel, clues of suspicious behavior were there to be found;
yet, their activities continued unabated, in some cases for several
years. Some may accuse me of having the benefit of 20/20 hindsight, but
it is clear that if the FBI had followed up on information available to
them in their routine security updates, they could have put an end to
this breach years sooner, and without the need for a polygraph
examination.
To simply say that this is the right thing to do; that this policy
is unfortunate but necessary, plays into the notion that the FBI knows
their business better than we do. I know too well the history of an
agency who's private and public faces are all too often at odds with
each other.
To be sure, with our national security interests at stake, it is
critical that we find the best way to identify illegal behavior within
the ranks of the FBI. But I disagree that the polygraph is the panacea
for this problem, and I look forward to reviewing the FBI's
comprehensive policy in this matter at the earliest opportunity.
Senator Specter. We have a number of statements from
individuals who were not called as witnesses and wanted to have
their statements submitted for the record, so they will be
submitted en bloc.
[The statements follow:]
Statement of former Federal Bureau of Investigation Special Agent Mark
E. Mallah
the investigation
In January 1995, the FBI asked me and the other agents in the
Foreign Counterintelligence division to take a polygraph test. It was
to be a routine national security screening to ensure that no one was
supplying information to foreign intelligence services. When the test
ended and the examiner surveyed my charts, he thought they indicated
``deception'' on unauthorized contact with foreign officials. He
questioned me about it, and I told him that I had never had any
unauthorized contacts, not even close. The charts would be reviewed by
headquarters, he advised, but he believed they would judge them
``deceptive.''
About two weeks later, the FBI instructed me to report to
Washington, DC for additional polygraph testing. At this point, I had
no idea of the scale of the investigation unfolding. Two consecutive
days of polygraph examinations and lengthy interrogations ensued. The
examiner erroneously insisted that I was deceptive on unauthorized
foreign contacts and even on other unrelated matters. The FBI placed me
on administrative leave with pay, pending further investigation.
A major investigation followed-"major'' in the sense that it was a
top priority case commanding extensive resources. Believing the FBI
would objectively review the facts and have no choice but to exonerate
me, I cooperated eagerly. After a full day of polygraphs,
interrogations, and a three hour train ride home, FBI Agents appeared
at our home that same night and asked for our consent to search it,
which my wife and I provided. This unleashed a search team of about
seven agents, many in raid jackets. The search lasted about three hours
and ended well after midnight. I allowed the FBI to take detailed
financial records, appointment books, personal calendars, daily ``to-
do'' lists, my innermost thoughts expressed in personal diaries,
personal correspondences, and numerous other items. Following the
search and for about two months afterward, I was under surveillance
twenty four hours a day, seven days a week. For at least a week during
that time, a small airplane circled above our home every morning, then
buzzed above me wherever I went.
The FBI interviewed numerous friends, acquaintances, former
roommates, colleagues, and my family. The Bureau accused one friend of
being an accomplice and gave him a polygraph test, which he ``passed''.
They showed up unannounced and surprised my wife at her place of work,
asking to interview her right then and there. She agreed to be
interviewed later. During her interview, the FBI asked her to take a
polygraph, which she declined, since she did not trust the device. The
FBI asked both of my brothers to take a polygraph test. one agreed, and
he ``passed.'' An Agent told one of my friends that there was
``significant evidence'' against me. This same agent told my brother he
was certain that I was guilty.
Five months into the investigation, I returned to work as a Special
Agent, again entrusted with a ``top secret'' clearance, a gun, and a
badge. The reinstatement seemed to mark the end of the investigation,
and my vindication, but it did not. As soon as I returned, the Special
Agent in Charge (SAC) for Counterintelligence told me that the foreign
contacts issue was still ``unresolved.'' Unresolved'' despite the FBI
having had unlimited access to every aspect of my personal and
professional life for the prior five months.
After my reinstatement, I inquired regularly into the status of the
investigation, i.e. when it would finally end. In response, FBI
Headquarters wrote to me in October 1995, the investigation now eight
months old. They stated that I was ``the subject of a security
reinvestigation involving [my] inability to resolve issues relating to
[my] associations with foreign nationals.as well as [my] susceptibility
to coercion as a result of [my] concealment of these matters.'' I
answered that my being entrusted with a ``top secret'' clearance belied
their conclusions. How could I hold a ``top secret'' clearance and at
the same time be ``susceptible to coercion'' as a result of concealing
such serious matters? I also noted that after eight months of
investigation, the FBI had yet to produce one speck of information as
to just exactly who these foreign nationals were that they kept citing,
what information I had supposedly compromised, when I had supposedly
compromised it, and in what manner I had supposedly done so. Judging
from their letter, the FBI sought to impose on me the burden of
disproving their accusations, details about which they never provided.
No specifics were ever provided, as they were non-existent in the
first place. The investigation continued, and I resumed my inquiries.
After inching through various stages of the bureaucracy, it concluded
in September 1996, 20 to 21 months after it began. The final outcome
was a letter of censure and a two week suspension for a trivial
administrative issue and a minor detail from my FBI employment
application. Most significantly, the letter of censure was silent about
unauthorized contacts with foreign officials, the national security
issue which launched the investigation and was its raison d'etra.
Investigators produced of course zero corroboration for any issue which
the polygraph deemed me ``deceptive.''
Shortly after the investigation, I voluntarily resigned from the
FBI with a clean record. If I were to re-apply for a position with the
FBI in the future, I would receive a positive recommendation for
reinstatement, the most favorable status possible.
a disturbing experience
The experience was highly disturbing on a personal level for all
the obvious reasons- it was invasive, my reputation was under constant
assault, my career completely undermined, my integrity placed under
suspicion, and I was definitively accused of sins which run completely
against my values. This was, to say the least, a stressful and
challenging odyssey.
Perhaps even more disturbing are the larger implications. Nothing
more than unsubstantiated polygraph charts launched a major
investigation which squandered a vast amount of resources. I estimate
that the FBI spent far in excess of $1 million dollars on the case.
This would be an acceptable price of protecting national security if
the polygraph had a history of accuracy and success, and my case was
just an unfortunate exception. But in all its history, the polygraph
has not detected one single spy. Ever. It is batting .000. Worse than
that, it lulled the intelligence community into a false sense of
security in the Aldrich Ames case, a CIA employee ultimately convicted
of espionage. He ``passed'' the polygraph, and continued spying
thereafter.
With the polygraph's dismal record, with the entire weight of
outside scientific expertise convinced that polygraph screening does
not work and is prone to accusing innocent people, with nothing more
than self-serving theory behind it, the FBI, its Polygraph Unit, and
other government practitioners should be held accountable to Congress
for ``uses and abuses of the lie detector,'' to quote the subtitle of
Dr. David Lykken's book, A Tremor in the Blood. I found this lack of
accountability, this freedom to level unsubstantiated charges and
instigate a furious accusatory process without having to answer for the
results, both irresponsible and chilling. My experience is not unique.
Other individuals within the FBI and in the intelligence community have
had their lives needlessly rocked by the whimsical dance of the
polygraph's pens, not to mention the dozens of unsuspecting applicants
whose aspirations are ambushed by the machine. More are certain to
come.
the polygraph and the alternatives
The polygraph's susceptibility to error is well established by
scientific research. Its recordings do not measure truth or deception.
They measure fluctuations in blood pressure, respiration, and sweat
response. Period. The examiner then interprets those fluctuations in an
attempt to infer truth or deception. Since no physiological pattern is
known to be unique to deception, but could also represent anger, fear,
anxiety, embarrassment, and other emotional states, the interpretations
and inferences of the examiner are notoriously prone to error.
Entrusting it with the protection of our national security is
delusional.
Sound and objective investigation is the best way to safeguard
against the risk of espionage. Spies and others who pose security risks
are generally not stable, well-adjusted people. They are troubled and
leave tracks.
Many desire more money and a grander lifestyle than their salary
allows, such as Aldrich Ames, owner of a $540,000 home purchased with
cash, and a large drinking problem. They might have a need not only for
money but to feed their ego, such as John Walker. Even those supposedly
in it for ideology get paid. Asset checks, credit checks, reference
checks, periodic interviews of associates and friends, good source
development, and other investigative techniques are far more
trustworthy indicators of a security risk than a polygraph machine.
conclusion
Whether it is screening applicants or screening employees, the
polygraph is a failure. I suspect that its days as a screening tool are
deservedly near an end. If the experience I endured leads to its
elimination as a screening device, then I will have considered it all
worthwhile.
Statement of George W. Maschke, Co-founder of AntiPolygraph.org
My name is George W. Maschke, and I am a co-founder of
AntiPolygraph.org, a nonprofit website and grassroots network of
individuals committed to polygraph reform. Specifically, we seek the
amendment of the 1988 Employee Polygraph Protection Act to provide
protection for all Americans by removing the governmental and other
exemptions. I am also a captain in the United States Army Reserve, but
it is strictly in my capacity as a private citizen that I address the
Committee.
Each new spy scandal brings in its wake calls for improved security
and, invariably, more lie detector, or polygraph testing. Indeed, the
polygraph has become the very centerpiece of America's
counterintelligence policy. The wisdom of our reliance on this
purported technology is seldom questioned. Indeed, anyone who might
raise a cautionary finger runs the risk of being seen as ``soft on
security.'' But with ``more polygraphs'' being confused for ``more
security'' yet again as the FBI moves to expand its polygraph program
in the wake of the Hanssen espionage case, it is necessary that such a
cautionary finger be raised.
My interest in polygraphy was kindled when I applied to become a
special agent with the Federal Bureau of Investigation in 1995, not
long after Director Louis J. Freeh, in reaction to the Aldrich H. Ames
espionage case, instituted the Bureau's preemployment polygraph
screening program. After I had passed all written tests, a supervisory
special agent at the FBI field office where I applied was keen to have
me start working with the Bureau in a support position pending agent
hire. I agreed, and was hastily scheduled for a pre-employment
polygraph exam. When my polygraph test was done, my polygrapher accused
me of deception when I (truthfully) denied having disclosed classified
information to unauthorized persons and having had unauthorized contact
with representatives of a foreign intelligence service. I was
absolutely dumbstruck. He was in essence accusing me of being a spy. We
reviewed the questions again and my polygrapher ran yet another chart.
This time, he told me he was certain I was lying.
The FBI dropped me like a hot potato and recorded my polygrapher's
slander of me in an interagency database, essentially blackballing me
with other agencies, too. There is no appeal process.
I was baffled at how the polygraph test, which I had always
imagined to be an admittedly imperfect yet nonetheless science-based
technology, had falsely branded me as some kind of subversive or spy.
Upon researching the matter at my local university library, I was
shocked and angered to discover that polygraph testing, on which we as
a nation place such great reliance, is not a science-based test at all,
but is instead fundamentally dependent on trickery and has never been
shown by peer-reviewed scientific research to be capable of
distinguishing truth from deception at better than chance levels of
accuracy under field conditions.
The trickery on which polygraph testing depends, while well-known
to foreign intelligence services, is little understood by the American
people and, I respectfully submit, their elected representatives. Let
me explain. While numerous deceptions are employed in the polygraph
process, the key element of trickery is this: the polygrapher must
mislead the examinee into believing that all questions are to be
answered truthfully, when in reality, the polygrapher is counting on
the examinee's answers to certain of the questions (dubbed ``probable-
lie control questions'') being untrue.
One commonly-used probable-lie control question is, ``Did you ever
lie to a supervisor?'' While the examinee may make minor admissions,
the polygrapher will strongly discourage any further admissions,
warning the examinee, for example, that experience has shown that
people who would lie to a supervisor turn out to be the same kind of
people who would go on to commit espionage. But in reality, the
polygrapher assumes that the examinee's denial will be a lie, or that
the examinee will at least experience considerable doubt about the
truthfulness of his or her denial.
The second category of questions are termed ``relevant'' questions.
In counterintelligence screening, they will be about unauthorized
disclosure of classified information, contact with foreign intelligence
services, etc.
A third category of questions are termed ``irrelevant'' questions,
the true answers to which are obvious, such as, ``Is today Wednesday?''
or, ``Are we in Washington, D.C.?'' The polygrapher falsely explains to
the examinee that these questions provide a baseline that shows what it
looks like when the examinee is telling the truth. But in reality, the
irrelevant questions are not scored at all. They merely serve as a
buffer between sets of relevant and ``control'' questions.
The polygrapher connects the examinee to the polygraph instrument,
which records breathing, heart rate, blood volume, and perspiration
rate (as a function of skin conductance or resistance), and asks a
series of relevant, irrelevant, and ``control'' questions (all of which
are reviewed with the examinee beforehand).
The polygrapher then compares the examinee's physiological
responses while answering the ``control'' questions to those while
answering the relevant questions. If the former are greater, the
examinee is deemed truthful. If the latter are greater, the examinee is
deemed deceptive, and a post-test interrogation will follow. If
responses to both the ``control'' and the relevant questions are about
the same, the test will be deemed inconclusive.
The well-socialized truthful examinee who reacts more strongly when
truthfully denying a capital offense like espionage than when denying
some common human failing is likely to be wrongly categorized as
deceptive: a false positive.
Conversely, deceptive persons who understand the theoretical
assumptions of the procedure may covertly augment their physiological
responses to the ``control'' questions, producing a ``truthful'' chart
and beating the test. It is a common misperception that one must
believe one's own lies or be a sociopath to beat a polygraph test. As
the FBI's top expert in polygraphy, Dr. Drew C. Richardson of the
Laboratory Division, testified at Senate Hearing 105-431 in 1997, ``If
this test had any validity (which it does not), both my own experience,
and published scientific research has proven, that anyone can be taught
to beat this type of polygraph exam in a few minutes.''
There are numerous variations of polygraph screening tests, but all
depend on trickery and all can be defeated by augmenting one's
physiological responses to the ``control'' questions. For more on
polygraph testing, and to learn precisely how anyone-truthful or not-
can pass a polygraph test, see The Lie Behind the Lie Detector, which I
coauthored with Gino J. Scalabrini. It may be downloaded free from the
AntiPolygraph.org website.
Polygraph screening, the key element of our national
counterintelligence policy, is junk science. The polygraph screening
process depends on those being ``tested'' being ignorant of the true
nature of the procedure, which is clearly an unsafe assumption. Through
the polygraph process, many many truthful persons have been and will
continue to be wrongly branded as liars, while double agents (of whom
Aldrich Ames is but the most prominent of many who have beaten the
polygraph) escape detection. To strengthen our national security, we
should not increase our reliance on pseudoscientific polygraph tests:
we should abolish them.
Statement of Pascal Renucci, former government defense contractor
employee, San Francisco Bay, CA
I was formerly employed with a government Defense contractor in the
San Francisco Bay Area. Due to the nature of the work, one of my
supervisors initiated a security clearance application on my behalf in
mid-1999.
The clearance process began by my completing a security form. One
of the questions on this form is past drug history. I answered
truthfully by indicating a one-time experience smoking marijuana after
my father died of pancreatic cancer. I explained on the form that I
thought the marijuana might help with the extreme grief I was feeling
that night. A few months after submitting the form, I was told that the
investigating agency, the CIA as it turns out, wanted me to submit to a
polygraph to verify the veracity of my stated drug history. As I was
truthful on the form, I voluntarily consented to the polygraph. I
reasoned that since I am hiding nothing, one would hope the polygraph
should be uneventful and pass without incident. The day the polygraph
was administered, one of the most traumatic days of my life, I
discovered very painfully how erroneous my reasoning was.
My visit to the polygraph office began with the examiner explaining
security clearances and the background investigation process, while
establishing a tone of dominance in the conversation. Gradually, he
steered the topic towards illicit drug use and asked that I recount the
events leading to my use of marijuana a few days following my father's
death. After doing so, he and I agreed on a set of polygraph
examination questions. The most salient question being whether I had
ever used marijuana more than five times, the truthful answer being
negative since I had only used marijuana once. So far, nothing
objectionable had transpired.
He proceeded by fastening the various polygraph appendages to my
body. All of these were benign with the notable exception of the blood
pressure cuff strapped around my arm with excessive tightness. I felt
extreme discomfort immediately as the artery feeding blood to my arm
was being choked. No medical practitioner has ever fastened a blood
pressure cuff on my arm so tightly. I informed the examiner that the
strap was much too tight and requested that it be loosened. He sternly
replied that a very accurate measurement of blood pressure was
necessary. Therefore, loosening the cuff was unacceptable. I retorted
with my mounting feeling of pain, to which he most assertively repeated
his earlier denial. Feeling intimidated, I became quiet. As the pain in
my arm grew even worse, I noticed that the color of my hand was
becoming indistinguishable from the purple stone on my college ring. I
brought up the issue once more, and the examiner, apparently annoyed,
moved the strap from my arm to my lower leg. Though it was a great
relief physically, I was becoming more unsettled by his demeanor.
Before beginning the testing procedure, he instructed me not to
take any deep breaths. I immediately had difficulty complying since I
was already tense from the previous exchange about the blood pressure
cuff, and actually very much so needed to take a deep breath-
Nonetheless, I forced myself not to breathe-in deeply. He posed a few
preliminary questions including where I lived and the day of the week
it was. Soon after the beginning of questioning, he criticized the
shallowness of my breathing. With an annoyed tone, he then told me to
breathe normally, which confused me given his initial breathing
instructions. This episode, combined with the earlier one about the
cuff, left me so nervous that I even incorrectly stated the day of the
week it was during questioning. He was upset by this mistake, and
though I apologized profusely to assuage the tension, I felt no better
or calmer. When the preliminaries were completed, he cycled tbrough the
actual test questions several times. As stated before, the key issue
was whether or not I had used marijuana more than five times. The
events following this questioning form the basis for the bulk of my
complaint.
After the polygraph ended, the examiner rose from his chair and
angrily shouted that the test results could not have looked any worse
than they were. I was indescribably shocked upon hearing this, As I was
sitting in the polygraph chair in utter disbelief, the examiner
continued with a loud, endless tirade about how I have been lying and
that I should confess to other times I had used drugs. I answered that
there were no such other times, and if there were, I would have told
him about it in the first place. He then said something to the effect
``No, I know you wouldn't tell me Pascal.'' My jaw dropped in
indignation as he made me feel like a criminal in a police
investigation. The examiner's manner of speaking to me smacked of a
police-drama show on TV.
Similar exchanges ensued for quite some time. I would maintain that
I had in fact told him of absolutely any and all involvement I had with
drugs, however, he would keep insisting I was not telling him
``something''. At one point, he shook his head and made comments
suggesting that my ``story'' about using marijuana after my father
dying was ridiculous. I was extraordinarily upset hearing such
characterizations. The circumstances arising from my father's death
were being mocked and I was being accused wrongly of dishonesty. I felt
insulted beyond words. The examiner was adamant in his fallacious
convictions and I was physically drained from spending several hours
there already, Finally, I became exasperated and asked to leave, as the
situation was hopelessly deadlocked. However, the examiner continued to
argue ominously with me for a good while longer, and then just left the
room. I was hoping to be released, but dared not leave the room until
being told I could, as I was petrified by this stage.
After ten or fifteen minutes elapsing (with the polygraph sensors
still attached), a different man walked into the room, introduced
himself as the head polygraph examiner, and removed the sensors. I
hoped he would just tell me I could leave. Instead, he firmly asserted
``You're being deceptive and untruthful,'' which I answered was not the
case, which in turn fueled the same type of back and forth arguing as
with the first examiner. It became apparent that he was following the
first examiner's lead. He indicated that the polygraph waveforms looked
as though I ``shotup last night'' with some drug, adding that my
wearing a long sleeve shirt made him suspicious. I reacted by starting
to unbutton my sleeves to show him the puncture-free skin on my arms,
but he told me stop before I could pull-up my sleeves. I found his
statements as offensive as those of the first examiner.
He began to argue that since I completed both an undergraduate and
a graduate degree successfully, and that since I was doing well
professionally, then I was probably not an inveterate drug user.
Indeed, that much is true. He continued by stating that the US
Government is not concerned about small amounts of drug use, so I
should admit to whatever other drug use I did, so that they could know
they could trust me. Just as with the first examiner, I replied that if
there were any other drug use, I would have told them, but there was no
such other use. I indicated that I understood the stated US
Government's position on drugs. but the fact was that I had told them
everything. He and I were hitting the same brick wall as with the first
examiner. He was making no mention of my being able to leave, and
though I was never physically restrained or told I could not leave. I
was becoming genuinely frightened of my ultimate fate in this place. I
repeated yet again my desire to leave. He threatened that all of my
security clearance processing would be terminated if I left. By then,
obtaining the security clearance was the least of my concerns, and as
such, I asked to leave once again. He exited the room, and shortly
thereafter, yet another man walked in.
This final man introduced himself as the general manager of the
office, and basically reiterated what the previous man said about my
clearance processing being terminated if I left. He then gave me a form
to sign, which I did. I do not recall the specific content of this form
and was never given a copy of it. However, I do clearly recall that by
then, I would have been willing to sign a form indicating I was
President Kennedy's assassin, if it meant I would be let out of there.
Finally, after enduring five hours of hell and signing the form, this
last roan showed me the door.
Without question, this was the most demeaning and insulting
experience of my life. My integrity had never been so baselessly
attacked and defiled. I felt bullied, mugged, and violated. I was so
upset and traumatized by the five-hour ordeal that I almost got myself
killed driving back home from not paying attention to the road.
Moreover, I could not sleep at all that night, despite my laying in bed
over ten hours.
After this experience, I am completely dumbfounded by my
government's quasiexclusive reliance on polygraph junk science. When
prompted to submit to the polygraph, I gladly consented since I had
nothing to hide. I thought to myself that nothing could go wrong. Now,
I know first hand that the polygraph is a sham as a scientific tool. No
physiological pattern is unique to lying. Being nervous, tense, or not
breathing right are invitations to examiners accusing one of deception,
and subsequently harassing and abusing one to no end. If the polygraph
genuinely worked, there would not be such massive controversy
surrounding it, the National Academy of Sciences would not be tasked
with an 18-month study of it, and the Employee Polygraph Protection Act
would not exist. Our government's reliance on this tawdry trinket has
already cost this country a great deal, as Aldrich Ames has already
attested. It is my sincere hope that a thorough investigation into
polygraph principles, into the abuse that examiners subject innocent
people to, and into the mistakes committed due to polygraph results
will finally awaken our government into realizing that this toy has no
place in national security investigations.
Statement of Detective William Roche, Northern California
My name is William Roche. I am a police detective in Northern
California. I graduated second in my police academy; I have received
numerous commendations for my community service as well as my criminal
investigations. Based on my achievements, I was selected by my peers to
be our agency's officer of the year.
In the area of criminal investigations, the ability to effectively
interview and interrogate someone will take many phases. A legitimate
phase is to use a ruse during the course of an investigation to have a
person believe you have more knowledge about the crime than you
actually do.
Whether it's a mother saying she has eyes in the back of her head,
or on the many occasions investigators have told suspects a hidden
video camera captured them committing the crime.
Often times to enhance these ruses, props are introduced. It is not
uncommon to have suspects put their hands on computer screens, or even
grab the antenna of a patrol car, and then tell the person the item is
a lie detector that will determine if the person is telling the truth.
It is the belief of the unknown and the ignorance of the person
that causes them to make admissions.
The polygraph is nothing more than a technical looking prop for
investigators to use when interviewing suspects.
To make a determination on guilt, innocence, hiring suitability or
compliance with probation terms based on polygraph results alone is
irresponsible. In a recent case before the United States Supreme Court,
a criminal defendant wanted to use polygraph test results, which showed
favorably for him as evidence in his criminal trial, however, the
United States Government argued against this request stating the
polygraph is too prone to counter measures.
The Justices took note of the Governments position on the case and
wrote there is much inconsistency between the Governments extensive use
of polygraphs to make vital security determinations and the argument it
makes here, stressing the inaccuracy of these tests.
Based on polygraph results alone, it would be negligent to deny an
innocent job applicant of a career, or clear a child molester of
wrongdoing, only to have him strike again because the charts ``zigged''
when they should have ``zagged.''
To give polygraph results any credibility in an investigation or
hiring decision, without the support of an admission or confession, is
reckless and slander.
Not only can polygraph results be manipulated by the examinee, but
also by the polygraph examiner.
The polygraph monitors a person breathing and heart rate. As we all
know, the ability to manipulate this is very easy. Imagine a Doctor
telling you that you have serious disease just seconds before he
monitors your heart rate. The results would obviously not be accurate
measurement.
In 1997 I applied to the Secret Service. What I experienced forever
changed my life.
Before the Secret Service agents would administer the polygraph
exams, they interrogated and agitated me. At times even yelling and
making threatening gestures to the point I moved my head in fear of
being struck. I still remember my hands trembling out of pure anger as
the electrodes were being strapped to my fingers. This occurred for 13
hours over the course of two days.
Even though the behavior of the agents was outside their standards
in training, my conditional job offer, as well as my dream, was taken
away from me
However, in my research I learned polygrapher's manipulating
polygraphs is all too common.
With no recording devices, there is nothing to prevent a
polygrapher from stimulating the person. If society thinks police
profiling through traffic stops is an issue, imagine the vulnerability
of a criminal defendant or applicant for a job where polygraphists are
allowed to inflict their personal biases into the examination.
Remember though, even a professionally administered polygraph is
only 50% accurate, but at least there is 50% chance of passing, where
there is virtually none when it is conducted unethically.
In conclusion, imagine the next time you are walking through an
airport metal detector. Suddenly the alarm goes off. You know you have
done nothing wrong, but instead of researching the issue, you are
labeled a security risk and escorted from the airport banished from
ever flying again.
That same scenario is played out in real life everyday with the
polygraph. Please, you have the power to stop this and protect your
citizens.
I have a web site where I have compiled my information. It is
located at stoppolygraph.com.
Thank you for your time and consideration.
Senator Specter. Thank you all very much.
[Whereupon, at 11:23 a.m., the Committee was adjourned.]
[Questions and answers follow:]
QUESTIONS AND ANSWERS
Responses of Michael H. Capps to questions submitted by Senator Leahy
Question 1: In Mr. Kifer's testimony, he refers to ``prior
studies'' indicating that the polygraph has ``an accuracy rate'' of
between 90 percent and 99 percent: Is there any report in the peer-
reviewed sciendic literature establishing that polygraph screening has
a higher accuracy rate than 90 percent? If so, could you please
identify that study?
Answer: In the testimony of Mr. Richard W. Kiefer before your
Committee, Mr. Kiefer indicated that polygraph testing had an accuracy
rate of between 90 percent and 99 percent. There are no research
studies involving counterintelligence polygraph screening examinations
that support an overall accuracy of 90-99 percent. When addressing
specific issue examinations a significant body of literature
demonstrates that polygraph decisions for criminal investigations have
an error rate often percent or less. In the U.S. Supreme Court case
U.S. v. Sheffer (523 U.S. 303 (1998)], numerous laboratory and field
studies were identified by the Committee of Concerned Social Scientists
as Amicus Curiae in Support of the Respondent as ``high quality
laboratory studies of the control question test.'' The Committee of
Concerned Social Scientistss reported the following:
In nine laboratory studies, 91 percent of the subjects were correctly
identified when inconclusive opinions were excluded.
In five field studies, the accuracy reported for correctly identifying
the guilty was 95 percent; the innocent were correctly
identified in 75 percent of the examinations.
In five field studies using the original examiner's opinions, the
accuracy rate for correctly identifying the guilty was 97
percent; the innocent were correctly identified in 98 percent
of the examinations.
Question 2: Mr. Keifer opines that; if Robert Hansen had been given
a polygraph examination, he would have ``reacted with greater than 99%
certainty.'' Yet we know that Aldrich Ames was not caught even though
he was given two polygraph examinations while he was at the CIA and
that other guilty people passed polygraph tests. Is there any reliable
basis to estimate the probability that a particular person would or
would not pass a polygraph test?
Answer: There is no body of research that allows one to predict
with certainty the outcome of a given polygraph examination. Estimating
the probability that a particular person would or would not pass a
polygraph test, a priori is not currently possible. Research indicates
(Raskin, 1988) that with the levels of oversight imposed on government
examiners which require standardized polygraph procedures and
standardized numerical evaluations an accurate polygraph decision is
usually the result.
While it is widely publicized that Aldrich Ames was not identified
as a spy as a result of his polygraph testing, it is seldom stated that
during the conduct of his two polygraph examinations, significant
responses to the relevant questions did occur. House Intelligence
Committee Chairman Representative Dan Glickman related that Ames had
been detected as deceptive in two of his answers (New York Times,
August 10, 1994). Similarly, then-CIA Director James Woolsey (New York
Times, March 8, 1994) acknowledged that the CIA had failed to follow-up
on Ames' failure on two polygraph questions.
Question 3: Everyone acknowledges that ``false positive'' polygraph
examinations can occur in which innocentpeople will show deceptive
reactions. In addition, Mr. Keifer estimates that ``there might be a
maximum of 3 spies in a population of 10,000.'' Assuming for the sake
of argument that Mr. Keifer's estimate of the frequency of espionage is
correct:
a. Is it likely that if you give polygraphs to 10,000 people in
order to catch the three spies, you will get hundreds of false positive
responses?
Answer: As in other forensic disciplines, false negatives and false
positives do occur in polygraph testing. However, based upon government
research and statistics routinely collected by DoD, the occurrence of
false positives in counterintelligence scope polygraph examinations is
not believed to occur in significant numbers. Research has shown that
using a two-step process can mitigate these results. In this process,
the examination proceeds from the multiple issue questions asked during
the initial phase of testing to a single-issue test format during the
subsequent phase. These additional testing phases are administered on
an as needed basis to clear up issues to which the examinee showed
significant responses. This methodology is consistent with Meehl and
Rosen's ``successive hurdles'' approach (1955), which serves to lessen
the adverse effects of imperfect validity and unbalanced base rates.
This approach is similar to medical diagnostic screening strategies
wherein tests with high sensitivity are given to the population of
interest followed by testing those with positive results using
procedures that have better specificity.
Using DoD statistics for feral year (FY) 2000 as an example, 7,890
examinations were conducted involving counterintelligence scope
polygraph examinations.* Of the 7,890 examinations, 7,688 were
evaluated as no significant response (non-deceptive) and 202 were
evaluated as significant response (deceptive). Of the 202 evaluated
significant response, 191 individuals made admissions to the relevant
issues tested. Through additional polygraph testing, all relevant
issues were resolved favorably for the examinee, i.e., they were able
to maintain their clearance.
Of the 202 individuals who exhibited significant responses and/or
provided substantive information, 194 received a favorable
adjudication, three were still pending adjudication and five were
pending investigation at the time of the DoD report, and none received
adverse action denying or withholding access.
Using these statistics, the greatest possible number of false
positive outcomes for the entire PY is eight. This is a possible false
positive rate of less than one percent *Does not include NSA or NRO
b. Assuming that the three spies all fail their polygraph tests,
they would be only three out of perhaps hundreds of employees who
failed the test. How are investigators going to be able to find the
three real spies and not unfairly cast suspicion on all of the innocent
employees who have false positive results?
Answer: Federal polygraph programs are designed to assist the
investigator in identifying persons who merit further investigation
prior to granting or denying access to sensitive information. In this
context, the polygraph technique has shown itself to be the most
efficient method for providing investigative leads for the adjudicator.
However, it is important to remember that the polygraph technique is
only one of the steps used in personnel screening.
Polygraph examinations during tech significant responses occur to
the counterintelligence questions are provided to adjudicators. Based
upon the information gathered through all sources of the personnel
screening process, agency adjudicators may decide to take no action,
conduct a more thorough background investigation, or to forward the
information for investigation.
In FY 2000 based on information gathered during DoD polygraph
examinations, adjudicators made determinations of the security
worthiness of 7,890 persons. As demonstrated by DoD statistics, 202
individuals were identified as significantly responsive to relevant
questions relating to security issues, and 191 of these persons
provided substantive information that allowed adjudicators to make
informed decisions about referral for investigation or granting the
clearance. Only eight persons out of 7,890 were possible subjects of
investigations; five were referred for investigation. These statistics
also indicate that persons who show significant responses during a
polygraph examination usually are not involved in espionage but
committed security violations of some kind.
Question 4. Do you believe it is appropriate to exclude someone
from government employment; without any independent corroborating
evidence of deception or other information indicating that the
applicant is unqualified for the position, solely because that person
failed a polygraph? If not, what specific steps should be taken to
insure that this does not occur?
Answer: Federal agencies should not exclude an applicant for
employment solely because he/she reacts to relevent questions during a
polygraph examination. Polygraph examinations are investigative tools,
and sole reliance on them, or any other single tool, may not result in
the level of decision accuracy equal to that of an adjudicative process
that considers multiple sources of information. The polygraph
examination consists of a set of standardized procedures designed to
resolve issues during an applicant's screening examination- If at the
end of the polygraph testing an applicant continues to demonstrate
significant responses to counterintelligence issues and provides no
information that would disqualify him/her from consideration, the
polygraph decision should be provided to the adjudicators. The
adjudicators should seek to verify information gained during the
polygraph examination through the background investigative process.
Once all information is gathered and provided to the adjudicator, an
employment decision should be made for the best-qualified applicant.
The criteria to determine the best qualified should not overly rely on
any single tool, including polygraph testing.
Question 5. If someone is told that they have failed a polygraph
test, is it more likely that that person will have an adverse
physiological reaction if the same questions are asked in a subsequent
polygraph test?
Answer: The effect of telling a person they failed a polygraph
examination cannot be stated with certainty. In the absence of
definitive research, field practices have safeguards that consider this
factor. Subsequent to initial. polygraph testing, if a person reacts
significantly to a relevant question, the person is advised of this
outcome in a positive, professional manner. The individual is correctly
informed that a given question has not been resolved and the examiner
solicits an explanation. A relatively short-lived, positive
confrontation seldom has deleterious affects upon subsequent polygraph
testing. The concern of most persons is that once an individual has
been told that the individual had problems with the espionage question
he/she will become sensitized to that question and will consistently
and significantly respond to that question regardless of his/her
veracity. Government research, DoD statistics, and the daily practical
experience of federal polygraph examiners involving counterintelligence
scope polygraph testing do not support this intuitive position.
The FY 2000 DoD statistics demonstrate that 199 persons required
more than two series of questions to complete their examinations.
During this same time a total of 66 examinations required more than one
day to complete. In both of these instances, a positive confrontation
would have occurred between the examiner and the subject of the
examination. As indicated in the DoD statistics, even though persons
are confronted about issues arising as part of the screening
examinations, the vast majority (all but eight of 191) successfully
completed the polygraph process. Research also supports the position
that after a person has been found deceptive during initial polygraph
testing, subsequent testing results in non-deceptive opinions being
appropriately rendered. Research indicates that the error rates for
examinees that demonstrate significant responses during initial testing
can be mitigated if subsequent examinations are more focused. This
occurs because the initial testing of a screening examination involves
broad and general questions while subsequent series are able to focus
the examinee on more direct issues.
Question 6: Can chemical substances affect the results of a
polygraph test? Is there a comprehensive list of prescription drugs and
other substances that are known to alter the results of polygraph
tests?
Answer: Virtually all polygraph examinations require that the
examinee demonstrate the ability to respond to at least one question.
To effectively alter the results of a polygraph examination, a chemical
substance would have to demonstrate a differential effect. That is, the
substance would have to suppress responses to some questions but not to
others. To the best of our knowledge, no substances with this quality
exist No known drug is capable of selecting only certain questions on
which to exert an effect.
The studies listed below indicate that specific drugs (alcohol,
propranolol, diazepam, and methylphenidate (meprobamate), and trasicor)
do not influence the results of polygraph examinations. Only the Waid,
Ome, Cook, and Ome (1981) study suggests a drug effect, and this result
is not supported by subsequent research. Moreover this study used a
testing format rarely used outside of the laboratory and not at all by
federal polygraph programs.
Bradley M. T., and Ainsworth D. (1984). Alcohol and the
psychophysiological detection of deception. Psychophysiology,
21(1): 63-71.
Elaad, E., Bonwitt, G., Eisenberg, O., and Meytes,1. (1982). Effects of
beta blocking drugs on the polygraph detection rate: A pilot
study. Polygraph, 11:229-233.
Gatchel RJ., Smith J.E., and Kaplan N.M. (1.983). The effect of
propranolol on polygraphic detection of deception. Abstract of
unpublished manuscript, University o# Texas Health Science
Center, Dallas, TX 75235.
Iacono, W.G., Boisvenu, G.A., and Fleeting, J.A. (1984). Effects of
diazepam and methylphenidate on the electrodermal detection of
guilty knowledge. Journal of Applied Physiology, 69(2): 289-
299.
Iacono W.G., Cerri A.M., Patrick C.J., and Fleeting J.A.E. (1987). The
effects of antianxiety drugs on the detection of deception.
Psychophysiology, 24: 594 (abstract).
Waid W.M., Orne E.C., Cook M.R., and Orne M.T. (1981). Meprobamate
reduces accuracy of physiological detection of deception.
Science, 212: 71-73.
The Department of Defense Polygraph institute funded the Cail-
Sirota and Lieberman (1995) study. This study resulted in establishing
a database relating to drugs and their influence on the outcomes of
psychophysiological detection of deception examinations. The Department
of Defense Polygraph Institute lesson plan titled, ``Pharmacology Drugs
and Psychophysiological Detection of Deception Testing,'' dated January
2001, provides a list of drugs that examiners could expect to encounter
and the drug's effects upon the individual.
Question 7: Is there any research indicating whether certain
personality types have an easier time passing polygraph tem7
Answer: There is no research to indicate that the effects of
personality variables are consistent for the various polygraph
techniques. Personality is not an explicit component in any of the
theories of polygraph, and it is not viewed as an important factor by
field practitioners, which may explain why it has rarely been the focus
of investigation in polygraph research. Some researchers have reported
on the influence of demographic and psychological variables in their
polygraph validity studies. Refer to attached Table for a summary of
those effects.
Question 8: Is there any research indicating whether certain ethnic
or social groups have an easier time passing polygraph tests?
Answer: Since the 1960s, university and government researchers in
the U.S. and elsewhere have conducted research on ethnicity and the
polygraph. The trend has been that there are no meaningful differences
in accuracy, but the research evidence has mot eliminated ethnicity
entirely as a factor. For example, desert-dwelling Bedouins have shown
a dampened responsiveness in one channel but not in another channel.
Similar results were found for Icelandic criminals. To date, among the
population typically afforded polygraph testing in the U.S., an effect
for ethnicity alone has not been shown to be reliable.
Question 9. How do you insure that routine polygraph tests do not
probe into purely private matters? Are there arty questions that are
off What safeguards exist to prevent the release of private
information?
Answer: Agencies provide written guidance to examiners that
prohibits examiners from probing issues that are not related to the
matter under inquiry. Individual agency policy requires that all
questions asked during polygraph examinations must be reviewed with the
examinee before the examination questions asked must be of special
relevance to the subject matter under inquiry. Questions probing a
person's thoughts or beliefs that are not related directly to the
matter under inquiry are prohibited. The probing of a person's beliefs
(such as religious beliefs and affiliations, beliefs and opinions on
racial matters, and political beliefs and af Eiliations of a lawful
nature) and questions that have no security implication are prohibited.
The federal polygraph standards state that all relevant questions
must pertain directly to the matter under investigation or to the
issue(s) for which the examinee is being tested. The federal polygraph
standards also require that all questions asked during the data
collection phase of the examination be reviewed with the examinee prior
to the initiation of the examination.
The rights of the individual examinee are a primary consideration
of the Quality Assurance Program, which is a program administered by
the Department of Defense Polygraph Institute. This program verifies
that each participating agency complies not only with their agency
policies but also adheres to the federal polygraph standards. The
Quality Assurance Program assures compliance through the use of
biennial on-site inspections in which the agency's quality control
procedures, policies, and the samplings of the examinations conducted
by that agency are reviewed. During the inspection process a random
sample of between 50 to 100 polygraph examinations is reviewed. As part
of the examination review, the motes produced by the examiner during
the examination are scrutinized to ascertain what issues were discussed
with the examinee during the conduct of the examination. Any
discrepancies are noted and corrective action recommended to the
agency.
Responses of Michael H. Capps to questions submitted by Senator
Grassley
Question 1: Let's say that an employee polygraph exam ends with a
deceptive result with no admission of guilt. How do agencies deal with
this situation? How about an inconclusive result?
Answer: My understanding is that policies concerning the use of
polygraph vary across agencies. I cannot state with certainty how
individual agencies express and carry out certain policies.
Question 2: My understanding is that most examiners within the
ranks of federal law enforcement are non-supervisory or journeyman
level personnel Can we expect these agents to adequately administer
polygraph examinations to Senior Level officials within their own
agency?
Answer: Based upon their training and experience, senior field
examiners are capable of conducting valid examinations of senior agency
personnel. If a welt-trained examiner uses a standardized polygraph
procedure, very accurate results can be expected (Raskin, 1988). It is
noted that DoDPI is the U.S. government's consolidated training
facility for polygraph examiners from all federal agencies. To qualify
for entry into the program, a candidate must be a U.S. citizen, be at
least 25 years of age, hold a 4year degree or demonstrate an ability to
master graduatelevel courses, have two years of investigative service,
have completed a background investigation to confirm a sound
temperament and character, and benominated and supported by his or her
home agency. The DoDPI polygraph curriculum is taught at the master's
degree level and provides a balance of a challenging academic load and
technical skills practica. Those students who satisfactorily complete
the DoDPI education program are released to their home agencies where
they serve internships and remain subject to quality control and
continuing education requirements for their entire professional careers
as Federal polygraph examiners.
Question 3: Will there be adverse consequences for employees who
refuse to take a polygraph examination?
Answer: My understanding is that policies concerning the use of
polygraph vary across agencies. I cannot state with certainty how
individual agencies express and carry out certain policies.
Question 4: If there are to be adverse consequences for not taking
the exam, will this create an uncooperative emotional condition that
could affect the results of an exam?
Answer: To my knowledge there has never been any research to
address this issue.
Question 5. FBI regulations prohibit the use of the polygraph as a
``substitute for logical investigation by conventional means'' (FBI
Poly. Reg. 13-22.299(2)). Does this mean that, if all other factors are
in order, the failure of a polygraph examination in the context of a
national security update will not necessarily result to an adverse
action?
Answer: I am not familiar with the policies and practices of the
FBI and cannot provide information responsive to this question.
Responses of William G. Iacono to questions submitted by Senator Leahy
(Questions have been shortened and paraphrased)
Question 1: Is there any report in the scientific literature
establishing that polygraph screening has a higher accuracy rate than
90%?
No. If anyone says this Is true, they are likely to be either
misrepresenting the scientific literature or citing nonscientific
opinion from polygraph or police trade journals.
Question 2: Regarding the likelihood that Robert Hanssen would have
reacted with greater than 99 certainty had he taken a polygraph, is
there any reliable basis to estimate the probability that particular
person would or would not pass a national security screening polygraph?
No. The claim that Hanssen could have been detected with greater
than 99% certainty is impossible to support using any credible
scientific data. Besides the fact that these tests are not capable of
such accuracy, Hanssen would probably have been smart enough to learn
how to use countermeasures to defeat any test he took. As I mentioned
In my oral Senate hearing testimony, information about countermeasures
can be obtained at libraries, from books (e.g., David Lykken's ``A
Tremor in the Blood ''), and the internet (at http:/Iantipolygraph.org/
pubs.shtrol).
Question 3A: Given that there are 3 spies per 10,000 people, is it
not likely that if you give polygraphs to 10,000 people in order to
catch, three spies, you will get hundreds of false positive responses.
If the charts were scored according to government standards so that
Individuals responding more strongly to relevant questions would be
deemed to have failed the polygraph, it is likely that there would be
over 2,000 false positives. The only reason such high rates of false
positives are not currently In evidence is that government examiners,
fully aware of the high rate of false positives, pass most of those
whose charts indicate a failed polygraph to avoid the embarrassment and
chaos that would follow if large numbers of individuals failed.
Question B: Given that the three spies failed tests are included
among, those of hundreds of innocent people who failed the test, how
are investigators (illegible) to find the three real spies and not
unfairly cast suspicion on all of the innocent employees who have false
positive results?
There is no way these dual objectives can be attained. The only way
to be certain all three spies would fail the tests would be to fail
every single person who takes one. Likewise, false positives can be
eliminated by passing everyone. If the test was 90% accurate (very
unlikely) and none of the spies would be caught at the expense of 1,000
innocents failing. It would be very difficult to identify the few spies
in this large group. It would be even more difficult to do so without
negatively impacting the careers of the 1,000 innocents failing. It
would be very difficult to identify the few spies in this large group.
It would be even more difficult to do so without negatively impacting
the careers of the 1,000 innocents as their lives are turned upside
down by the type of thorough investigation that would be needed to
resolve conclusively every failed polygraph.
Question 4: Should someone be excluded from government employment
solely because the person failed a polygraph?
Answer: No. The vast majority of those who fail are not guilty of
any offense that should preclude employment. Using these invalid tests
to deny them employment is a violation of their civil rights and it
deprives the government of highly qualified employees. It is also cost
ineffective because often polygraph tests are administered after
lengthy, costly procedures have been completed and the determination
made that the applicant is likely to be suitable for employment.
What specific steps should be taken to make sure no one is denied
employment for failing a polygraph test?
A law passed by Congress is required because current law does not
prohibit this from occurring.
Question 5: If someone is told they have failed a polygraph, is it
more likely a person will have an adverse reaction to a second
polygraph?
Answer: No studies have been carried out to address this question.
In fact, no studies have been done to determine if polygraph tests
produce consistent results consistent results from one occasion to
another. Nevertheless, it is highly likely that retesting a person and
requiring that both tests be failed for adverse action to result will
not the rights of an employee. First, it is virtually never the case
that a second test is conducted with the examiner blind to the results
of the first test. That being the case, the only way someone can pass
the second test is if the second examiner finds the first examiner, a
likely friend or colleague, was wrong, an unpalatable outcome. Second,
innocent people do not fail tests at random. The factors that caused
them to fail the first test are likely to cause them to fail the second
test, especially now that they have no reason to believe the tests are
accurate.
Question 6: Can chemical substances affect the results of a
polygraph, and is there a comprehensive list of substances known to
affect polygraph results?
Answer: There is no list of substances known to affect polygraph
tests because there is very little research on this question. There are
hundreds of drugs that could influence test outcomes, only a few of
which have received any study at all. The effects of (illegible) drugs
have received no research attention. I have published three papers
(illegible) of propranolol, diazepam, meprobamate, and alcohol were
(illegible) types of polygraph tests (but not a screening-type test).
None of the drugs enabled guilty individuals to pass their test. For a
drug to affect directly polygraph outcome, it must attenuate the
response to the relevant question while having no comparable effect on
the control question. It is unlikely that many drugs could be expected
to have such a selective effect. However, there are ways drugs may
indirectly affect polygraph outcome. For instance, the effects of drugs
that specifically affect the physiological measures that compose
polygraph tests have received little attention. Sweat glands (GSR
channel) and cardiovascular activity (cardio or blood pressure
channel), for example, are both innervated by neurons that use the
neurotransmitter acetylcholine. Drugs that block this neurotransmitter
(there are many) may greatly attenuate the likelihood that the GSR and
cardio channels are responsive enough to be useful distinguishing the
size of response between relevant and control questions. This would
leave the outcome of a test to be determined primarily by respiratory
activity. Respiration is the least reliable of the three channels that
compose a polygraph test, and Is under voluntary control, thus making
it easy to manipulate. Hence, the use of these drugs could confer an
advantage a guilty person taking a polygraph.
Question 7: Is there any research showing that certain personality
types have an easier time passing a polygraph?
Answer: There Is research Investigating a subtype of antisocial
personality disorder called psychopath). Psychopaths are skilled liars
who experience no remorse for their antisocial behavior. Two studies
have found that psychopaths do not have an easier time passing
polygraphs when the outcome of the test is based on the physiological
data. However, the government's own data indicate that many individuals
who fail the physiological test nonetheless are passed by their
examiners because they convince them they have done nothing seriously
wrong. Impression management through lying is exactly what psychopaths
are good at. Hence, there is good reason to believe they could pass
screening tests.
Question 8: Is there any research showing that certain ethnic or
social groups have an easier time passing a polygraph?
Answer: There are no investigations examining how ethnicity of the
examine affects his or her physiological responses. Nor is it known how
the ethnic biases of an examine tested by a polygrapher of different
ethnicity affect the physiological data. However, as noted above,
whether a person passes a test depends on the subjective judgment of
the polygrapher. If the polygrapher holds racial stereotypes or has
ethnic biases, these attitudes will affect how the polygrapher decides
the outcome of tie test.
Question 9: Now do you ensure that routine polygraph tests do not
probe Into purely privates matters? Are there any questions that are
off limits? What safeguards exist to prevent the release of private
information?
Answer: Apparently with the exception of the CIA, government policy
prohibits tests that get into lifestyle issues. However, examinees I
have spoken with state that once the standard question set has been
asked, examiners frequently delve into private matters in an effort to
``clarify'' the meaning of reactions they get to certain questions. The
only way to guarantee employee right is to video or audiotape all
polygraph tests, giving a copy to the examinee as soon as the test is
over. Then examiners will avoid these kinds of questions because they
will know they can be held accountable. Currently, tests are either not
recorded or they are and the (illegible) is not given immediate access
to the tapes. Hence, examinee claims of mist (illegible) be verified.
Responses of William G. Iacono to questions submitted by Senator
Grassley
Question 1: How do agencies deal with a polygraph that ends in a
deceptive result with no admissionof guilt?
Answer: Government data from the DOD annual reports to Congress
reveal that typically no formal action is taken against employees in
this position when they take counter intelligence scope polygraphs.
However, left unansered is how the careers of these persons are
affected by such an outcome. Do they get good assignments and are they
promoted? Jeffrey Smith, former CIA General Counsel, has noted that in
the CIA (CIA testing is not included in the DOD annual reports to
Congress) there have been many employees whose careers were put on hold
as a consequence of deceptive polygraphs. What ultimately has happened
to these people's careers?
Question 2: How about an inconclusive result?
Answer: Inconclusive results require additional testing until the
examiner is willing to make a deceptive or truthful verdict.
Question 3: Can we expect journeyman level polygraphers to
adaquately administer polygraphs to senior officials in heir own
agency?
Answer: No. Examiners are only human. They know they cannot fail a
superiro without corroborating evidence of wrongdoing. The only way to
get around this problem would be to guarantee polygraphers job security
and career advancement no matter how they call cases. This would be bad
policy, however, because it would formally establish polygraphers as a
type of judge/jury that answers to no one.
Question 4: Will there be adverse consequences for employees who
refuse to take polygraphs?
Answer: By law, they can be denied access to classified data. This
can have a substantial effect on their careers, and likely would
involve re-assignment to other jobs for which the employee is
qualified. Doe has admitted however, that if such jobs do not exist
within commuting distance of an employee's current job location,
termination of employment may result.
Question 5: If there are adverse consequences for not taking the
exam, will this create an uncooperative emotional condition that could
affect the results of the exam?
Answer: Yes. The polygraph profession's code of ethics requires
that exams not be given without an individual's consent. Government
workers cannot voluntarily give consent, and the consent forms DOE
examiners use no longer contain the word ``voluntary.'' Being forced to
take an exam is likely to make examinees overly anxious, increasing the
likelihood of false positive outcomes.
Question 6: Regarding the FBI, will failing a national security
update polygraph when all other factors are in order result in an
adverse action?
Answer: This is a question for the FBI to answer, but I would
encourage the government to conduct the following study: Identify all
individuals who have had deceptive outcomes on polygrah tests. Then
match them to a group of employees of similar rank and qualifications.
Following the paths of both groups for five years and determine if the
members of the two groups experien e similar career advancement. I am
worried that those in the failed group will be disproportionately
likely to quit and find their careers stalled. Such a study could be
done no using DOD data from all the people tested with counter
intelligence scope polygraph tests.
Responses of Richard W. Keifer to questions submitted by Senator Leahy
Answer 1: The Department of Defense Study DOD P 194-R-0009 provides
an accuracy of 98% with programmed guilty and 83.3 % programmed
innocent. Testimony at the hearing was provided indicating laboratory
studies might not generalize to real life testing.
Answer 2: Confidence levels can be established to estimate the
probabilities that you will get certain results in certain populations.
Therefore an estimate of the accuracy of any individual can be
established. Studying the results of actual testing can then check the
reliability of these estimates. The key word is ``reacted'', and I am
confidant Hansen would have reacted. Whether or not he would have been
identified as a spy is up to the agency to determine. The use of Ames
not being caught on a polygraph is a good example of the difficulty of
espionage cases. It is my understanding Ames was identified during
polygraph testing as having problems and was cleared by the CIA's
adjudication process.
Answer 3: My assumptions of 3 in 10,000 was used in 1994 as a model
for the conduct of examinations for the FBI so we could anticipate
results and define resourses we would need to manage the program. Your
assumption in 3a. is correct regarding the first polygraph examination.
It is my opinion that reexaminations will reduce the false positives
and it is my understanding from agencies that conduct this testing this
is the case. Because some agencies could be lax, and simply ``pass
everyone'', and independent audit must be conducted. How investigators
uncover the real spies and not unfairly cast suspicion on the false
positives is the some problem these investigators face with the entire
agency. The polygraph has reduced the numbers in that pool
significantly. What you know with 99.9% confidence is the spy is in
that pool.
Answer 4: For pre-employment polygraph examinations, I do not
believe anyone should be excluded based solely on the results of the
polygraph. The use of the polygraph as an aid to investigations and not
a substitute for it is a policy I support. To ensure this policy is in
effect I would establish written policies for each agency and audit
their results. Since a polygraph report is part of their personnel
file, I would have the report state that reactions were noted or not
noted. Deception or non-deception is a conclusion about what these
reactions mean. Most agencies have written guidelines in these matters.
Answer 5: Being told you have failed questions could cause
reactions to further testing on the same questions. If interrogated in
a strong manner, and if innocent, a sensitization could occur. There
are methods that are effective in retesting and I use them frequently.
Answer 6: The key to polygraph is that we are monitoring relative
differences between reactions. Ever, if a drug stabilized blood
pressure and minimized that change possible in blood pressure, it would
do so throughout the entire test. The relative comparisons between
questions are still there. Study to date show drugs do not affect the
accuracy of the polygraph. I don't have the research available but I
believe it was conducted by Dr. Drew Richardson of the FBI and some may
be available at the DODPI. If drugs are suspected they are easily
detected.
Answer 7: There is research by Raskin and Hare on prison
populations of diagnosed psychopaths that indicates they are detectable
at approximately the same levels as the general population.
Answer 8: See Department of Defense studies regarding race and
gender difference in polygraph testing. It appears there are no
relative differences in rates of detection. Further, polygraph is used
in Israel. Singapore, Japan, Mexico, and Canada.
Answer 9: To insure polygraph does not probe into private matters,
you could record sessions. I believe the privacy concern should
outweigh the burdensome records keeping requirements now in place.
Written policies have been if effect my entire government career in the
FBI Manual of instructions regarding prohibited questioning. These
questions ranged from religion, sexual preference, union activities,
etc, Management rigorously enforced these privacy concerns.
Responses of Richard W. Keifer to questions submitted by Senator
Grassley
Answer 1: Deceptive with No Admissions of Guilt or an inconclusive
result. I have been in the private sector since 1996, and am not
certain what individual agencies do now. I am certain most individuals
would initially be offered a reexamination. If these individuals
continued to react I would suspect the employees past work product and
access would be closely reviewed, and checked against internal
espionage investigations for suspicious patterns. What additional
proactive investigative steps would then be conducted, I do not know.
There should be a defined adjudication process in place. Some agencies
do a modest amount of investigation, and if they can't resolve the
matter, refer these cases to the FBI for adjudication.
Answer 2: Most examiners in law enforcement are GS 12 and GS 13's.
These agents now conduct investigations of corruption involving the
highest levels of the government and also conduct internal
investigations. I believe the examiners need to be assigned in a
separate administrative division to maintain their independence.
Examiners should not test anyone they know. Audit and compliance will
insure the correct policies are being followed.
Answer 3: Will there be adverse consequences for not taking the
examination, and would this create an uncooperative condition that
could affect the results of an examination? From my past experience I
would think there would be administrative consequences to anyone who
refuses to follow agency policies. Therefore people could be ordered to
take an examination. I believe these conscientious objectors should be
prepared for the consequences. Internal security cannot be perceived as
a game. If any testing was conducted, a recorded record should be
maintained. Noncooperation could influence the results but may not. I
would then judge these matters on a casebv-case basis.
Answer 4: Regarding FBI Regulations. I am not a current FBI
employee. FBI Polygraph Reg: 13-22.299(2) was the standard that was
used in criminal specific testing and is a policy I support. I do not
know what policies are now in effect in applicant and security testing.
In the area of employee testing there is an important distinction
between those who react to questions and those who are concluded to be
deceptive. I would interpret the history of the use of the polygraph in
the FBI and our current knowledge of the capabilities and limitations
of the polygraph to mean that adverse action will not necessarily
result.
Responses of Mark S. Zaid to questions submitted by Senator Leahy
Question 1: In Mr. Kiefer's testimony, he refers to 'prior
studies'' indicating that the polygraph has ``an accuracy rate'' of
between 90 percent and 99 percent. Is there any report in the peer-
reviewed scientific literature establishing that polygraph screening
has a higher accuracy rate than 90 percent? If so, could you please
identify that study.
Answer: Almost every available polygraph study conducted pertains
to specific incident criminal investigations (i.e., identifying the
thief who embezzled funds). This question properly addresses the most
significant aspect affecting current federal polygraph policies. The
Congress needs to be most concerned about the reliability/validity of
polygraph screening tests. It is these types of tests that are
administered every year to thousands of applicants for federal
employment, as well as tens of thousands of current federal employees
who undergo routine security investigations. The primary purpose of the
applicant screening test is to determine suitability while the security
screening test is designed to expose espionage. However, there is
absolutely no scientific evidence that either a of screening test is
reliable or valid. The few studies that exist prove that screening
tests should be stopped immediately.
The largest study of polygraph tests used for national security
screening ever conducted--``Studies of the Accuracy of Security
Screening Polygraph Examinations''--was published in 1989 for the
Department of Defense's Polygraph Institute Down (``DoDPI'') by Gordon
H. Barland, Charles R. Honts and Steven Barger. Although the report was
never classified, the government declined to publish it in the open
literature. Indeed, when the results were first made known to the
respective agencies involved there was tremendous pressure to classify
the entire report. One of the authors, in fact, was forbidden by his
parent agency from publishing or presenting the results. As a
concession to the agencies involved, the association of the agency
names with their performance data was classified.\1\ A copy of the
report is at http://truth. boisestate. edu/raredocuments/bhb. html.
---------------------------------------------------------------------------
\1\ The agencies have since been identified as the Army INSCOM, the
Air Force Office of Special Investigations, the National Security
Agency and the Central Intelligence Agency.
---------------------------------------------------------------------------
The study reports on three mock espionage experiments using
different polygraph screening techniques. In Experiment One, 94% of the
innocent subjects were cleared, but only 34% of the guilty subjects
were identified as deceptive. Thus, the false negative rate (i.e.,
guilty individuals being declared innocent) was a staggering 66%.
Experiment Two correctly classified only 79% of those who were innocent
and 93% of those who were guilty. Finally, Experiment Three identified
90% of the innocent subjects and 81% of the guilty subjects. It is
important to note that the examiners used in these experiments were
trained federal polygraphers who regularly conducted periodic national
security tests for their agencies. Following this primary study, four
follow-up studies were conducted by the Department of Defense. The
results of each supported and strengthened the findings of the primary
study.
Professor Honts, one of the primary authors of the DoDPI study and
a strong advocate of the polygraph, has harshly criticized the federal
government's use of polygraph testing for screening purposes. I
strongly recommend that the Committee review two of his articles on the
topic: ``The Emperor's New Clothes: Application of Polygraph Tests in
the American Workplace'', Forensic Reports, 4:91-116 (1991)(available
at http://truth. boisestate.edu/raredocuments/ENChtml), and
``Counterintelligence Scope Polygraph (CSP) Test Found To Be Poor
Discriminator ``, Forensic Reports, 5: 215-218 (1992)(available at
http://truth. boisestate. edulraredocumentslCSP.html).
With respect to specific incident polygraph studies, from which Mr.
Kiefer derives his statistics from, there have been many studies
regarding the reliability of the polygraph when used in this manner.
The resulting figures have varied widely. Though somewhat dated, let me
recommend one report in particular for review. In November 1983, the
Office of Technology Assessment (``OTA '') issued a report entitled
``Scientific Validity of Polygraph Testing: A Research Review and
Evaluation''. The OTA compiled the results of six prior reviews of
polygraph research, ten field studies, and fourteen analog studies that
it determined met the minimum scientific standards. The results were as
follows:
1) Six prior reviews of field studies:
- average accuracy ranged from 64% to 98%.
2) Ten individual field studies:
- correct guilty detections ranged from 70.6% to 98.6% and
averaged 86.3%;
- correct innocent detections ranged from 12.5% to 94.1% and
averaged 76%;
- false positive rate (innocent persons found deceptive)
ranged from 0% to 75% and averaged 19.1 %;
- false negative rate (guilty persons found nondeceptive)
ranged from 0% to 29.4% and averaged 10.2%.
3) Fourteen individual analog studies:
- correct guilty detections ranged from 35.4% to 100% and
averaged 63.7%;
- correct innocent detections ranged from 32% to 91% and
averaged 57.9%;
- false positives ranged from 2% to 50.7% and averaged 14.1 %;
- false negatives ranged from 0% to 28.7% and averaged 10.4%.
These statistics led to the enactment of The Employee Polygraph
Protection Act of 1988, 29 U.S.C. Sec. 2001 et sea. The Act outlawed
the use of polygraph screening tests in the private sector. Prior to
enactment, it was estimated that each year at least 400,000 honest
workers were wrongfully labeled deceptive and suffered adverse
employment consequences. However, the federal government was exempted
from the legislation.
Given that there are no studies that support either the need or
usefulness of this exemption, the Committee should consider legislation
to have it removed.
Question 2: Mr. Kiefer opines that, if Robert Hanssen had been
given a polygraph examination, he would have ``reacted with greater
than 99% certainty.'' Yet we know that Aldrich Ames was not caught even
though he was given two polygraph examinations while he was at the CIA
and that other guilty people have passed polygraph tests. Is there any
reliable basis to estimate the probability that a particular person
would or would not pass a polygraph test?
Answer: Mr. Kiefer's statement was worded perfectly for use in live
testimony in order to generate shock value, but it has absolutely no
basis in fact. It is no more based on reality than the magic of pulling
a rabbit from a hat. Indeed, as described above, the only government
studies available on screening examinations reveal that guilty
individuals are far more likely to escape detection than even an
innocent person will be falsely accused as high as 66% of the time.
However, more than anything Mr. Kiefer's statement illustrates the
enormous significant dangers that exist with respect to polygraph
screening and the negative impact it can have on federal employees. Mr.
Kiefer served as a distinguished Special Agent of the Federal Bureau of
Investigation for more than two decades, including many years as a
polygrapher, and is a former past president of the American Polygraph
Association. Based on my experiences, his strong bias is quite typical
of government polygraphers in general. With that type of obvious bias
revealed publicly, it is not unreasonable to assume that such an
attitude during an examination would have negative consequences on many
innocent individuals simply because the polygrapher personally believed
something was suspect.
In any event, for purposes of my response, let us presume Mr.
Kiefer's statement is accurate and Mr. Hanssen would have registered
deceptive in a routine screening examination. What then would have
occurred? Based on all publicly available information concerning Mr.
Hanssen's case--and as my legal practice substantially involves
national security matters, I am following the investigation very
closely--there is little, if any, incriminating evidence that would
have been discovered through a follow-up investigation. The
overwhelming evidence against Mr. Hanssen was obtained directly from a
foreign source or agent. Unlike other spies such as Aldrich Ames,
Harold Nicholson, or Edward Howard, there was no suspicious evidence of
significant debt, serious employment disputes, drug or alcohol abuse or
marital difficulties that would likely have prompted additional
investigations and the exposure of espionage activities. Therefore,
even if Mr. Hanssen had registered deceptive--and there is no
scientific basis to conclude this to be so the result would have likely
been no more indicative of a truthful result as that of a false
positive.
While it appears so simple to discuss Mr. Hanssen's case in
retrospect, we cannot use the knowledge we possess now in order to
analyze the possible scenarios that could have occurred had a polygraph
examination been administered. For all anyone knows, a deceptive
reading five, ten or fifteen years ago would have meant Mr. Hanssen was
being falsely accused of something he never did, as occurs every year
to federal employees and applicants, and his career would have unfairly
suffered as a result.
Question 3: Everyone acknowledges that 'false positive'' polygraph
examinations can occur in which innocent people will show deceptive
reactions. In addition, Mr. Kiefer estimates that ``there might be a
maximum of 3 spies in a population of 10, 000.'' Assuming for the sake
of argument that Mr. Kiefer's estimate of the frequency of espionage is
correct:
a. Is it not likely that if you give polygraphs to 10, 000 people
in order to catch the three spies, you will get hundreds of false
positive responses?
b. Assuming that the three spies all fail their polygraph tests,
they would be only three out ofperhaps hundreds of employees who failed
the test. How are investigators going to be able to find the three real
spies and not unfairly cast suspicion on all of the innocent employees
who have false positive results?
Answer: Attorney General John Ashcroft recently admitted that there
exists a 15% false-positive rate. ``Spy-Wary FBI Agrees to
Polygraphs'', Los Angeles Times, Mar. 2, 2001. Based on this figure, up
to 1,500 individuals will be falsely accused of espionage. Even
applying the most conservative false-positive figures, say 1%, then 100
individuals will be stigmatized in order to catch three spies. This
hypothetical scenario became a reality at the Central Intelligence
Agency following the arrest of Aldrich Ames in 1994. Approximately 300
employees had their careers put on hold, some for as long as six years,
until they were finally exonerated of any wrongdoing. Some have likely
never recovered from the experiences, nor will they.
Given existing policies at the federal agencies, it is virtually
impossible to ensure that unfair suspicion will not be conferred on
individual employees during a witch hunt for a spy. This is the essence
of the public policy balance that this Committee must address. Is it
fair and appropriate to knowingly ruin innocent careers while on a
fishing expedition for a spy who likely will never be exposed by the
polygraph? In my opinion, it is not.
Question 4: Do you believe it is appropriate to exclude someone
from government employment, without any independent corroborating
evidence of deception or other information indicating that the
applicant is unqualified for the position, solely because that person
failed a polygraph? If not, what specific steps should be taken to
insure that this does not occur?
Answer: Obviously, I do not. Indeed, this is the very issue that is
being litigated in Croddy et al. v. FBI et al., Civil Action No. 00-
0651 (Mar. 15, 2000 D.D.C.)(EGS) and John Doe #6 et al. v. FBI et al.,
Civil Action No. 00-2440 (Oct. 11, 2000 D.D.C.)(EGS). Federal agencies
routinely rescind conditional job offers based solely on polygraph
results. I would respectfully refer you to the pleadings in these two
cases for further discussion of the relevant legal analysis. Copies can
be found at the following websites: www.nopolygraph.com,
www.stopolygraph.com and www.antipolygraph.org. Based on my
experiences, I would recommend that either screening eligibility tests
are eliminated or that a requirement be imposed that a background
investigation must first be conducted to collaborate any polygraph
results before the information can be considered in the employment
decision.
Question 9: How do you insure that routine polygraph tests do not
probe into purely private matters? Are there any questions that are off
limits? What safeguards exist to prevent the release of private
information?
Answer: Although the American Polygraph Association, the Employee
Polygraph Protection Act and many state licensing laws prohibit inquiry
into such areas as religious beliefs or affiliations, beliefs or
opinions regarding racial matters, political beliefs or affiliations,
beliefs, affiliations or lawful activities regarding unions or labor
organizations and sexual preferences or activities, there are few
prohibitions imposed upon the federal government. For example, the
United States Secret Service routinely questions applicants on sexual
behavior, both lawful (premarital sex) and unlawful (sexual involvement
with animals).
The only means by which to ensure certain areas of inquiry are
forbidden is to require the federal government to comply with the
Employee Polygraph Protection Act. While some exceptions may be
necessary, no agency should be permitted to question individuals on
topics that do not reasonably relate to the skills needed to adequately
perform the position in question.
With respect to the release of private information, there are
essentially no existing safeguards. The extent to which a federal
agency can disseminate polygraph results to other federal, state or
local agencies is governed by the Privacy Act of 1974, 5 U.S.C.
Sec. 552a et seq. The sharing of information is explicitly permitted
under the Act's routine use exception. Id. at Sec. 552a(b)(3).
For example, the FBI maintains a system of records--JUSTICE/FBI-
002--within its Central Records System that pertains to applicants for
employment with the FBI. The system includes all records and
information relevant to an applicant's investigation, personnel
inquiry, or other personnel matters. The FBI may disclose all personal
information and records--even if inaccurate--from this system as a
routine use to any federal agency where the purpose in making the
disclosure is compatible with the law enforcement purpose for which it
was collected, e.g., to assist the recipient agency in conducting a
lawful criminal or intelligence investigation, to assist the recipient
agency in making a determination concerning an individual's suitability
for employment and/or trustworthiness for employment and/or
trustworthiness for access clearance purposes, or to assist the
recipient agency in the performance of any authorized function where
access to records in this system is declared by the recipient agency to
be relevant to that function.
As a result of this ability to freely share information,
individuals who falsely registered deceptive on one agency's polygraph
examination may have that information used against them by another
agency, without ever being given an opportunity to challenge the
underlying allegation of deception. Unfortunately, the enactment of
additional legislation will be required to minimize the extent to which
a federal agency can disseminate information pertaining to polygraph
examinations. Current law is clearly inadequate.
Responses of Mark S. Zaid to questions submitted by Senator Grassley
Question 1: Let's say that an employee polygraph exam ends with a
deceptive result but with no admission of guilt. How do agencies deal
with this situation? How about with an inconclusive result?
Answer: Unfortunately, it is difficult to provide a precise answer
to this question as procedures differ from agency to agency. Typically,
however, should either of the situations occur above, the agency will
initiate further investigation into the individual's background and
activities. Oftentimes, the employee may be transferred to a non-
sensitive or less sensitive position and may even have promotions
withheld. On paper, the employee may very well not suffer an adverse
personnel action. By this I mean, they will continue to hold employment
and remain at the same pay grade.
The most recent example describing this type of circumstance is
that of the FBI. By Memorandum dated March 16, 2001, the FBI announced
it would institute counterintelligence-focused polygraph examinations
to employees who occupy certain assignments or occupations. With
respect to those employees who experience trouble with the polygraph,
the Memorandum noted:
Experience has shown that most FBI employees taking the
counterintelligence-focused polygraph examination successfully
complete the test. However, there may be a very small number of
employees whose tests are either inconclusive or are indicative
of deception. Polygraph examiners will attempt to fully resolve
all unexplained responses through the effective use of thorough
pre-and post-test interviews. If, upon completion of a thorough
examination, there is still an inconclusive or deceptive
response, it will be considered ``unexplained''. Consistent
with existing policy, no adverse action will be taken based
upon the polygraph results alone. However, more extensive
investigation will be initiated to resolve the unexplained test
results.
However, realistically, an employee in this situation will
unequivocally suffer the equivalent of an adverse personnel decision.
Some agencies, such as the CIA and FBI, have taken years to finally
resolve a false-positive or inconclusive polygraph result. Some
employees may be suspended with pay, which is not always considered an
``adverse action''. Employees at the CIA who found themselves in such a
position were not permitted to attain overseas assignments. This is
often the end of a career for individuals employed within the
Directorate of Operations. Scientists under contract at the Department
of Energy who experience polygraph problems will find themselves
transferred to other positions, which often would negatively impact
upon their careers. In my written testimony, I described the situation
of FBI Special Agent Mark Mallah. In his case, it took approximately
two years of intensive and intrusive investigation before he was
finally exonerated. He was so disgusted by how he was treated, he
resigned in protest. Unfortunately, Special Agent Mallah's reaction is
not unusual, and the U.S. government has lost many fine employees
strictly because of false polygraph results.
Question 3: Will there be adverse consequences for employees who
refuse to take a polygraph examination?
Answer: Again, this can differ from agency to agency. However, most
agencies will react in a similar manner. For example, the FBI
Memorandum referred to above states that those employees who refuse to
take the test will be subjected to administrative actions which may
include transfer, a finding of insubordination and disciplinary action
or a reevaluation of the employee's security clearance.
Question 5: FBI regulations prohibit the use of the polygraph as a
``substitute for logical investigation by conventional means'' (FBI
Poly. Reg: 13-22.299(2)). Does this mean that, if all other factors are
in order, the failure of a polygraph examination in the context of a
national security update will not necessarily result in an adverse
action?
Answer: Again, by viewing this question solely by the legal
definition of ``adverse action'' (such as those actions that can be
appealed to the Merit Systems Protection Board, 5 U.S.C. Sec. 1201.3),
the conclusion would be accurate. However, as I described above,
reality dictates otherwise. For all intents and purposes, the employee
does suffer ``adverse consequences'', though it might not legally be in
the form of an ``adverse action''.
This question, however, does raise a larger issue. If such a
prohibition exists with respect to employees, why should applicants
receive any less consideration? How ``logical'' is that? There is no
question that FBI applicants who have received a conditional offer of
employment, but who then fail their polygraph examination (or register
inconclusive) are not afforded the opportunity of a background
investigation. Their job offer is immediately rescinded. More than
that, the polygraph result is maintained in that individual's personnel
file, and will be freely disseminated as permitted by law. One
polygraph examination may stigmatize an individual throughout the
federal government thereby precluding their future employment and
contribution to the United States.
There is something inherently wrong and unfair with the current
federal polygraph policies that are implemented throughout the
different law enforcement and intelligence agencies of our government.
Without intervention by this Committee, there is little chance these
policies will ever change.
I trust this additional information proves to be useful. I would be
happy to elaborate further upon any question, or respond to additional
inquiries.
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