Continue reading ‘Enduring Freedom? ISAF Deletes Criticism of U.S. Government’s Handheld Lie Detector’ »]]> On Tuesday, 14 May 2013, NATO’s International Security Assistance Force (ISAF) in Afghanistan posted to its Facebook page a story about a program whereby U.S. forces in Afghanistan have been training Afghans in the use of a handheld “lie detector,” the Preliminary Credibility Assessment Screening System (PCASS)  developed by the National Center for Credibility Assessment at Ft. Jackson, South Carolina:

As you see above, AntiPolygraph.org co-founder George Maschke posted two comments and relevant links regarding PCASS that same day. By the following day, ISAF had deleted those comments:

The deleted comments included a link to the AntiPolygraph.org message board post, “How to Beat the Preliminary Credibility Assessment Screening System (PCASS)” and to the YouTube video post, Warning to U.S. Troops on Hand-held Lie Detector:

Why did ISAF delete these comments? ISAF’s Facebook page provides the following commenting guidelines:

Nothing in the deleted comments included profanity, sexual content, hate speech or commercial, overly graphic, disturbing, abusive or offensive material, or was off-topic. ISAF’s censorship of critical commentary bespeaks an authoritarian mindset inconsistent with the “freedom” that NATO purports to be bringing to Afghanistan.

Continue reading ‘CIA Director Brennan Allegedly Threatened CIA Employees With Polygraphs on Benghazi’ »]]>

Greta van Susteren with Sen. Lindsey Graham, 6 May 2013

On 6 May 2013, Greta van Susteren told U.S. Senator Lindsey Graham (R-SC) that Fox News has information that CIA Director John Brennan has threatened Agency employees who might provide information to Congress regarding the 11 September 2012 raid on the U.S. Consulate in Benghazi, Libya with polygraphs. Sen. Graham said he had heard the same thing:

Van Susteren: We have information that people from the CIA want to come out and testify, but they’ve been told by the CIA director, Brennan, specifically they will be polygraphed if they are tied to this. Do you have any information to corroborate that?

Graham: I’ve heard that same story. I know there’s some CIA agents reaching out. They feel frustrated….

The exchange occurs about two minutes into the segment, which may be viewed on-line here. It should be noted that polygraph “testing” has no scientific basis, and polygraph operators can manipulate outcomes to satisfy the wishes of management.

Also with regard to Benghazi and polygraphs, on 3 April 2013, former CIA and State Department employee Larry C. Johnson reported on his No Quarter blog in a post titled The CIA Playing Hardball on Benghazi:

When I first heard of this from a friend who had first hand knowledge, I was still skeptical. What did I hear? The CIA is conducting weekly polygraphs of officers who work in paramilitary activities (I knew it as Special Activities Division back in my day) and were involved in supporting the operations at Benghazi, Libya last September. So, I asked another friend to run his traps. He reported the same plus that the Intelligence Officers are being pressured to sign an additional Non-Disclosure form.

AntiPolygraph.org welcomes any information readers may be able to provide regarding the use or threat of polygraphs to deter whistleblowing.

Continue reading ‘Customs and Border Protection Internal Affairs Subject of Scathing DHS Privacy Report’ »]]>

James F. Tomsheck

AntiPolygraph.org has received a previously unpublished report of investigation (934 kb PDF) by the U.S. Department of Homeland Security Privacy Office into an information-sharing program operated by the U.S. Customs and Border Protection Office of Internal Affairs (CBP IA), headed by CBP Assistant Commissioner James F. Tomsheck.¹

The report, by DHS Chief Privacy Officer Mary Ellen Callahan, is dated 18 July 2012 and documents gross violations of DHS privacy policy by Tomsheck in connection with a pilot program whereby CBP IA shared personal information on CBP employees with the FBI. The project “came to be known as the SAR Exploitation Initiative Pilot (SAREX Pilot or Pilot).”²

The ostensible purpose of this project was for CBP IA to “enhance CBP IA’s Background Investigation (BI)/Periodic Review (PR) process by leveraging the FBI’s supposed ability to conduct federated searches of law enforcement databases.” CBP IA provided personal information on over 3,000 employees to the FBI, but received, “informally,” from the FBI information on only 9 or 10 individuals.³

Callahan’s investigation “revealed a lack of oversight by CBP IA leadership to ensure that DHS policies governing the sharing of [personally identifiable information] were adhered to in conducting” the information sharing pilot program” and “found an apparent blatant disregard for concerns raised by the [Office of Inspector General] and CBP IA staff who questioned the legal authority for, and privacy implications of, the Pilot.”

Callahan also notes, among other things:

…During my meeting with the Assistant Commissioner [James F. Tomsheck] on April 26, 2012, the Assistant Commissioner seemed to believe that CBP IA’s mission exempts it from following applicable privacy law and DHS privacy policy. I believe this attitude is likely to result in a culture of non-compliance in CBP IA. On May 10, 2012, the Assistant Commissioner told me that CBP IA is already engaging in such activities outside the Pilot. It is critical, therefore, that steps be taken now to ensure that any current or future sharing of PII by CBP IA complies with applicable law and DHS policy, and that CBP counsel and the CBP Privacy Officer are consulted prior to implementation of any such projects….

AntiPolygraph.org invites commentary.

1. Tomsheck’s office appears to be the lead agency in Operation Lie Busters, a criminal investigation evidently targeting the teaching of polygraph countermeasures.
2. The acronym “SAR” is not defined in the report.
3. The CBP polygraph unit’s summary of significant admissions obtained during polygraph examinations, which reveals the existence of Operation Lie Busters, mentions that “ten applicants for law enforcement positions within CBP were identified as receiving sophisticated polygraph Countermeasure training in an effort to defeat the polygraph requirement.” It is not clear whether these might be the individuals on whom the FBI informally provided information.

Continue reading ‘Mexican Security Officials Balk at Being Polygraphed by American Counterparts, Ask: “So Do We Get to Polygraph You?”’ »]]> The New York Times reports that Mexican security officials, who had previously been subjected to polygraph screening by U.S. polygraph operators, have declined to do so since the inauguration of Mexican president Enrique Peña Nieto on 1 December 2012. Excerpt:

MEXICO CITY — In their joint fight against drug traffickers, the United States and Mexico have forged an unusually close relationship in recent years, with the Americans regularly conducting polygraph tests on elite Mexican security officials to root out anyone who had been corrupted.

But shortly after Mexico’s new president, Enrique Peña Nieto, took office in December, American agents got a clear message that the dynamics, with Washington holding the clear upper hand, were about to change.

“So do we get to polygraph you?” one incoming Mexican official asked his American counterparts, alarming United States security officials who consider the vetting of the Mexicans central to tracking down drug kingpins. The Mexican government briefly stopped its vetted officials from cooperating in sensitive investigations. The Americans are waiting to see if Mexico allows polygraphs when assigning new members to units, a senior Obama administration official said.

If U.S. security officials truly believe in polygraphy (and their own honesty), why would they object to being polygraphed by their Mexican counterparts?

With respect to polygraph “testing” in Mexico, a 2009 U.S. State Department cable released by Wikileaks documents that the United States has been instrumental in promoting the practice of polygraph screening in that country. In fiscal year 2008, $5 million was appropriated to support a “bilateral working group” on polygraphy, and an additional $6 million was earmarked for fiscal year 2009.

But the notion that polygraph screening can root out corruption is dubious. For starters, polygraphy has no scientific basis. Making matters worse, polygraph techniques have an inherent bias against the most honest and conscientious of persons.¹ Ironically, polygraph screening is likely to screen out the straight arrows that are needed to create a more honest workforce. And on the other hand, deceptive persons can pass the polygraph using simple countermeasures that polygraphers cannot detect.

1. This is because the more candidly one answers the so-called “control” questions, and as a consequence exhibits less anxiety when answering them, the more likely one is to fail.

Continue reading ‘Maryland Corrections Resorts to Mandatory Polygraphs in Wake of Corruption Investigation’ »]]>

Gary D. Maynard

Carrie Wells reports for the Baltimore Sun that on Friday, 26 April 2013, Maryland Secretary of Public Safety & Correctional Services Gary D. Maynard ordered that three senior administrators at the Baltimore City Detention Center submit to polygraph interrogations, and that more polygraphs may follow. Excerpt:

Polygraph tests for three top officials at the Baltimore City Detention Center began Sunday, in an effort to determine the extent of the corruption federal investigators allege plagued the jail.

Rick Binetti, a spokesman for the Maryland Department of Public Safety and Correctional Services, declined to comment Sunday on the outcome of the polygraph tests for interim jail administrator Ricky Foxwell and two deputy administrators. The corrections department’s internal affairs unit and Maryland State Police investigators administered the polygraphs, and the information gleaned from them could factor into potential disciplinary actions or the decision to prosecute.

On Friday, state corrections secretary Gary D. Maynard ordered the polygraphs for the three administrators, as well as “integrity reviews” for all employees of the city jail. Corrections officials say more employees could be administered polygraphs.

Maynard said he could also use the polygraphs to investigate possible corruption in other state corrections facilities, saying the tests could clear the names of good employees while identifying the bad.

The notion that polygraphs can be relied on to “clear good employees while identifying the bad” is a dangerous delusion. Polygraphic lie detection has no scientific basis. Honest persons frequently fail, while liars can pass the polygraph using simple countermeasures that polygraph operators have no ability to detect.

Adam May reports for CBS Baltimore about concern that the mandatory polygraphs will become a “witch hunt.” Excerpt:

BALTIMORE (WJZ) — Sex, drugs and money. The corruption probe at the Baltimore City Detention Center expands.

Adam May explains–starting Sunday night, some officers still on the job are being forced to take lie detector tests.

For the last few years, inmate Tavon White claimed he ran the Baltimore Detention Center–dealing drugs, impregnating guards and making thousands of dollars a month.

Federal investigators say he had help from at least 25 people, including 13 female corrections officers. They face charges of racketeering, money laundering and drug possession and distribution.

Now–the net widens–and additional officers at the jail will be forced to take polygraph tests.

“I hope they don’t use this thing as a witch hunt,” said Archer Blackwell, AFSCME.

Union reps say many officers are ashamed of the allegations.

“There are a lot of good officers there–and obviously this group, they fell into this situation–don’t represent officers in the system at all,” said Blackwell.

Archer Blackwell’s concerns about the polygraph being used as a witch hunt are well-founded. Indeed, the late U.S. Senator Sam Ervin characterized polygraphy as “20th century witchcraft.” If Gary Maynard truly believes that polygraph chart readings can be relied on to clear or implicate employees, then he should be sacked and replaced by someone more competent.

Continue reading ‘Accused Cuban Agent Marta Rita Velázquez Allegedly Sought Polygraph Training from Cuban Intelligence Service’ »]]>

The Princeton Alumni Weekly identifies the woman on the right as Marta Rita Velázquez (class of 1979) at an anti-apartheid demonstration in 1977.

On 25 April 2013, the U.S. Department of Justice revealed the existence of a previously sealed indictment (455 kb PDF) against former U.S. Agency for International Development employee Marta Rita Velázquez, who is charged with a single count of conspiracy to commit espionage. The indictment alleges that it was Velázquez who recruited Ana Belen Montes, the Defense Intelligence Agency’s senior Cuba analyst who in 2002 pled guilty to spying for Cuba. The indictment was secretly issued on 5 February 2004, and an arrest warrant was issued the following day. According to Jim Popkin of the Washington Post, Velázquez lives in Sweden, whose extradition treaty with the United States “does not allow extradition for spying.”

The indictment recounts details of an alleged trip to Cuba that Velázquez and Montes made together in 1985 to received training from the Cuban Intelligence Service, including the following item:

(19) In or about early April 1985, while clandestinely in Cuba, defendant VELÁZQUEZ, with Montes, asked the Cuban Intelligence Service to give them “practice” polygraphs so that they would be able to pass polygraphs they might have to take in connection with future United States government employment.

The indictment provides no further details regarding any polygraph instruction received, but a recent Washington Post magazine feature article (also by Jim Popkin) about Ana Belen Montes indicates that such training was indeed provided:

Her tradecraft was classic. In Havana, agents with the Cuban intelligence service taught Montes how to slip packages to agents innocuously, how to communicate safely in code and how to disappear if needed. They even taught Montes how to fake her way through a polygraph test. She later told investigators it involves the strategic tensing of the sphincter muscles. It’s unknown if the ploy worked, but Montes did pass a DIA-administered polygraph in 1994, after a decade of spying.

For discussion of the Montes case, see Source: Cuban Spy Ana Belen Montes Passed DIA Polygraph on the AntiPolygraph.org message board.

Continue reading ‘Cuban Spy Nicolás Sirgado Passed CIA Polygraph Three Times’ »]]>

Cuban Interior Ministry Officer Nicolas Sirgado (1935-2013)

On 17 April 2013, Cuban intelligence officer Nicolás Alberto Sirgado Ros¹ died at the age of 77 years according to a short notice published on 19 April by Granma, the official newspaper of the Cuban Communist Party. Cuban website CubaDebate published a lengthier profile of Sirgado, noting that he worked as a double agent for Cuba against the CIA for ten years beginning in 1966. Miami-based website CafeFuerte also profiles Sirgado, adding that “on three occasions, he was subjected to lie detector testing, without his real mission being discovered.”

Sirgado discussed his experience working against the CIA in an interview transcribed in a document titled “CIA: Cuba Accuses” that was published in English in Cuba in 1978. When asked “Did they ever use a lie detector on you?” Sirgado replied:

Yes, they used a lot of security measures. They used the lie detector three times. Sometimes there were lie detector sessions that were more than two and a half hours long.

Clearly, the CIA’s aim in using this method is not so much to find out whether or not you’re lying as to break you down, humiliate you, impose machine over mind.  Whether or not it’s effective, the method really seeks to humiliate and denigrate.  It’s a reflection of this espionage organization, built upon mistrust and of the lack of moral values to support its activities.

Sirgado is not the only Cuban double agent to fool the polygraph. DIA officer Ana Belen Montes passed the polygraph at least once while spying for Cuba. And former CIA officer Robert David Steele writes, “Two of my classmates got wrapped up in Cuba (and appeared on international television) because the Cuban double-agents all managed to pass the polygraph.”

Make-believe science yields make-believe security.

1. The Granma article provides “Ross” as his maternal family name, but this appears to be a clerical error.

Continue reading ‘Vice President of Polygraph Manufacturer Limestone Technologies Charged with Sexual Assault’ »]]>  

Limestone Technologies Vice President
Tyler Buttle at his arraignment

Limestone Technologies vice president Tyler Buttle faces a 5 June 2013 pre-trial hearing on charges of assaulting with intent to rape a woman he met at a conference on sexual abuse. The conference, held 10-12 April 2013 in Marlborough, Massachusetts and co-hosted by the Massachusetts Adolescent Sex Offender Coalition and the Massachusetts Association for the Treatment of Sexual Abusers, was titled, “Preventing Sexual Violence Through Assessment, Treatment and Safe Management.”

According to CBS Boston, Buttle , who is married with one child, paid to attend the conference in order to sell equipment for Limestone. CBS describes the alleged assault thus:

Prosecutors say he met the woman while attending a conference on Thursday at the Best Western Royal Plaza in Marlborough.

According to the police report, the woman “obtained a ride” with Buttle later that night.

Prosecutor Julianne Richard says Buttle drove the woman from the Westender bar in Marlborough to a remote parking lot near the Pheasant Hill Community in Northborough, where he assaulted her.

Police say he reached under her dress, and touched her buttocks.

“The victim attempted to run away from the suspect, however the suspect ran after the victim, (led) her back to his vehicle, and assaulted her again,” the police report stated.

Investigators say the woman escaped a second time, ran off, hid in some bushes, and eventually knocked on the door of a home on Main Street around 2 a.m. in the rain.

The homeowner called 911 and police tracked down Buttle back at the Best Western, where he was staying.

A report by Matt Stout of the Boston Herald adds that according to Northboro Detective Sergeant Brian Griffin, the victim knocked at the homeowner’s door “soaking wet and barefoot.” A report by Sam Bonacci and Charlene Arsenault of  website MarlboroughPatch adds, “[B]uttle crashed his truck after leaving the scene of the assault, but the vehicle was drivable, with only minor damage to property on Main Street in Northborough, said police.”

Buttle, of Inverary, Ontario is free on $5,000 bail. According to MarlboroughPatch, the specific charges he faces are indecent assault and battery and assault with intent to rape.

Limestone Technologies of Odessa, Ontario, Canada is one of four major polygraph instrument manufacturers in North America. On his Linkedin profile, Buttle describes his responsibilities at Limestone thus:

Buttle also lists himself as a member of the American Polygraph Association and the American Association of Police Polygraphists.

Update: Tyler Buttle is not the first member of the polygraph community to face allegations of misconduct of a sexual nature:

• RCMP polygrapher Donald Ray “was suspended for 10 days without pay, given a formal reprimand, and demoted one rank from staff sergeant” after an internal investigation sparked by an anonymous tip in 2009. Among other things, Ray reportedly exposed himself to a female subordinate and asked her to touch his penis;
• In 2007, Australian polygrapher Charles Rahim was caught in a hidden camera investigation asking examinees non-pertinent questions about the most intimate details of their sexual behavior;
• In 2010, polygraph operator Ronald P. Bae of Cottonwood, Alabama was indicted for felony sexual abuse;
• In 2011, polygraph examiner William McCallister of Lake Wales, Florida was arrested for sexual assault, and in 2012 he was again arrested and charged with 31 counts of possession of child pornography;
• In 1999, Eric J. Holden of Texas, a past president of the American Polygraph Association, was prohibited from serving as an instructor at the Texas Department of Public Safety Polygraph School after a sexual harassment complaint against him was sustained.

Continue reading ‘Discredited Lawyer Promotes Discredited Lie Test’ »]]>

F. Lee Bailey

Disbarred criminal defense lawyer F. Lee Bailey will be the keynote speaker at a seminar jointly presented by the American Polygraph Association and the Maine Polygraph Association next Wednesday to Friday, 24-26 April 2013 in Saco, Maine. The stated purpose of the seminar is “to educate lawyers, investigators, therapists, probation and governmental officers and members of the judiciary on the current state of polygraph – often referred to by the misnomer ‘Lie Detector’ – usage in the United States.” Such individuals will be required to pay $250 for the privilege. It is perhaps fitting that a crooked lawyer would be selected as keynote speaker by practitioners of a crooked profession: polygraphy depends on the operator lying to and otherwise deceiving the person being “tested,” and the American Polygraph Association doesn’t think it’s an ethical problem that one of their past presidents, Ed Gelb, falsely passed himself off as a Ph.D. in marketing his polygraph services. Incidentally, Gelb and Bailey collaborated in a television show called “Lie Detector” (which Bailey avers is a misnomer) that aired from 1982-83.

Bailey, a life member of the American Polygraph Association, was disbarred by the Supreme Court of Florida on 21 November 2001 for “multiple counts of egregious misconduct, including offering false testimony, engaging in ex parte communications, violating a client’s confidences, violating two federal court orders, and trust account violations, including commingling and misappropriation.” On 30 November 2012, the Maine Board of Bar Examiners rejected Bailey’s application for admission.

A report by Seth Koenig of the Bangor Daily News indicates that the purpose of this conference is not merely to “educate” individuals about the current usage of polygraphy in the United States but to advocate its expansion:

In Portland on Wednesday, Bailey said the polygraph test — often called a “lie detector test,” although he said the term is inaccurate — is “woefully” underutilized in Maine.

“This very simple, and not very expensive, technique can save Maine law enforcement officials a lot of grief,” Bailey told reporters. “The police spend a lot of time interviewing liars and chasing false suspects.”

During criminal investigations, polygraph testing can be used often, not necessarily to pinpoint the guilty party, but to rule out suspects and clear clutter in the case, he said. Bailey said that while individuals who “show deception” on a polygraph test cannot be determined definitively to be lying — partial truths, among other responses, could set off the device without being outright false, he said — the test “can help prove when somebody is telling the truth.”

“If you get a [‘no deception indicated’ response], you should be off the list [of suspects for a crime],” he said. “If you don’t, we would just ask you some more questions.”

The notion that a suspected criminal who passes a polygraph can be cleared is a dangerous delusion. Polygraphy has no scientific basis and any reliance upon it is liable to misdirect investigations, as happened in the case of Green River Killer Gary Leon Ridgway, who passed a polygraph “test” and killed again…and again. Moreover, polygraphy is vulnerable to simple, effective countermeasures that polygraph operators cannot detect. These are documented in Chapter 4 of AntiPolygraph.org’s free book, The Lie Behind the Lie Detector (1 mb PDF).

Bailey also advocates releasing half of Maine’s prison population and placing them under “polygraph supervision”:

Bailey also said extensive and regular polygraph usage in Maine would cut down dramatically on the recidivism in Maine prisons.

“We’ve got a lot of people in the state of Maine’s prisons who don’t need to be there,” he said. “We can control them without supporting them [financially]. … There’s no earthly reason why this type of polygraph supervision would not work in Maine.”

Bailey said the threat of regular polygraph tests has been shown to reduce repeat offenses. In states where the tests are used to regularly interview sex offenders after release, he said, repeat offense rates dropped from as high as 70 percent to as low as 19 percent.

According to seminar coordinator Mark Teceno, the Maine Legislature in 2004 passed a law requiring polygraph testing to be part of the post-release treatment for sex offenders in the state. But Teceno said the testing is still not frequent or regular enough, and he added the measure should be expanded for use with individuals convicted of other crimes, as well.

Bailey said he believes those steps would cut Maine’s general inmate population from about 2,000 people to about 1,000 — with the difference from inmates released early under “polygraph supervision” and those who are deterred from committing repeat offenses because of the testing.

“If I’m right, I’d be willing to go on every single one of your stations and say, ‘Nyah, nyah, na-nyah, nyah,’” he said. “If I have to eat crow, well, I’ve got a strong stomach.”

Again, owing to polygraphy’s lack of scientific underpinnings and vulnerability to easily-learned countermeasures, Bailey’s proposal would undermine public safety. To our knowledge, Bailey’s claim that post-conviction sex offender polygraph programs have reduced recidivism rates from 70 to 19 percent is unfounded. With respect to post-conviction polygraph screening, see criminology professor Jeffrey W. Rosky’s talk, “Examining Post-Conviction Polygraph Testing”:

David T. Lykken (1928-2006)

One might also surmise that Bailey will advocate, as he has in the past, admission of polygraph “evidence” in criminal trials. The late David T. Lykken addressed this question in his seminal work on polygraphy, A Tremor in the Blood: Uses and Abuses of the Lie Detector¹:

Suppose instead that the courts accede to F. Lee Bailey’s proposal and permit the defense to offer lie test evidence over the objection of the prosecution. The humane intention here would be to compensate for the greater resources available to the state by giving the defendant this opportunity to prove his innocence. We must now imagine every defendant shopping for a friendly polygrapher in the hope of achieving a “pass” that could be offered into evidence–and that no defendants would offer testimony of a failed test. That is, we are now talking about criminal defendants against whom the evidence is strong enough for the prosecution to bring them to trial, rather than the subgroup against whom the prosecution’s evidence is weak. If we assume that 80 out of each 100 criminal defendants brought to trial are in fact guilty (most officers of the court would probably set the figure higher), then about 12 of the guilties and 12 of the innocents should present evidence of passed lie tests, evidence that will be wrong 50% of the time.² This unhappy result is based on the assumption that lie tests given privately to Mr. Bailey’s clients are as accurate in detecting lying as those given under adversarial conditions. We shall see in the next section that these “friendly” polygraph tests are in fact more likely to be passed by guilty defendants. This chance level of errors also assumes that none of the guilty defendants who can afford defense attorneys in Mr. Bailey’s class will have learned–in Chapter 19 of this book or in diverse other ways–how to beat the lie detector even though guilty. Because both assumptions are so dubious, it is likely that admission of exculpatory polygraph test results into evidence at trial will have a probative value that is negative.

Rather than pay $250 to be educated by the likes of F. Lee Bailey, lawyers, investigators, therapists, probation and governmental officers and members of the judiciary would be better off picking up a copy of Lykken’s A Tremor in the Blood. It’s available on Amazon.com or at any good research library.

1. 2nd ed. 1998. Plenum Trade, at p. 258.
2. Based on field studies, Lykken is assuming here that 85% of guilty and 40% of innocent suspects will fail the polygraph.

Continue reading ‘U.S. Customs and Border Protection Allegedly Targets Reservists/Guardsmen with Polygraphs’ »]]> In a class action appeal filed with the Merit Systems Protection Board, four military reserve officers allege that U.S. Customs and Border Protection (CBP) has engaged in a “continuous” and “wide-ranging pattern of harassment” against members of the U.S. Armed Services and National Guard, including targeting them with pre-employment polygraph screening, in violation of the Uniformed Services Employment and Reemployment Rights Act (38 U.S.C. § 4301 et seq.). The case is Ferguson, et al. v. Department of Homeland Security, et al., filed 15 February 2013.

One of the appellants, Jason Dutcher, was a lieutenant commander in the U.S. Navy Reserve when in June 2010 he applied for employment with CBP’s Office of Air and Marine. His application was rejected “ostensibly because he failed a polygraph examination.”

With regard to CBP’s pre-employment polygraph polygraph practices, the appeal alleges:

78.    On information and belief, Appellant Dutcher and members of the Applicant Subclass were denied initial employment based on their membership in the United States Armed Services or National Guard.

79.    On information and belief, and thereon alleged, polygraph examinations are or were administered to applicants with military service obligations at an unreasonably higher and inexplicably rate [sic] than to those applicants without military service obligations.

80.    On information and belief, and thereon alleged, applicants with military service obligations fail the polygraph examinations at an unreasonably and inexplicably higher rate than do those applicants without military service obligations.

81.    The Class’ obligations and membership in the uniformed services was and is a motivating factor in all discriminatory, harassing and hostile actions Appellees have taken against the Appellants.

The class that Dutcher seeks to represent includes “all those individuals who applied for employment at DHS, CBP and/or OAM between January 1, 1994 and the present who were not hired due to their military service obligations” (para. 101).

The appellants’ allegations also include:

129. Upon information and belief, Appellees have repeatedly made comments to members of the Applicant Subclass during the application process indicating that the applicant’s affiliation with the military made it difficult for Appellees to hire the applicant because the individual may have future military commitments.

130. Upon information and belief, Appellees have repeatedly refused to hire members of the Applicant Subclass because they may have future military obligations.

131. Upon information and belief, Appellees administer polygraph tests during the application process randomly, arbitrarily and at an unreasonably higher rate to members of the Applicant Subclass than to applicants with no military service affiliation.

132. Upon information and belief, an unreasonably and inexplicably higher percentage of applicants with military service affiliations fail the polygraph tests than do applicants with no military service affiliation.

133. USERRA requires employers to treat all applicants for employment similarly regardless of their military service affiliation and obligations.

134. By repeatedly discriminating against Appellant Dutcher and the Applicant Subclass through their refusal to hire members of the Applicant Subclass, Appellees have violated §4311 of USERRA.

135. Appellant’ Dutcher’s and the Applicant Subclass’ service obligations were a motivating factor in the discriminatory actions Appellees have taken against Appellant and the Applicant Subclass.