My understanding is that most DOD polygraphs are of the Test for Espionage and Sabotage variety.  My question is this; Do DOD Law Enforcement Agencies (CID, OSI, NCIS) use the TES format for prescreening applicants or do they use the more invasive polygraphs used by other federal law enforcement agencies, or CIA, or NSA?

Anonymous,

I don't know the answer to your question, and don't presently have the time to research the topic, but you might start by consulting DoD Directive 5210.48, Department of Defense Polygraph Program, and Army  Regulation 195-6, Department of the Army Polygraph Activities (1.5 mb scanned PDF).

Anonymous,

No offense taken. I don't profess to be a "guru" or to have any special authority on polygraph matters. Nor is The Lie Behind the Lie Detector a particularly "holistic" book. What Gino Scalabrini and I have written is based on our research and analysis, and we provide references that the reader can check.

The scope of any polygraph examinations required of applicants for DoD law enforcement agencies is indeed of interest; it's simply a matter I haven't researched in the past (and don't at the moment have the time to look into). While I suspect that the scope of such polygraph examinations would be broader than the TES, and also include questions about illegal drug use and other crimes, I don't know that to be the case. If you discover any information on this topic, I hope you'll consider sharing it here.

With regard to unequal treatment of civilian versus military personnel by DoD, what kinds of things are you referring to?

From the above cited sources:

4.4. No relevant question may be asked during the polygraph examination that has not been reviewed with the examinee before the examination. Moreover, all questions asked concerning the matter at issue, other than technical questions necessary to the polygraph technique, must have a special relevance to the subject of the inquiry. The probing of a person's thoughts or beliefs and questions about conduct that has no security implication or is not directly relevant to an investigation are prohibited (such as religious beliefs and affiliations, beliefs and opinions regarding racial matters, and political beliefs and affiliations of a lawful nature).

It would seem to me that regardless of the type of polygraph exam, having a thorough understanding of how polygraphs work, an understand of and an ease with countermeasures, as well as knowledge beforehand of all relevant questions to be posed would make passing a simple thing.

Anonymous,

Thanks for sharing the above thoughts. I was especially interested in 18 USC 1001, which you mentioned. I hadn't heard of it before, but found and read the following article about this law:

http://profs.lp.findlaw.com/collar/collar_8.html

At first glance, it appears that you are correct, and that to employ countermeasures but falsely deny it would constitute a violation of 18 USC 1001. (It is doubtful, though, that a federal prosecutor would be able to prove beyond a reasonable doubt that a violation had occurred, absent an admission or confession.)

A case might just as well be made against, say, all FBI applicants, employees, suspects, and witnesses who pass a probable-lie "control" question "test." They are all assumed by the Bureau to have been less than truthful with regard to their responses to the probable-lie "control" questions. However, any such lies might not be considered "material" within the meaning of 18 USC 1001.

Personally, I think the use of countermeasures by truthful persons is ethically justified under the circumstances: in relying on polygraph screening, the U.S. Government is committing a fraud against all "tested." However, the "complete honesty" alternative we suggest in Chapter 4 of The Lie Behind the Lie Detector (with the concomitant risk of retaliation) is also available.

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There are two problems with the above reasoning, as I see it.

The first is that polygraph screening is inherently designed as a legal catch-22.  It is fully expected that subjects will lie on the polygraph -- in fact, it is theoretically necessary (according to polygraph theory, anyway) that one violate the above statute in order to pass the polygraph.  And if one knows how the polygraph works (knowledge that's not hard to come by, there days), one generally must lie about countermeasures knowledge in order to pass the polygraph.

The second is that I believe this is a case wherein there is a disconnect between the law and what is right.  I believe the evidence supports the notion that the polygraph is detrimental to national security, both because it allows dishonest people through and because it disqualifies honest, loyal and qualified applicants from which national security interests would benefit immeasurably.  Thus, while it may be true that lying about countermeasures technically violates the law, the polygraph screening process itself is ethically berift and, for that matter, violates the spirit of the Constitution, which is arguably the highest law in the land.

I believe the second point is consistent with Mr. Mallah's "civil disobedience" notion, above.

Skeptic

Dear friends,

To further cover the point about Title 18 USC 1001 let me state this, you may call it civil disobedience or whatever you like, but this is a binding law that has teeth. If you fill out the SF-86 (form for national security positions), have an interview as part of your background check, or yes, undergo a federal preemployment polygraph, you are not only subject to Title 18, but you are also adviced to the fact that you are Subject to it.

If you think this is a law that is just taken lightly, I just ask you to consider the Forest Service employee involved in starting all the fires in Colorado... The first thing she was charged with was a violation of Title 18 for turning in a false report.  This offense is punishable by up to a $10,000 fine and five years in prison.

Secondly, and more pertinent to the question of whether one should lie or not on the polygraph or any other part of an investigation  is Guideline E of the Adjudicative Guidelines used by agencies throughout the federal government: 
http://www.fas.org/sgp/spb/class.htm

If you notice, this guideline is the only guideline that may require disqualification of an individual seeking a security clearance.  Take it from me gents, the government does not kid around when it comes to falsification issues.  If fact, if you read any appeal decisions concerning denied clearances you will often find that individuals were denied clearances simply because they had lied about information, that in of itself, would have not disqualified them.

Again, I want to stress that I hate polygraphs and I do think, that because of how they're being abused, they should be banned. I do however disagree with some of the things said on this website, like in every aspect of life, the truth can be found somewhere between the middle of the two opposing opinions:

1.  The point that polygraphers expect you to LIE to control questions is not necessary true.  The only expectation is that you have a significant response to these questions.  For example, if a question such as: Have you ever lied to anyone you love, is asked, the idea is that even after you admit all the times you remember having to a loved one, you will still be nervous about the question and therefore have a significant response. A polygrapher would definitely expect you to admit to any serious lie, i.e. having been involved in a crime, adultery, etc.

2.  I do believe polygraphs detect deception and so do you!  The fact is polygraphs detect bodily reactions and Lying does cause the body to react.  Even countermeasures prove this point... The countermeasures advocated on this site suggest one produce a more significant response to control questions in order to minimize the significance of any reaction to revelant question. The problem with the polygraph is the LYING is not the only thing that can cause significant responses.  I would have no problem with the polygraph if they were really used how they are supposed to be used - as an investigative aid to direct investigations. Unfortunately, many agencies put too much faith in the polygraph and many people end up getting hurt.

3.  We as Americans have the right to disagree with, protest, and attempt to change laws, but we should not merely decide to ignore laws when they don't conform to our agendas.

4. I think that the endless argument over the validity of the polygraph is a lost cause.  Unfortunately for us, the general public is under the misconception that polygraphs are infalliable and no politician, especially after Sep 11, would in his right mind advocate the end of polygraphs in security investigations base on their validity.  As I've stated before, we must turn to fight to an argument about: 1. How the government selectively uses polygraphs... i.e. us scrubs on the bottom of the barrel are required to undergo polygraphs, but politicians and powerful government officials are not. 2. We have to promote studies to show that polygraphs have not diminished the number of incidents of misconduct in the government. 3. We have to demand that if polygraphs are to be used, which they will be, they should only be used as a tool and not as an executioner.

Anonymous,

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I think the polygraph community's term of art "probable-lie control question" adequately summarizes how polygraphers expect subjects to reply to these questions.

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No, I don't believe that polygraphs detect deception. They record relative changes in certain bodily functions on the basis of which polygraphers make inferences about a subject's truthfulness or deceptiveness. And as Skeptic correctly observed, lying may or may not cause one's body to react in ways that are measurable by the polygraph.

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As a practical matter, whether to observe or ignore laws is a decision that most of us make daily. For example, shall you observe the speed limit of 55 m.p.h. or go with the flow of traffic that's zipping along at 70? Or will you go out of your way to pay the sales tax you legally owe to your state government on an item that you purchased from another state (by mail or over the Internet), and on which you did not pay out-of-state sales tax?

With regard to the otherwise truthful person who employs countermeasures during an employment-related polygraph interrogation, but falsely denies having employed countermeasures, or having researched polygraphy, I believe there is no ethical violation. There's a legal maxim fraus meritur fraudem (fraud merits fraud). In the case of polygraph screening, the fraud being perpetrated by the state merits the citizen's use of deception to protect himself against that fraud. As English playwright Henry Chettle wrote, "'Tis no deceit to deceive the deceiver."

In my opinion, any violation of 18 USC 1001 in such circumstances would be at worst a malum prohibitum (defined by Black's Law Dictionary as "...a thing which is wrong because it is prohibited; an act which is not inherently immoral, but becomes so because its commission is expressly forbidden by positive law...") and not a malum in se ("[a] wrong in itself; an act or case involving illegality from the very nature of the transaction, upon principles of natural, moral, and public law...").

In any event, for the otherwise truthful person who falsely denies knowledge of and/or having used countermeasures, the risk is negligible that:

1) Any federal agency would make a criminal referral under 18 USC 1001 based on a polygrapher's suspicions that a subject had lied about knowledge and/or use of countermeasures;

2) Any federal prosecutor would bring an indictment based on such suspicions.

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I disagree with your supposition that the general public is under the misconception that polygraphs are infallible. Most Americans seem to believe that polygraphy is an admittedly fallible but nonetheless science-based methodology. This misconception can and must be corrected. We're working toward that end, and are having some success in reaching those most directly affected by governmental reliance on polygraphy. When enough employees and applicants who are subject to polygraph screening become aware that the "test" is a fraud, the polygraph house of cards will collapse.

As you may be aware, the National Academy of Sciences (NAS) is conducting a review of the scientific evidence on the polygraph. The public meetings held by the polygraph review committee were well attended by senior members of the federal polygraph community. Their trepidation over the committee's ultimate conclusions and policy recommendations was quite apparent. (At the public meeting held on 23 July 2001, Dr. Andrew J. Ryan, chief of research at DoDPI, made what was essentially an appeal for clemency.) The NAS report is due later this summer, and I anticipate that it will give quite a boost to the antipolygraph effort.

With regard to politicians in their right minds not advocating the end of polygraphs in security investigations post 9-11, note that the Philadelphia Police Department abolished polygraph screening for applicants in May of this year. Nonetheless, I agree with you that post 9-11 exigencies make it politically difficult for decision makers to take a public stance against polygraph screening. The alternative arguments against polygraphy that you propose all have merit, and you'll find them reflected in Chapter 2 of The Lie Behind the Lie Detector (on polygraph policy). But the key argument that polygraphy is a pseudoscientific fraud is a compelling one that we will continue to vociferously put forth.