For further reading about Mark Mallah's polygraph experience, see his statement on the AntiPolygraph.org Personal Statements page.
July 25, 2001
Senator Joseph Biden
Senator Sam Brownback
Senator Maria Cantwell
Senator Mike DeWine
Senator Richard Durbin
Senator John Edwards
Senator Russell Feingold
Senator Dianne Feinstein
Senator Chuck Grassley
Senator Orrin Hatch
Senator Edward Kennedy
Senator Herb Kohl
Senator Jon Kyl
Senator Patrick Leahy
Senator Mitch McConnell
Senator Charles Schumer
Senator Jeff Sessions
Senator Arlen Specter
Senator Strom Thurmond
Re: Polygraphs and FBI Espionage Investigation
Dear Members of the Senate Judiciary Committee:
As part of your oversight and understanding of the FBI, I believe you should know of my personal experience under FBI investigation. The blunders and shameful practices, in which the polygraph played a major role, have repeated themselves in subsequent cases, and are sure to continue in the future, much to the detriment of effective law enforcement. With this in mind, my key recommendation is this: eliminate the use of the polygraph as a screening device. Eliminate it within the FBI and eliminate it government-wide. Then eliminate it altogether. I expect you to have further scientific backing for such action when the National Academy of Sciences concludes their study of polygraph screening.
I was an FBI Special Agent from 1987 to 1996. In January 1995, based solely on polygraph charts (and perhaps my religion), the FBI falsely accused me of spying for Israel and launched an intensive, worldwide investigation. Nearly two years later I was exonerated, as the FBI inevitably failed to corroborate their ill-conceived accusation. Disturbingly, they never acknowledged their mistakes, nor learned from them. Misplaced reliance on the polygraph was one of their most inexcusable.
In the FBI's misguided zeal to corroborate polygraph charts and convict me, they flouted due process, demonstrated an incompetence borne of arrogance, distorted my statements to make them appear inculpatory, and fabricated evidence. They interviewed scores of people, scrutinized my personal journals, correspondence, and detailed financial records (all of which I voluntarily provided), and examined virtually every aspect of my personal and professional life without uncovering any proof of wrongdoing. Yet rather than considering that their polygraph-based conclusions, reached at the beginning of the investigation, were wrong, the FBI insisted more fiercely that it must be I that was concealing a past misdeed.
This letter would have been written much sooner had the FBI not taken over four years to fulfill my Freedom of Information Act request, which I filed in January 1997. I finally received the documents in early July, 2001.
This analysis stems from my own personal observations, debriefing of interviewees, review of documents released to me, and independent study. Much of the documentation released to me was redacted, and I have not seen the vast majority of the 12,000 pages and 32 volumes that comprise the investigative file. While I cannot comment on documents I have not seen, the pattern found in the documents I reviewed is undoubtedly duplicated in the redacted portions and in the withheld documents, since it is the same investigative team, the same investigative practices, the same FBI.
II. The FBI Flouted Due Process.
The FBI Security Programs Manager at the time of the investigation, Robert J. Opfer, wrote to me: "You are the subject of a security reinvestigation involving your inability to resolve issues relating to your association with foreign nationals, drug usage, as well as your susceptibility to coercion as a result of your concealment of these matters." (emphasis added).
Even if I accepted the burden of disproving the charges against me, as Mr. Opfer indicated was my responsibility, at no time did the FBI ever specify which foreign nationals I illegally associated with (none), what "drug usage" they were referring to (there was none, other than what I reported of the 3-5 times I tried marijuana as a teenager), how I was susceptible to coercion (I was not), or what I concealed (nothing). The furthest extent of their specificity was that I had unauthorized contacts with someone from Israel. Though I have never been there, I believe the population of that country exceeds five million people.
Riddled throughout the record are statements closely paralleling the following: "The possibility of unauthorized contact with non-United States intelligence was discussed at length with SA Mallah; however, he again failed to provide any explanation for his deceptive responses." (emphasis added).
Having had no unauthorized contact with non-United States intelligence, what possible explanation could there be other than that the polygraph was wrong? This is what I said, in addition to recounting various thoughts the question elicited. But because my comments were not corroborating admissions, the FBI considered that I had failed to provide any explanation for my supposedly deceptive responses.
For an organization sworn to upholding the Constitution, such flouting of constitutional principles- the presumption of innocence and due process- is disgraceful. The FBI replaced it with a Kafkaesque scheme whereby they level amorphous charges, place the onus on the accused to rebut the amorphous charges, and then, when the accused asserts his innocence, object that he failed to provide an adequate explanation. Though this was an internal investigation able to skirt basic constitutional protections, it is wise to recall Thomas Mann's warning about Germany during the 1930's, which I paraphrase: do not expect a country with brutal internal policies to act any different externally.
III. The FBI Proved Itself, in this Investigation, to be Guilty of an Incompetence Borne of Arrogance.
This nearly two year investigation presented investigators with a simple choice: either the polygraph was correct and I was guilty of espionage and other transgressions, or I was innocent, as I had all along maintained and as reality confirmed, and in which case, the polygraph was wrong.
Since I extended my complete cooperation, the FBI had a staggering amount of information to scrutinize and from which to generate leads: detailed financial records, address books, daily "to-do" lists, personal journals, correspondence, my personal computer and disks, all my FBI records, including all the cases on which I worked. I know that the FBI surveilled me with a team of cars and an airplane, profiled me, interrogated me, interrogated friends, searched my home, interviewed dozens of friends, colleagues, associates, and acquaintances, sent out leads worldwide, and conducted much more extensive investigation that such espionage investigations entail, but which was hidden from me.
By the FBI's own admission (through then New York SAC Carson J. Dunbar, approved by then Assistant Director James Kallstrom) at the end of the investigation, "no solid information regarding wrong doing on National Security issues has been substantiated." This sentence would be more accurate without the word "solid," and if it encompassed the other issues on which I was falsely accused as well. Mr. Dunbar goes on to state: "The use of the polygraph in this case has been extensive, yet no material documentation has been developed÷on which to recommend adverse administrative action." Again, deleting the word "material" would render this sentence more accurate.
Amazingly, Mr. Dunbar (and apparently the FBI as a whole) accounts for this glaring contradiction between polygraph charts and the investigative record by stating: "New York cannot explain Mallah's failure of the polygraph regarding National Security issues."
"Cannot explain!?" Had it not occurred to the FBI that perhaps the polygraph was wrong? Should not have this prompted some reassessment of the polygraph, rather than its expanded use? Did the FBI not consider that of all the outside scientific experts who have studied the matter, whether opponents or proponents of the polygraph, all agree that polygraph screening is notoriously inaccurate? Did it not occur to the FBI, amid an investigation continually coming up with nothing, that the premise of the investigation (polygraph charts) was faulty?
It is clear that the FBI negligently and incompetently failed to consider that the polygraph was wrong, despite overwhelming evidence of its inaccuracy in screenings (and for other purposes), and despite the contrariness of the investigative record. Such incompetence resulted in a colossal and needless waste of investigative resources, and unnecessary stress and distress inflicted upon myself and my family.
This is at least partially attributable to a failure to conduct an objective investigation. The FBI instead engaged in a partisan demonization process, or hatchet-job, of distortion and half-truths that painted a fraudulent picture which the FBI themselves swallowed. Some examples follow. In their prosecutory zeal, they bought their own propaganda. In their arrogance, they failed to consider that they could be wrong, even when the truth was smashing them in the face.
The arrogance continues today. On July 18th, 2001, Kenneth H. Senser, Acting Deputy Assistant Director of the FBI, testified before the Senate Judiciary Committee and stated about the polygraph: "As there are elsewhere in the Intelligence Community, there will be unexplainable false positives÷"
"Unexplainable false positives" is an oxymoron. A "false positive" is a truthful person incorrectly deemed deceptive. There is nothing "unexplainable." The subject is innocent and the polygraph is wrong. Yet by characterizing such an unequivocal situation as "unexplainable," the FBI refuses to acknowledge that the polygraph is wrong, and can thus keep pressure on the innocent subject to "explain" the false positive. You can be sure that the FBI will deem the innocent subject's explanation "inadequate."
IV. The FBI Distorted Statements, Fabricated Admissions, and Misrepresented the Truth.
The record reeks of a blatant attempt to distort statements I made, fabricate admissions, and misrepresent the truth. The following are only some examples. Numerous others exist, which I would be pleased to elaborate upon:
Background: Following a two day polygraph interrogation wherein I was falsely accused of spying for Israeli intelligence and deception about the very limited amount of times I tried marijuana as a teenager (about 3-5 times), I was interviewed by the case agent.
What I said: I told the case agent that I was actually glad that I "failed" the drug portion of the polygraph because that showed how absurd the polygraph results really are. Anyone who knows me, I told him, will instantly realize that accusing me of doing drugs is ludicrous, and demonstrates just how wrong the polygraph is.
The FBI Version: "Mallah felt relieved that he failed the drug portion of the polygraph examination administered at FBIHQ. This took a lot of burden off of him." Subsequent reporting even has me quoted as saying "it took a burden off of [me]." I never said this, literally or in effect. The FBI version fraudulently makes it appear as though I was glad that I had finally unburdened an incriminating secret.
Background- One year into the investigation and grasping for theories, the FBI first raised their suspicion that I had classified documents stolen from a briefcase inside the trunk of my wife's car. The trunk was broken into on a Friday night while my wife and I joined some friends for a social outing. A non-FBI friend had his briefcase stolen as well, and we immediately reported the theft to the police. The FBI polygraphed me (the polygraph interrogator was Mark Johnson) on this incident, which had occurred about four years prior to this polygraph.
What I said- That I was sure there were no classified documents in the briefcase because it was my regular practice not to take classified documents out of the office, and it was on a Friday night, so even if my practice was otherwise, I would have no need for any classified documents over the weekend. Johnson polygraphed me, then insisted that I was showing deception on this issue. He challenged me as to how I could be so sure about it, especially when the incident was four years ago. Did I inventory the briefcase before it was stolen, he asked? I responded that I could look out the window and see it was daylight, but if I did not actually see the sun and he asked me if I was absolutely sure that the sun was really there, then no, I could not be 100% sure of that either, but I could be as sure as I could possibly be. The same with the absence of classified documents in the briefcase, I told him.
The FBI Version- "Mallah admitted that he could not be 100% certain that there were no classified documents in the briefcase the night it was stolen. Mallah stated that he had no specific knowledge of what classified document could have been in the briefcase."
Subsequent reporting on this issue, from a Special Agent in Charge of the New York Office at the time, Carson Dunbar, stated: "Prior to the polygraph, SA Mallah stated that 'to the best of his knowledge, he can 'categorically' state that there were no Bureau (FBI) documents, classified or otherwise, contained in that briefcase when it was stolen (end quotes missing). After being told that his polygram reflected that he was deceptive, Mallah stated that 'he could not be 100% certain that there were no classified documents in the briefcase the night it was stolen.'"
Background- The night before the FBI screening polygraph, I wrote in my journal to clear my mind and alleviate well-grounded fears I had about the inaccuracy of the polygraph, having endured an abusive experience with it as a CIA applicant eight years prior.
What I wrote- "I've never disclosed anybody's name and never given any details on any case I've worked on. I truly have nothing to worry about by telling the truth. I can't control the polygraph, so just tell the truth; let the machine do its thing, whatever that thing is."
The FBI Version- "Mallah has also written statements 'I have never passed anything that wasn't public source information.'" I never wrote this! Other reporting on this same topic quotes me as writing in my planning calendar (which I no longer have for verification): "I have never revealed anything that is not public source information." If I did write this, "revealing" is significantly different than "passing," which implies the illicit use of tradecraft, as opposed to what is "revealed" in everyday conversations with friends, family, and colleagues when discussing work-related matters.
Had this case gone to trial (the Department of Justice prudently declined prosecution), agents making such false representations would have been eviscerated on the witness stand, resulting in another Wen Ho Lee type embarrassment for the FBI, and further erosion of public confidence in the agency.
V. Conclusion and Recommendation
Had the FBI learned from the mistakes of their investigation of me- the danger of getting entrenched in a position, the inadvisability of reaching a conclusion at the beginning of an investigation, the junk science that is the polygraph, the pursuit of an individual target as opposed to the pursuit of the truth- perhaps the Richard Jewell and Wen Ho Lee debacles would have been avoided. Certainly, the FBI repeated the same mistakes in those cases, have been repeating them since, and will surely repeat them in the future. I remain appalled at the underwhelming standard of proof needed to instigate and sustain this investigation. Incredibly, no one had the judgment or courage to demand supporting evidence any stronger than squiggly lines or unsubstantiated innuendo.
Just as disturbing for a law enforcement agency in which the public confers great trust is a pattern of distortion, fabrication, and selective perception. As an agent, I was taught that whatever I put in writing, I should be prepared to have it read back to me on the witness stand, in open court, by a hostile defense attorney eager to take it apart. I think this a sound guideline which for some reason, the FBI abandoned in my case, and, I have learned, many others involving admissions and confessions inexplicably materializing on polygraph reports.
Restoring confidence in the FBI requires, as a precondition, that the FBI earn that confidence. One way to earn confidence is to acknowledge and learn from mistakes. Reviewing my case, as well as numerous others where the polygraph has dismally failed (Aldrich Ames, Larry Wu Tai Chin, Cuban double agents, Wen Ho Lee, David Tenenbaum, Adam Ciralski, et al.) leads to an excellent starting point: eliminate the polygraph as a screening tool. As to the other problems, perhaps a reminder that perjury is still a crime, even if committed in the line of duty, and self-serving distortion of testimony may make you look like a hero now, but may also reveal you to be a scoundrel later on.
cc. Robert Mueller (FBI Director Designate)
Thomas J. Pickard (Acting FBI Director)
Kenneth H. Senser (FBI Acting Deputy Assistant Director)
David James (Senate Judiciary Committee staff)
Dr. Drew Richardson (FBI Laboratory)
Shawn Efran (CBS News)
Raymond Bonner (New York Times)
Dan Eggen (Washington Post)
Lenny Savino (Knight Ridder)
Jim Stewart (CBS News)
SSA Paul Cully (polygraph interrogator)
SSA Mark Johnson (polygraph interrogator)
Jim Murphy (former FBI polygraph unit chief)
SAC Carson J. Dunbar
SA John Sennett (FBI Agents Association)
George Maschke (antipolygraph.org)
Gino Scalabrini (antipolygraph.org)
Tilman Remme (BBC)
SA Stan Harris
SA John Haines
PS: A copy of this letter will be placed on-line in the articles section of www.antipolygraph.org