To discuss the issues raised in this article, see the AntiPolygraph.org message board thread, A Response to Paul M. Menges.
A Response to Paul M. Menges Regarding the Ethical Considerations of Providing Polygraph Countermeasures to the Public
by George W. Maschke
25 February 2003
Paul M. Menges, a federal polygraph examiner and instructor who currently teaches the Department of Defense Polygraph Institute's countermeasure course, argues in a recent article titled "Ethical Considerations of Providing Polygraph Countermeasures to the Public" (Polygraph, Vol. 31 , No. 4, pp. 254-262), that publicly making available such information is unethical and concludes with the suggestion that it should be outlawed. The present article is a response to Mr. Menges' arguments. Since Polygraph, the quarterly publication of the American Polygraph Association, is not readily available to most members of the public, I will begin by citing the abstract of Mr. Menges' article:
Polygraph or Forensic Psychophysiology is an art-science not well understood by the general public. Defended by law enforcement and intelligence agencies as a valuable investigative tool and castigated by others as intrusive and unscientific, polygraph has in recent years come under increasing fire from a vocal minority. Using the technology of the day, the Internet, polygraph opponents are attempting to further their stated goal, the abolishment of polygraph as a viable investigative aid to law enforcement and national security. In addition to questioning the scientific basis for and legitimacy of polygraph practices, some polygraph opponents have gone a step further to advocate the use of countermeasures to defeat polygraph examinations. Indeed, some argue that even innocent subjects need to employ countermeasures in order to be deemed innocent by examiners (Maschke & Scalabrini, 2000; Williams, 2000). The Constitution of the United States provides all citizens with the right of free speech. We enjoy the freedom to challenge government policies and to openly debate issues. However, bounds have been set by our society to protect individuals and the greater good for all citizens. Polygraph is scientifically valid and a tremendous investigative tool available to law enforcement and security personnel of this country. Efforts to openly subvert its use by advocating use of and providing countermeasures training and information to all subjects, regardless of innocence or guilt, run counter to the best interests of society and public safety. These efforts, while currently not illegal, cross the bounds of ethical conduct and present a threat to public safety and good order in society. The time has come to confront this threat by alerting the public to these efforts that aid guilty parties who threaten society, public safety, and quite possibly our national security.
Although in many places, Menges speaks of "polygraph opponents" in general, it is clear that he refers mainly to AntiPolygraph.org. Thus, Menges' assertion that "[u]sing the technology of the day, the Internet, polygraph opponents are attempting to further their stated goal, the abolishment of polygraph as a viable investigative aid to law enforcement and national security" stands in need of clarification. AntiPolygraph.org's "stated goal" is not the abolishment of polygraphy "as a viable investigative aid to law enforcement and national security." We consider polygraphy to be neither valid nor viable, and we simply seek its abolishment.
Menges states that "some polygraph opponents have gone a step further to advocate the use of countermeasures to defeat polygraph examinations." AntiPolygraph.org does not advocate the use of countermeasures "to defeat polygraph examinations." Our suggestion to anyone suspected of a crime has always been (and remains) to refuse to submit to polygraphic interrogation. With regard to polygraph screening, we have never advocated that anyone use countermeasures to "defeat" a polygraph examination. Nor have we made the argument attributed to us by Menges that "even innocent subjects need to employ countermeasures in order to be deemed innocent by examiners." Rather, we have simply suggested countermeasures as a possible strategy for protecting oneself against a false positive outcome.
Menges asserts, without support, that "[p]olygraph is scientifically valid...." We strongly disagree. As explained in Chapter 1 of The Lie Behind the Lie Detector and the sources cited therein, polygraphy -- lacking both standardization and meaningful control -- is pseudoscience. It is not a valid diagnostic technique, and the majority of psychophysiologists do not agree that it is based on scientifically sound psychological principles or theory.
Thus, we see that Menges' conclusions regarding the ethics of making information regarding countermeasures available to the public proceed from a misunderstanding of AntiPolygraph.org's actions, arguments, and objectives, and from a mistaken belief in the validity of polygraphy. These false premises are also evident in the opening paragraph of Menges' article, where he states, "This paper will address the question, Is it ethical to provide information to and assist guilty individuals who attempt to defeat a legitimate, legal, publicly accepted, ethical procedure used by law enforcement and national security agencies?" By framing the question in these prejudicial terms, Menges foreordains his desired conclusion(s).
It should also be noted that Menges adopts a different definition of "countermeasures" than does AntiPolygraph.org. For Menges, "[c]ountermeasures refer to deliberate attempts by a guilty person to preclude the accurate outcome of a testing process." By contrast, in The Lie Behind the Lie Detector, AntiPolygraph.org defines countermeasures simply as "deliberate techniques that may be used to 'pass' a polygraph interrogation," without regard to guilt or innocence.
In his discussion of AntiPolygraph.org, Menges states that The Lie Behind the Lie Detector "contains advice regarding countermeasures to be employed to defeat polygraph examinations," insinuating that our motivation in making this information available is to assist the guilty rather than to help the innocent to protect themselves against the random error associated with an invalid test. Menges goes on to state that "indications are that the focus will be expanded to any psychometric testing technique which attempts to provide insight to an employer or security agency." Menges bases this conclusion on a message titled How to pass a Rorschach test that I posted to the "Off-topic Posts" forum of the AntiPolygraph.org message board. Contrary to Menges' suggestion, AntiPolygraph.org is not opposed to psychometric testing per se. But we are opposed to pseudoscience, of which the Rorschach (ink blot) "test" is a good example (and one that shares some features in common with polygraphy). Our focus remains polygraphy.
Menges also makes much of a 17 November 2001 report by New York Times correspondent David Rohde titled, "In 2 Abandoned Kabul Houses, Some Hints of Al Qaeda Presence," in which Rohde reports that documents seized in two Kabul houses formerly used by members of Osama bin Laden's Al Qaeda organization included Arabic language instructions on how to pass lie detector tests. Menges wonders aloud, "What ethical justification would suffice for these polygraph opponents, if the document found was The Lie Behind the Lie Detector or How to Sting the Polygraph!" Menges even goes so far as to suggest that the respective authors of these documents might be guilty of sedition or even treason, though he allows that this is a matter that "will be left to attorneys to argue."
What Menges seemingly fails to realize is that the information on polygraphy and polygraph countermeasures in The Lie Behind the Lie Detector is information that any interested person could have obtained by reviewing the open source literature on polygraphy, much of it published by the polygraph community itself. By Menges' logic, the Department of Defense Polygraph Institute, the American Polygraph Association, and various scholarly journals and publishing houses might also be guilty of some crime.
As it turns out, the Al Qaeda document found in Kabul was probably neither The Lie Behind the Lie Detector nor "How to Sting the Polygraph!" An Arabic-language Al-Qaeda document titled Mawsu'at al-jihad (Encyclopedia of Jihad) includes a section on "Devices Used in Interrogation" and is likely the document that Rohde encountered. (An English-language translation of this passage is available on AntiPolygraph.org.)
Menges maintains that "[t]he issue of whether countermeasures are or can be effective in defeating a polygraph examination is moot to the main point of this article." Hardly. If Menges did not believe that countermeasures can be effective, then there would have been little point in his having written the article. (Nor would the American Polygraph Association have had much reason to publish such an article.) Indeed, it is hard to conceive that Menges would have gone so far as to imply that Mr. Scalabrini and I might be guilty of sedition or treason for making such information publicly available if he did not believe that such can be effective.
Menges shrugs off the issue of false positives and false negatives associated with polygraphy by noting that "all forms of psychometric assessment are subject to varying false positive and false negative rates." So what? Menges asserts that "[a]ny competent professional conducting psychometric assessments is aware of the limitations and capablilities of the technique in use." But the polygraph community is unable to state the sensitivity and specificity of any particular polygraph technique for any particular application.
Discussing the ethical issue of examiner deception, Menges states, "[a]nother issue of contention for some is their claim that the examiner is deceptive, therefore, the examinee is ethically justified in employing countermeasures to defeat the examination." (Again, Menges wrongly implies that polygraph opponents advocate the circumvention of polygraph "tests" by the guilty, a recurring theme in his article.) But Menges fails to confront the fact that even without the use of card tricks during the "pre-test" phase, polygraphy remains fundamentally dependent on deception, as explained in detail in Chapter 3 of The Lie Behind the Lie Detector. It is not hard to understand why polygraph advocates would be inclined to sweep the issue of polygrapher deception under the rug, but it is a key concern that must be candidly considered in any meaningful discussion of the ethics of providing polygraph countermeasure information to the public.
While Menges makes other arguments that may be worthy of commentary, I will conclude this response with an examination of the most alarming portion of his article, that is, his suggestions regarding how polygraph examiners should confront the public availability of countermeasure information. After citing several examples from Freedom of Information Act (FOIA) case law where certain information about polygraphy was deemed exempt from disclosure, Menges argues:
In spite of the FOIA exemption to preclude release of such information from government offices, there is no legal statute precluding individuals from selling and or freely providing polygraph countermeasures information, as do Williams (2000) and Maschke & Scalabrini (2000), respectively. Arguments and laws against allowing individuals to provide countermeasures information with the intent of subverting long standing and appropriately promulgated law enforcement efforts might appear to be a violation of constitutional rights. On the surface this position appears to argue against the constitutional guarantee of free speech. In the United States we live in a society governed by laws intended to protect the rights of individual citizens, while protecting the greater good, that of society as a whole. The U.S. Constitution has been interpreted to contain protections for individuals and society as a whole. The Preamble to the Constitution clearly addresses the intent to insure justice for all, promote the general welfare, and insure domestic tranquility in the land (The Constitution, 1787). Under The Constitution, one may have a right to freely express opinions on an issue and even work for legislation to outlaw the offensive practice. But to take actions that subvert legitimate law enforcement practices, the result of which could threaten public safety and or national security, violates all principles of ethics and can, in some cases, be illegal. Providing polygraph countermeasures to guilty persons facing law enforcement or national security polygraph examinations is unethical, clearly attempts to obstruct justice, and should be stopped.
Menges proceeds thence to suggest "alternatives" for both polygraph opponents and supporters, concluding his article thus:
Alternatives for those opposing the use of polygraph as an investigative aid or personnel security screening tool are obvious. Opposition can be dropped; it can continue in a form limited to all current forms of opposition, short of advocating and providing countermeasures to prospective examinees; or it can continue in its current form, which includes actions to help guilty persons attempt to defeat the efforts of society to maintain law and order.
For those supporting the use of polygraph, the alternatives are equally obvious. Current efforts by the anti-polygraph movement, including the providing of countermeasures information to the general public, can be ignored; they can be countered with efforts by examiners and professional polygraph organizations to engage the opposition in constructive dialogue to address the issue of aiding guilty parties; or a broader based initiative can be attempted by polygraph proponents. The latter alternative would have polygraph proponents contribute toward furthering the science by openly engaging in legitimate discussions with those entrusted to publicly scrutinize the process such as the National Academy of Sciences (National Academy of Sciences, 2001). Ethical principles like veracity, justice, beneficence, and non-maleficence would be well served by mitigating or removing the threat to society posed by providing countermeasures information to the general public and guilty parties, in particular. Additionally, all would benefit from the increased research and experimentation certain to be generated by such discourse and scrutiny. The desired end result would be a termination of the current attitude regarding providing countermeasures information to the public, possibly through legislative action indended to make the providing of specific countermeasures information illegal.
The latter alternative for the proponents would do much to further the resolution of the primary issue. Opponents could continue to exercise their constitutional rights to criticize, debate, research, and openly oppose the use of polygraph. Concerns for the fate of an innocent subject who fails to resolve all issues during the process is legitimate and worthy of continued attention. Few organizations can afford to miss out on a competent employment candidate. However, society must set the bounds of acceptable actions, whether involving national security clearance cases or cases where an applicant will have access to unprotected young children in a day-care center. In the final analysis, access is a privilege guarded by society, not an inalienable right.
I fully endorse Menges' suggestion that polygraph examiners and professional organizations might engage in constructive dialogue with polygraph opponents. Toward that end, I invite Mr. Menges and any others who may be interested in the issues he has raised to discuss them on the AntiPolygraph.org message board, where a message thread has been started for this purpose. In addition, AntiPolygraph.org would be happy to arrange for speakers to discuss or debate these and other polygraph issues with polygraph advocates in other public fora (preferably in front of a television camera and a live audience).
But it is clear that such constructive dialogue is not Menges' preferred alternative. His call for "a broader based initiative" is a euphemism for the criminalization of public speech on the subject of polygraph countermeasures and the banning of books such as The Lie Behind the Lie Detector. I will leave discussion of the civil liberties implications of such a proposal for another day. Suffice it to note for now that if the polygraph community is so fearful of countermeasure information that it would have it made a speech crime, then perhaps countermeasures are more effective and more difficult to detect than the polygraph community has heretofore been willing to acknowledge.
Mr. Menges, if you should succeed in criminalizing public speech regarding polygraph countermeasures, then after you've put me in jail and seized my computer, don't forget to burn the archival copy of The Lie Behind the Lie Detector that has been deposited with the Library of Congress.