Espionage Act Conviction of Former FBI Intelligence Analyst Kendra Kingsbury Raises Questions About the FBI’s Personnel Security Polygraph Program

On Wednesday, 21 June 2023, U.S. District Judge Stephen R. Bough sentenced former FBI intelligence analyst Kendra D. Kingsbury, 50, of Kansas to 46 months in prison to be followed by 3 years of supervised release. Kingsbury is to begin serving her 46-month sentence no later than 21 July 2023.

On 18 May 2021, Kingsbury had been indicted on two counts of unauthorized retention of national defense information in violation of Title 18, United States Code, Section 793(e) (the “Espionage Act”). On 8 June 2023, former U.S. president Donald J. Trump was indicted in part on similar charges. See United States v. Trump (9:23-cr-80101).

Among other things, the indictment against Kingsbury alleges that:

From in or about June 2004, up to and including on or about December 15, 2017, in the Western District of Missouri, and elsewhere, KENDRA KINGSBURY, the defendant, having unauthorized possession of, access to, and control over documents relating to the national defense, did willfully retain the documents and failed to deliver them to the officer or employee of the United States entitled to receive them, to wit, the defendant without authorization retained documents relating to the national defense at her personal residence…

In 2002, in reaction to the Robert Hanssen espionage case, then FBI director Louis Freeh ordered the creation of an FBI “Personnel Security Polygraph Program” whereby FBI employees in sensitive positions would be required to submit to both periodic and random polygraph screening. (In instituting this program, Freeh disregarded the advice of the FBI’s top scientific expert on polygraphy, the late Dr. Drew C. Richardson, then a supervisory special agent assigned to the Laboratory Division.)

The FBI’s Personnel Security Polygraph covers counterintelligence issues. A key counterintelligence topic typically addressed during such polygraph examinations is the mishandling of classified information. Storing classified documents at one’s home constitutes the mishandling of classified information.

On 13 October 2022, Kendra Kingsbury pleaded guilty to the charges in the indictment. There was no plea agreement with prosecutors.

Kingsbury, as an intelligence analyst who worked on counterintelligence cases, would have been a likely candidate for the Bureau’s Personnel Security Polygraph Program, so the question arises of whether she was ever polygraphed during the 13-year period during which she was admittedly storing national defense information in her home. And if so, what was the result? The FBI has not publicly commented on this.

In its sentencing memorandum, the U.S. government further alleges that telephone records show that between 2007 and 2018, Kingsbury placed phone calls to, and received calls from, telephone numbers known or believed to be associated with individuals who were the targets of counterterrorism investigations. This, too, is the sort of thing that might be addressed during a periodic polygraph examination.

All of this raises the question, why didn’t the FBI’s Personnel Security Polygraph Program detect or deter Kendra Kingsbury’s violations of the Espionage Act?

Another former FBI employee who faces criminal charges under the Espionage Act and who was neither detected nor deterred by the polygraph (and who indeed must have beaten the polygraph if the charges against him are true) is Alexander Yuk Ching Ma, whose trial is presently scheduled to begin in June 2024.