U.S. Senator Dick Durbin (D-IL) has introduced Senate Bill 1560, which would expand polygraph screening at the Department of Homeland Security. Specifically, the bill would block any exemptions to U.S. Customs and Border Protection’s (CBP’s) pre-employment polygraph requirement (as contemplated by House Resolution 2213) and mandate pre-employment polygraph screening at U.S. Immigration and Customs Enforcement (ICE). In addition, the bill would mandate periodic and random polygraph screening of selected employees of both agencies. The bill has been co-sponsored by Senators Tammy Duckworth (D-IL) and Kirsten Gillibrand (D-NY).
It would appear that Senator Durbin has introduced this legislation in a cynical ploy to attack Republicans from the right, that is, to appear “tougher on security” than them. House Resolution 2213, which was broadly supported by House Republicans, would allow CBP to waive its pre-employment polygraph requirement for some applicants with prior military or law enforcement experience, which would allow for a more rapid expansion of CBP’s workforce. In January 2017, President Trump signed executive orders mandating the hiring of an additional 5,000 CBP and 10,000 ICE agents.
In 2002, the National Academy of Sciences concluded that “[polygraph testing’s] accuracy in distinguishing actual or potential security violators from innocent test takers is insufficient to justify reliance on its use in employee security screening in federal agencies.”
Despite this, in 2010, the U.S. Congress passed, and President Obama signed into law, legislation introduced by Senator Mark Pryor (D-AR) mandating polygraph screening of CBP applicants.
Senator Durbin’s sponsoring of this legislation is hypocritical because he knows that polygraphy is unreliable. Speaking at a 2001 Senate Judiciary Committee hearing on “Issues Surrounding the Use of Polygraphs,” Senator Durbin stated:
As an attorney, I never advised clients to take a polygraph. I just did not believe in them. I still do not. They are largely inadmissible in most courts of law. I think the Federal Supreme Court has ruled, and others have, as well, that they are not admissible. Perhaps State and local courts can reach other conclusions, and there are a variety of reasons for that.
I guess some feel that if a jury saw a polygraph test, they would think, well, that is really the good measure of truthfulness and we do not have to reach our own conclusion, and some who just question whether the science is reliable at all.
At the conclusion of the hearing, Sen. Durbin summarized his position on polygraph screening thus:
Mr. Chairman, I thank you for this hearing. I have not thought about this issue a lot since I practiced law, but it has come up more and more and I think part of it has to do with our concern over national security. I think part of it has to do with the fact that we are looking for a quick fix here. We are trying to find some machine that is going to solve our problem. I do not think this is the machine. Thank you.
With Senate Bill 1560, Sen. Durbin is hypocritically seeking a quick fix that he knows isn’t going to solve our problem.
On 21 November 2016, imprisoned polygraph critic Doug Williamsfiled a court motion seeking amendment of federal judge Vicki Miles-LaGrange‘s sentencing order, which stipulates that upon release, Williams will be subject to three years’ “supervised release” during which time he “shall not participate in any form of polygraph-related activity.” Williams asks the court to modify the conditions of his release to allow him to engage in polygraph-related activity to the extent that it is not “intended or part of a scheme to defraud the United States or tamper with witnesses.”
On 10 February 2017, the U.S. Department of Justice filed a brief opposing Williams’ motion, effectively conceding that polygraph countermeasures work and arguing that “the restriction on polygraph-related activities for the full term of supervised release is the minimum restriction necessary to protect the public.”
On 21 February 2017, Doug Williams filed a reply to the government’s opposition, challenging the Justice Department’s legal arguments and arguing forcefully why his freedom of speech should not be curtailed. His broader arguments are worth citing here (cited as filed, without corrections):
7. Williams is a highly trained and experience polygraph operator. He has been working in his profession for over 44 years. The District Court has discretion to impose an occupational restriction as a special condition of supervised release, but its discretion must be exercised in accordance with 18 U.S.C. S3538 (d) Subsection (a) states that a sentencing court may impose an occupational restriction only if it determines that ” … Imposition of such a restriction is reasonably necessary to protect the public because there is reason to believe that absent such restriction, the defendant will continue to engage in unlawful conduct similar to that for which the defendant was convicted.”
8. In this case there is no reason to believe that Williams will “continue to engage in unlawful conduct.” Williams can practice his profession as a polygraph operator and continue to publish information about the ineffectiveness of the polygraph examination without engaging in a scheme to defraud the United States Government, or without tampering with a witness. Williams has a 1st Amendment right to provide information about how a person taking a polygraph test can avoid being falsely accused of deception simply because they have a nervous reaction to a relevant question. Williams has no intention of providing information or training to any person for the purpose of defrauding the government, or the tampering with a witness. In his business and occupation, Williams seeks to provide comprehensive information about the use of the polygraph examination as well as methods used by the subject being tested to prove their truthfulness on a polygraph examination.
9. Any occupational restriction must be “reasonably necessary to protect the public” which requires a finding by the Court that, in the absence of the restriction “the defendant will continue to engage in unlawful conduct similar to that for which the defendant was convicted.” U.S.S.G. 5F1.5 (a)(2). In providing information about the use of the polygraph examination as well as methods to produce a “truthful” polygraph chart tracing, Williams is actually protecting the public and individual citizens from being defrauded by government agencies or employees who improperly use the polygraph testing process, and falsely brand a truthful person as a liar simply because they are nervous.
10. The government’s response states: “Given the defendant’s (Mr. Williams) extreme disregard for public safety and national security, there are no less restrictive alternatives that would adequately prevent him from helping individuals lie in order to obtain or keep sensitive government positions. Williams would submit that he is more concerned with our national security as evidenced by the fact that he has devoted almost forty years of his life proving the polygraph is nothing but a scam and he has been warning the government that it is foolish and dangerous to rely in the polygraph as a “lie detector”. In truth and in fact, it is the polygraph operators and those government officials who rely on the polygraph who are the ones who have demonstrated little regard for public safety and national security by relying on such an unreliable procedure as polygraph testing. Furttier, there IS no evidence that Williams has ever been involved in “helping individuals lie in order to obtain or keep sensitive government positions”. In fact, the government seized Mr. Williams’ computer and downloaded the records of over 4900 people who had either purchased his manual and DVD or took part in my one on one polygraph test preparation training. The government agents, and an AUSA interviewed every one of these people who were of interest to them. They started the interview by saying, “We’re not after you, we are after Doug Williams.”. They interrogated them very intensely asking them if Williams ever told them to lie or if they ever told Williams they were going to lie. Not one of these people ever said Williams told them to lie or that they ever told Williams they were going to lie. It is of interest to note that polygraph operators from this same agency, the Customs and Border Patrol, admit that over two-thirds of the applicants for positions with that agency are denied employment because of a “failed” polygraph test so it is obvious that many thousands of people have been falsely accused of deception by government polygraph operators. This failure rate is another example of the polygraph program’s extreme disregard for public safety and national security by thwarting the Customs and Border Patrol’s efforts to adequately staff their agency.
11. The government’s response states: “Both UCs made it clear to defendant (Mr. Williams) that they could not keep or obtain federal employment unless he helped them lie about their crimes during their respective polygraph examinations. Knowing the UCs intent to lie to federal investigators in order to get or keep federal law enforcement positions, defendant (Mr. Williams) willingly trained them how to provide false responses to polygraphers questions and still pass.” That is not true, neither of the UCs told Mr. Williams they were going to lie on the polygraph test, nor did Mr. Williams ever tell them to lie. The first undercover agent simply said the investigators already knew he had “turned his head” while a friend brought in some drugs and the second undercover agent said he was going to tell the polygraph operator about his “crimes” and his only concern was that it would get back to the sheriff and he would lose his job as a deputy. Also, the government has no evidence that Mr. Williams “trained them to provide false responses to polygraphers questions and still pass”. The fact is that no polygraph test was ever administered to either of these undercover agents, nor did they ever intend to take a polygraph test. And there is no evidence that Mr. Williams helped them “lie about their crimes during their respective polygraph examinations” when no such test was ever taken. The UCs were the ones doing all the lying and they needed no help from Mr. Williams. Indeed, this was all pretend and they were even lying about lying since everything they said was scripted.
12. The polygraph is A simple device that has not changed significantly since in was invented in 1920. It records the subject’s blood pressure, pulse rate, respiration and what’s known as the galvanic skin response which is basically just a measurement of the increase or decrease of sweat activity on the subject’s fingers. Polygraph operators ask a series of questions during the test and measure the subject’s reaction or lack of reaction to the questions. There are two types of questions asked on the polygraph test – relevant and control. The relevant questions are those that pertain to the point at issue. For example, if the polygraph test is about drug smuggling, the questions would be as follows: Did you smuggle drugs into the country? Did you work with someone to smuggle drugs into the country? Right now could you take me to any of the drugs that were smuggled into the country? The polygraph operator will intersperse control questions during the test. The control questions would be as follows: Have you ever lied to anyone in authority to keep from getting in trouble? Did you ever deliberately hurt anyone? Have you ever stolen anything? The theory underlying the polygraph as a “lie detector” is as follows: If a subject has a reaction on a relevant questions that is greater than their reaction to a control questions, the subject is deemed to be deceptive. If the reverse is true, and the subject has a reaction to the control questions that is greater than their reaction to the relevant questions, the subject is deemed to be truthful. This reaction that would brand a person as a liar is simply a nervous reaction such as is seen in the fight or flight response. When a person is confronted with a threatening stimulus their body releases a shot of adrenalin which causes their blood pressure to increase, their breathing to become erratic, and the sweat activity on their hand to increase. In order for the polygraph to be accurate as a “lie detector’, this reaction that polygraph operators refer to as a “lying reaction” or a “reaction indicative of deception” must always indicate deception. The problem is that there is no such thing as a “lying reaction”. In fact, the reaction that brands a person as a liar can and often is caused by any number of innocent stimuli – such as embarrassment, rage at having been asked an accusatory question, simple nervousness, fear of being falsely accused of lying – even the tone of the examiner during questioning can elicit a reaction that would cause a person to fail the test. So, the polygraph records a person’s nervous reaction to relevant questions but the problem is that nervousness does not always indicate deception – in fact it only indicates deception about 50% of the time. Thus the polygraph is no more accurate than “the toss of a coin”. Mr. Williams simply teaches people what the polygraph records, teaches them the difference between the relevant and control questions and runs them through a relaxation exercise similar to that used in the Lamas technique of natural child birth. This training only takes about twenty minutes and then the subject is hooked up to the polygraph and is allowed to demonstrate their ability to relax when answering the relevant questions and think of something frightening when answering the control questions thereby producing a perfect “truthful” chart. When you consider the extraordinary failure rate of almost 70% at the Customs and Border Patrol – as well as other government agencies – it is logical to assume that many thousands of people are falsely branded as liars by government polygraph operators. It would be unconscionable to deprive those persons seeking this training from receiving it by prohibiting Mr. Williams from continuing to educate them about how to avoid being falsely accused of deception simply because they are nervous.
13. The government’s response states: “Because defendant’s criminal conduct was inextricably linked with his polygraph business and because defendant has repeatedly and deliberately sought to avoid knowledge of his clients intention to lie during polygraph examinations (in order to insulate himself from criminal activity), the Court’s restriction on defendants participation in polygraph related activity is necessary to protect the public.” There is no statute that prohibits Mr. Williams from teaching a person to pass, or for that matter to “beat” a polygraph test. Williams was charged with witness tampering and Mr. Williams’ knowledge or lack of knowledge about his clients intention to lie during polygraph examinations is irrelevant simply because having the knowledge that a person he is training plans to lie does not constitute a crime. The crime Mr. Williams was charged with is witness tampering not teaching a person how to pass a polygraph test. Further, as will be discussed later, except in these two cases, there is no evidence that anyone has ever told him they intended to lie during polygraph examinations, and Mr. Williams has certainly never told anyone to lie on their polygraph examinations – and in fact Mr. Williams never told any of these undercover agents to lie – nor did they ever tell Mr. Williams they planned to lie on their polygraph examinations. As regards the charges of witness tampering, it appears from the record that the only “tampering” being done was done by the government’s undercover agents. And it should be noted that these agents were not “witnesses” to anything. In fact everything they said was a lie. Also, everything Mr. Williams told the government’s undercover agents about how to pass a polygraph test was in his testimony to the congress in 1985 in support of the Employee Polygraph Protection Act. So Mr. Williams is in prison for telling the undercover agents exactly what he told the congress over thirty years ago.
14. Williams has been demonstrating how simple it is to “beat the box” on national television and in hundreds of seminars over the past thirty eight years. It is true that anyone can use Mr. Williams’ techniques to pass their polygraph test regardless of whether they are nervous or not, lying or not, no matter what. Mr. Williams has been saying that for almost forty years. He says that is hopes that those who use the polygraph or rely on the results reported to them by polygraph operators will realize that it is not accurate or reliable as a “lie detector” and will quit using it. Besides, liars can pass the polygraph test easily regardless of whether they have been trained or not. History is replete with examples of people who have lied and passed polygraph tests with no problem, Aldridge Ames, the CIA agent who was a notorious traitor, passed many polygraph examinations – and he was actively passing classified information to the Soviets when he took – and passed – many polygraph tests. As a matter of fact, there has never been even one traitor, or spy ever caught by the polygraph. Even the most recent episode with Edward Snowden demonstrates how foolish and dangerous it is to rely on the results of a polygraph test. Snowden passed two polygraph tests in order to get access to the information he leaked from the NSA. Snowden not only passed the pre-employment polygraph test, but he also passed the all encompassing, highly vaunted “lifestyle” polygraph test. Snowden passed both polygraph tests, even though he knew at the time he took the tests what he planned to do when he got his security clearance. If that doesn’t prove the polygraph is worthless, what does? So, the polygraph brands truthful people as liars and allows liars to pass the test with no problem. In fact, liars have demonstrated the ability to pass the polygraph test without any training whatsoever while truthful people are branded as liars at an alarming rate. Therefore, Williams’ training is essential to help truthful people avoid being falsely accused of deception. Accordingly Williams requests that the Court remove the special condition of his supervised release prohibiting his participation in any form of polygraph related activity.
In this video statement posted to YouTube on 31 January 2017, U.S. Customs and Border Protection applicant Megan Brown describes her pre-employment polygraph experience, which included an accusation of attempted polygraph countermeasures:
Associated Press reporter Elliot Spagat reports on the U.S. Customs and Border Protection’s pre-employment polygraph screening program:
SAN DIEGO (AP) — David Kirk was a career Marine pilot with a top-secret security clearance and a record of flying classified missions. He was in the cockpit when President George W. Bush and Vice Presidents Dick Cheney and Joe Biden traveled around the nation’s capital by helicopter.
With credentials like that, Kirk was stunned to fail a lie detector when he applied for a pilot’s job with U.S. Customs and Border Protection, which guards 6,000 miles of border with Mexico and Canada. After two contentious polygraph sessions that lasted a combined eight hours, Kirk said, he drove home “with my tail between my legs,” wondering how things had gone so wrong.
Two out of three applicants to the CBP fail its polygraph, according to the agency — more than double the average rate of eight law enforcement agencies that provided data to The Associated Press under open-records requests.
It’s a big reason approximately 2,000 jobs at the nation’s largest law enforcement agency are empty, with the Border Patrol, a part of CBP, recently slipping below 20,000 agents for the first time since 2009. And it has raised questions of whether the lie detector tests are being properly administered.
CBP Commissioner Gil Kerlikowske said the failure rate is too high, but that it’s largely because the agency hasn’t attracted the applicants it wants. He and other law enforcement experts contend the polygraphs are generally working as intended at the agency, which has been trying to root out bribery and other corruption.
Gil Kerlikowske should be asked to document how he knows that the reason the CBP failure rate is so high is “largely because the agency hasn’t attracted the applicants it wants.” A more plausible explanation is that an invalid procedure (polygraph screening) is frequently and predictably producing invalid results.
But others, including lawmakers, union leaders and polygraph experts, contend that the use of lie detectors has gone awry and that many applicants are being subjected to unusually long and hostile interrogations, which some say can make people look deceptive even when they are telling the truth.
Republican Sen. Jeff Flake of Arizona said he suspects CBP examiners fail applicants to justify their own jobs. He said he worries applicants are being wrongly branded with a “scarlet letter” in the eyes of other potential government employers.
“There seems to be no good explanation, and when we hear so many anecdotal stories, it starts to look like a trend where they feel like they have to fail them, a certain number,” he said. “It makes you angry that people would be put through that.”
Senator Jeff Flake is likely correct. Polygraph operators’ pass/fail rates are compared, and it’s likely that polygraph they don’t want to appear to be “soft” compared to their peers. Sen. Flake raised concern about the level of false positives in the CBP polygraph program in a Judiciary Committee meeting held in June 2016.
In December, the Homeland Security Department’s inspector general said it was reviewing whether CBP’s polygraphs are effective in hiring. The hiring difficulties have become so acute that the Border Patrol recently took the unusual step of asking Congress to use money earmarked for 300 jobs for other purposes. That raises doubts about President-elect Donald Trump’s pledge to add 5,000 agents.
Taking a polygraph became a hiring requirement at CBP in 2012 after a huge hiring surge led to more agents getting arrested for misconduct.
James Tomsheck said that when he was CBP’s chief of internal affairs from 2006 to 2014, about 30 applicants admitted during the lie detector test that they were sent by drug cartels; one said he killed his infant son.
One applicant revealed his brother-in-law wanted him to smuggle cocaine on the job, and another said he used marijuana 9,000 times, including the night before his test, according to the Government Accountability Office.
It is true, as James Tomsheck notes, that applicants sometimes admit to disqualifying behavior during pre-employment polygraph examinations.1 But only the most stupid of applicants make such admissions. Any person of reasonable intelligence seeking to infiltrate CBP on behalf of a drug cartel can pass the polygraph using simple countermeasures (see Chapter 4) that polygraph operators cannot detect.
Interviews with six applicants who failed to clear the polygraph fit a pattern: The examiner abruptly changes tone, leveling accusations of lying or holding something back. The job-seeker denies it and the questioning goes in circles for hours. Some are invited for a second visit, which ends no differently.
Luis Granado applied to the Border Patrol in 2014 with military experience and a bachelor’s degree from the University of Arizona. His father is an agent, and Granado used to proudly try on the badge as a boy.
“This was my dream job,” said Granado, 31, who is now a full-time Air Force reservist in Tucson, Arizona. “I wanted to follow in my dad’s footsteps forever.”
He said the examiner scolded him for answers that were “too emphatic, too fast” and told him to stop grinding his teeth.
Granado said the examiner was troubled by an admission that he cheated on a test in high school. When he denied ever belonging to a cartel or terrorist group, the examiner stopped and said, “Well, I think you’re being deceptive,” according to Granado. After two sessions that lasted a total of 12 hours, his conditional job offer was rescinded.
CBP declined to comment on individual cases.
Luis Granado’s experience is an all-too-common story, and it’s happening not only to CBP applicants, but also to applicants with other federal agencies with a polygraph screening requirement. See AntiPolygraph.org’s Personal Statements page for examples.
CBP’s Kerlikowske put the agency’s polygraph failure rate at about 65 percent. The AP asked law enforcement agencies across the country for two years of lie-detector data for job applicants, including police departments in the nation’s 10 largest cities and in major towns along the Mexican border. The eight that supplied numbers showed an average failure rate of 28 percent.
Tomsheck said that when he was CBP’s internal affairs chief, other federal agencies, including the FBI and Secret Service, had failure rates of less than 35 percent. The U.S. Drug Enforcement Administration, the only federal agency that supplied data to the AP, failed 36 percent in the last two years.
Mark Handler, editor in chief of the American Polygraph Association, said failure rates of about 30 percent are typical in law enforcement hiring.
Kerlikowske explained that the agency isn’t getting the applicants it wants because the relatively new CBP, created in 2003, “doesn’t have a brand” and is unfamiliar to some.
Among other possible reasons offered by some experts for the agency’s failure rate: CBP may have higher standards than local departments, and it get less-experienced applicants who have never taken a lie detector before.
Agencies can and do set their polygraph pass/fail rates as high or as low as they please. For example, in the late 1990s, the FBI had a pre-employment polygraph failure rate of 20%. But after 9/11, with a surge in the number of applicants, that failure rate more than doubled to 50% by 2002. It is not plausible that this rate increase had anything to do with the FBI having higher hiring standards (they didn’t change) or the fact that applicants had never been polygraphed before. Rather, with more applicants, the FBI felt it could afford to arbitrarily brand a higher percentage of applicants as liars and disqualify them.
The duration of CBP’s testing strikes some experts as unusual.
“If there’s an exam that lasts four to eight hours, your polygrapher is either incompetent or a fool or both,” said Capt. Alan Hamilton, commanding officer of the Los Angeles Police Department’s recruitment and employment division. His department’s exams last no longer than 90 minutes.
Handler said prolonged, accusatory interviews can lead to failures for people who are telling the truth. Lie detectors measure blood pressure, sweating and breathing.
The relatively lengthy polygraph interrogations at CBP likely result from the fact that the CBP polygraph program was largely created and initially staffed with retired U.S. Secret Service polygraph operators, who could collect their pensions while receiving federal salaries with CBP (“double-dipping”). Lengthy, abusive interrogations have long been a hallmark of the USSS polygraph program. See, for example, the personal statement of Bill Roche.
Polygraphs are generally not admissible in court, and federal law bars private employers from using them to hire. The military doesn’t use them to screen enlistees, and some law enforcement agencies don’t use them in hiring, including the New York Police Department, U.S. Marshals Service and Immigration and Customs Enforcement.
CBP, under pressure to hire, recently loosened standards on previous marijuana use and, under a law that took effect in December, can waive polygraphs for veterans with top-secret clearances.
A better solution would be to scrap the polygraph program entirely. Given polygraphy’s lack of scientific underpinnings and vulnerability to simple, easily-learned countermeasures, CBP and other federal agencies should scrap their misplaced reliance on it. See AntiPolygraph.org’s proposed legislation for effecting this outcome.
Kirk, 47, of Friendswood, Texas, applied to CBP in 2013 after 20 years as a Marine officer and calls it one of the worst experiences of his life. In the Marines, “one of our biggest mantras is our honesty and integrity,” he said. “Someone calling me a liar, I take it very personally.”
During the 2013 polygraph exams, he said, he was accused of cheating on his wife and mishandling classified information and was told he acted like a drug trafficker trying to infiltrate the agency. Kirk vehemently denies the allegations.
The accusation of marital infidelity “almost made me want to jump across the desk,” said the father of four. He told the examiner that he tried marijuana in college and says the biggest mark on his record is a speeding ticket.
“They treated me like a criminal,” said Kirk, now a private pilot. “I don’t know who was better qualified than me to fill this position.”
See also this video report produced by the Associated Press, which includes an interview with David Kirk:
AntiPolygraph.org is unaware of any instance where someone attempting to infiltrate CBP on behalf of a drug cartel was criminally prosecuted. [↩]
The U.S. Border Patrol is facing criticism for the way it administers polygraph exams on would-be hires. The agency has fielded complaints from applicants, members of Congress and the agency’s union.
Customs and Border Protection was required to give polygraphs six years ago to all of its applicants for front-line jobs. That includes port inspectors and Border Patrol agents. Officials say the test was implemented to weed out corruption in the ranks.
The agency’s also under pressure by Congress to hire 1,300 more Border Patrol agents. Critics say what they see as a heavy-handed polygraph examination is hurting those recruitment efforts.
“They’re supposed to be doing the polygraph testing, doing the report and then they send it through, but that’s not what’s happening, at least not in Tucson sector,” said Art Del Cueto, president of the agency’s union in Tucson.
Rather than passing the results of the polygraph on, in the Tucson sector, Del Cueto says one person was made responsible for administering the lie detector test and deciding whether or not to fail an applicant.
“What’s been happening in Tucson sector, is that the individual who’s been doing the polygraph test, he’s acting like the judge, the jury and the executioner,” he said.
The issue has come up before. Republican Rep. Martha McSally chairs the House’s Border and Maritime Security Subcommittee and grilled CBP last April.
“We have heard several anecdotal horror stories of decorated combat veterans who, for some reason, were unable to pass this polygraph coupled with some bizarre-sounding behavior on behalf of some of the polygraph examiners,” McSally said.
A CBP official said their program follows federal standards and said polygraph examiners are monitored on a daily basis and their audio recordings are checked.
Del Cueto read from one complaint, a woman who recently failed her CBP polygraph exam and sent him an email about it.
“He told me that my readings were similar to that of a Russian spy. Or someone that had been very carefully trained. I asked him what was the cause of failure. And he stated I failed for drugs and for falsifying my application. He also told me that he knew I was lying as they already had information about me in the criminal database. He stated that this was known since I arrived at the office. I told him that was not accurate and he said it doesn’t matter,” he read from the email.
The writer of the email also said the examiner shared past lie detector stories with her.
“He then said he knew I manipulated the machine and there were so many ways I could have done it, like curl my toes, count backwards, etc., etc.,” Del Cueto said.
CBP declined an interview about the allegations made against its polygraph examiner in Tucson. A spokesman emailed a list of bullet points on the agency’s polygraph policies, but did not answer questions about those policies.
According to the union, 80 percent of those who fail polygraph exams in Tucson go to work for other law enforcement agencies who administer their own polygraph exams.
Art Del Cueto also spoke about CBP polygraph policy on Episode 84 of the NBPC’s Green Line podcast (beginning at about 12:40), which was released on 30 June 2016.
In a hearing of the U.S. Senate Committee on the Judiciary held Thursday, 30 June 2016, Senator Jeff Flake (R-AZ) expressed concern to Department of Homeland Security Secretary Jeh Johnson about the level of false positives in the U.S. Customs and Border Protection pre-employment polygraph program, and that such false positives amount to a “scarlet letter” for employment elsewhere in government. Sec. Johnson replied that he has asked his people to “take a hard look at” the concerns raised by Sen. Flake.
A transcript of the relevant portions of the hearing follows (emphasis added):
Sen. Flake: Let me talk for a minute about CBP hiring. As you know, Congress approved a staffing level, of — that’s well in excess of what we have on the ground there now. We’re short about 950 officers. We were told — I had a meeting where we were trying to get to the bottom of why it’s taking so long to hire some of these folks, and we’re told that for every 100 applications — every 100 applicants that apply, only one is hired. And a lot of people identify the polygraph that is taken for a lot of the false positives and concern that one false positive is a scarlet letter for any employment opportunity that might come up elsewhere in government. I know that there’s an issue there. Do you want to comment?
Sec. Johnson: Well, I have asked our folks to take a hard look at exactly what you just said. Is it — does it really need to be the case that one false positive disqualifies you from federal service — federal law enforcement service? I’m aware of the statistics you cite. One in 100, and the length of time it takes to hire somebody for the Border Patrol, for CBP. Senator, as I’m sure you know, we have surged our efforts through hiring hubs, through aggressive recruitment, aggressive recruitment among our military personnel, at military bases.
Sen. Flake: We did pass the Border Jobs for Veterans Act.
Sec. Johnson: Correct.
Sen. Flake: And were told that that’s moving the needle a bit.
Sec. Johnson: Correct. And I think we’re closing the gap. Slowly, I think we’re turing the corner and closing the gap so that we can hire up to what has been appropriated and authorized. You are correct that we are currently I think 950 short, but I ask CBP every time I see the senior leadership, “How are we doing on the hiring? Are we making a difference? Are we doing as much as we can?” And we seem to be closing the gap. But I do think that we ought to take a hard look at whether we’re shooting ourselves in the foot by, by you know, this very lengthy, cumbersome process that it takes to recruit and hire people and get them through all the vetting.
Sen. Flake: When you combine this with the high attrition rate there, we would have to accept, I think 100,000 applications. We’re not going to get even close to that. Just to get to the number, assuming one out of a hundred. So I would encourage you to look at some options here and figure how we can change the process because it’s not working and we’re severely understaffed at some of the ports of entry. A lot of people just see the border as, you know, something that maybe we ought to just put a wall or something to stop illegal entry. Certainly we have to have a secure border, but in Arizona, it’s also a hub of commerce, and that commerce can’t take place if we have too few agents there in these ports of entry. As you know, we’ve made a lot of investments in infrastructure there, but if we don’t have them staffed, it doesn’t do us much good.
The best way to address concerns about the polygraph program’s deleterious effects on CBP’s ability to fill vacancies is to scrap the polygraph program. Polygraphy has no scientific basis, and the National Academy of Sciences advised that “its accuracy in distinguishing actual or potential security violators from innocent test takers is insufficient to justify reliance on its use in employee security screening in federal agencies.”
It should be noted that in 2014, CBP polygraph chief John R. Schwartz falsely claimed that sophisticated polygraph countermeasures can be routinely identified. The falsity of Schwartz’s claim is borne out by a set of CBP polygraph case files leaked to AntiPolygraph.org.
By relying on the unreliable pseudoscience of polygraphy, CBP is subjecting the many truthful applicants who wrongly fail the polygraph to unfair blacklisting while undermining national security and public safety. No reform can make up for polygraphy’s lack of scientific underpinnings. Polygraph screening should be abolished.
At a 15-minute arraignment hearing (258 kb PDF) held on Tuesday, 18 November 2014, Doug Williams of Norman, Oklahama, who was indicted last week in connection with his business teaching people how to pass polygraph tests, pled not guilty, was released on his own recognizance, and a trial date of Tuesday, 13 January 2015 was set. The case is to be heard before Chief Judge Vicki Miles-LaGrange at the U.S. District Court for the Western District of Oklahoma. Williams is represented by attorneys Chris H. Eulberg and Stephen H. Buzin.
On the afternoon of Friday, 14 November 2014, the U.S. Department of Justice announced the indictment (the day before) of Douglas Gene Williams, a former Oklahoma City police polygraphist and the proprietor of Polygraph.com, who has been teaching individuals how to pass polygraph “tests” since 1979. The 21-page five-count indictment accuses Williams of two counts of mail fraud for having received payment for his services through the U.S. Postal Service and three counts of witness tampering for allegedly “persuad[ing] or attempting to persuade” two undercover agents posing as customers “to conceal material facts and make false statements with the intent to influence, delay, and prevent the testimony” of the undercover agents “in an official proceeding….”
Williams is not charged with any alleged crime not involving an undercover agent posing as a customer. Whatever the legal merits of the government’s case against Williams, it seems clear that the overarching motivation of the criminal investigation against him is to suppress speech that the government dislikes. U.S. v. Doug Williams has serious implications for free speech in the United States.
For the time being, Williams is limiting his public comments based on legal counsel. However, he has previously described the February 2013 entrapment operation and raid that federal agents conducted on his home and office. Using business records seized during the raid, federal officials compiled an inter-agency watch list comprising the names and personal details of thousands of Williams’ customers, as well as a lesser number of customers of a second man, Chad Dixon, who was also targeted for prosecution.
The indictment (2.6 mb PDF) of Doug Williams is an implicit admission by the U.S. government that 1) polygraph countermeasures work, 2) it has no effective means of detecting them, 3) it is deeply concerned about polygraph countermeasures.
A decade ago, an instructor at the federal government’s polygraph school suggested in a polygraph trade journal that providing information about polygraph countermeasures to the public should be outlawed. AntiPolygraph.org co-founder George Maschke posted a public response, never thinking that the U.S. government would actually pursue such a radical plan. But it appears to be happening.
Also, for discussion of the indictment from the time it was first made public, see the AntiPolygraph.org message board thread Doug Williams of Polygraph.com Indicted. Comments may also be posted here. Registration is not required.
John R. Schwartz, who heads the U.S. Customs and Border Protection polygraph unit, claims that sophisticated polygraph countermeasures (the kind described in AntiPolygraph.org’s free book, The Lie Behind the Lie Detector), can be routinely identified “when all best practices are employed, including proper training of examiners and stringent Quality Control.” Schwartz made the claim in a January 2014 memorandum nominating his colleague and friend, Fred C. Ball, Jr., for the American Polygraph Association’s David L. Motsinger Horizon Award, which is presented annually “in recognition of a new shining star in the profession or association who early in their career demonstrates loyalty, professionalism and dedication to the polygraph profession (less than 10 years).”
Schwartz bases his nomination of Ball on the latter’s role as case agent in Operation Lie Busters, a federal criminal investigation targeting individuals providing training in how to pass polygraph tests. A copy of Schwartz’s memo was made available to AntiPolygraph.org and is reproduced in full below:
David L. Motsinger Horizon Award
Nomination of Fred C. Ball, Jr.
This accomplishment arguably represents the single most significant development in our profession in many decades. Its impact is profound and far reaching, and has already affected, or will affect, legal precedence, new polygraph case law, policies, scientific research, teaching, Quality Control, best practices and procedures, our view of polygraph validity, and many other aspects of forensic psychophysiology.
In 2011, a novel and complicated criminal investigation was initiated regarding the training of individuals in sophisticated polygraph countermeasures, and their effectiveness in defeating the polygraph protocols and procedures employed by federal, state, and local agencies including the court systems. The investigation revealed that sophisticated countermeasures can be routinely identified when all best practices are employed, including proper training of examiners and stringent Quality Control, but failure to endorse and employ these best practices results in the unacceptable risk that such countermeasures could be effective.
Popularly known as Operation LieBusters, the investigation combined novel and precedent-setting legal strategies, lengthy and technical undercover operations, voluminous and complicated analytical methodologies, complex investigative procedures, esoteric technical knowledge of polygraph countermeasures and physiology, and extremely effective interview and elicitation skills to ensure confirmatory confessions.
A graduate of the National Center for Credibility Assessment on April 6, 2011, Senior Special Agent Fred C. Ball, Jr. of the U.S. Customs and Border Protection, Credibility Assessment Division was the case agent and polygraph expert responsible for orchestrating and conducting the investigation. The three-year endeavor resulted in several arrests, convictions, and probation revocations at the federal, state, and local level. Of even greater significance to our national security and the safety of our citizens, the investigation identified and thwarted Insider Threats and infiltration attempts as well as many convicted sex offenders who had been able to continue their offenses through the use of polygraph countermeasures. The investigation also provides a unique data set, including ground truth data, which will be invaluable for scientific research and polygraph training, as well as an investigative blue print for future investigations.
Schwartz’s claim that sophisticated polygraph countermeasures can be routinely identified is noteworthy because to our knowledge, there is nothing in the polygraph literature that would support such a claim. On the contrary, polygraph countermeasure documentation published by AntiPolygraph.org in 2013 suggests that the polygraph community has no coherent methodology for detecting countermeasures.
On Friday, 17 January 2014, AntiPolygraph.org e-mailed Schwartz seeking comment, noting that if he could provide evidence that sophisticated countermeasures can indeed be routinely identified, we are prepared to withdraw any suggestion that examinees consider using countermeasures and to instead expressly advise against any such use. Schwartz did not respond.
It seems to AntiPolygraph.org that if sophisticated polygraph countermeasures truly could be “routinely identified,” as Schwartz claims, that there would have been no need for for Fred Ball to concoct an elaborate scheme to entrap and imprison Chad Dixon, an electrician who taught fewer than 100 people how to pass polygraph tests in his spare time, or to attempt to entrap former police polygraphist Doug Williams, who has been teaching people how to pass polygraph examinations since 1979. Nor would there have been any need for a polygraph watch list of Williams’ customers to be circulated among federal agencies with polygraph programs. Nor would there have been any need for the attempted entrapment of AntiPolygraph.org co-founder George Maschke, evidently by a U.S. government employee or contractor. Nor would the NSA feel the need to target visitors to AntiPolygraph.org.
Indeed, the very existence of Operation Lie Busters makes Schwartz’s claim that sophisticated countermeasures can be routinely identified difficult to believe. Who will polygraph the polygraphers?
On Friday, 12 April 2013, AntiPolygraph co-founder George Maschke sent an inquiry to U.S. Attorney General Eric Holder seeking clarification on whether the U.S. Department of Justice considers the learning, using, or teaching of polygraph countermeasures by or to federal employees or applicants for employment is a crime:
Date: Fri, 12 Apr 2013 12:38:55 +0000
To: Attorney General Eric Holder <AskDOJ@usdoj.gov>
Cc: DHS Secretary Janet Napolitano <email@example.com>, “DHS Acting Inspector General Charles K. Edwards” <firstname.lastname@example.org>, “CBP Deputy Commissioner Thomas S. Winkowski” <email@example.com>
Subject: Operation Lie Busters: Is Learning, Using, or Teaching Polygraph Countermeasures a Crime?
Dear Mr. Attorney General:
I’m a co-founder of AntiPolygraph.org, a non-profit, public interest website dedicated to polygraph policy reform. AntiPolygraph.org’s ultimate objective is the elimination of the exemptions to the Employee Polygraph Protection Act of 1988 that deny federal, state, and local government job applicants, employees, and contractors the protections against lie detector “testing” that other Americans have enjoyed for the past quarter century.
In 2002, the National Research Council concluded that “[polygraph testing’s] accuracy in distinguishing actual or potential security violators from innocent test takers is insufficient to justify reliance on its use in employee security screening in federal agencies.” In 1997, retired FBI Supervisory Special Agent Dr. Drew Richardson, then a polygraph expert with the Bureau’s Laboratory Division, put it more directly in testimony before a Senate subcommittee: “the diagnostic value of this type of testing is no more than that of astrology or tea-leaf reading.”
Rejecting the science on polygraphy, federal agencies have actually increased their reliance on it over the past decade. Pre-employment polygraph failure rates on the order of 50% or more are the norm among federal agencies with a polygraph requirement, and given polygraphy’s lack of scientific underpinnings, it is inevitable that many honest applicants are being falsely branded as liars by their government and wrongly blacklisted from employment for which they are qualified. Those falsely accused of deception have no meaningful avenue of appeal.
Since 2000, AntiPolygraph.org has made available a free book titled The Lie Behind the Lie Detector (1 mb PDF) providing documentation on polygraph validity (or lack thereof), policy, procedure, and countermeasures. Polygraph countermeasures are techniques that can be used to pass a polygraph whether or not one is telling the truth. While deceptive individuals can use countermeasures to fool the polygraph, truthful persons may also elect to use them to mitigate the high risk of a false positive outcome. AntiPolygraph.org has no desire to help liars beat the polygraph, but we know of no way of making such information available to honest persons with a legitimate need for it without also making it available to everyone. We believe that such speech is protected by the 1st Amendment of the U.S. Constitution.
The choice of a truthful person to use polygraph countermeasures is not an irrational one. The late David T. Lykken, an eminent authority on polygraphy, opined: “…if I were somehow forced to take a polygraph test in relation to some important matter, I would certainly use these proven countermeasures rather than rely on the truth and my innocence as safeguards. An innocent suspect has nearly a 50:50 chance of failing a CQT [Control Question Test — the technique used by federal law enforcement agencies for pre-employment screening] administered under adversarial circumstances, and those odds are considerably worse than those involved in Russian roulette.” (A Tremor in the Blood: Uses and Abuses of the Lie Detector, Plenum Trade, 1997, p. 277.)
No polygraph operator has ever demonstrated the ability to detect the kind of countermeasures we discuss in The Lie Behind the Lie Detector, and polygraph community documents recently released by AntiPolygraph.org show that the polygraph community has no coherent methodology for detecting such countermeasures.
Information has come to our attention suggesting that, unable to detect polygraph countermeasures, at least one federal agency is construing the teaching, learning, and/or use of them to be a crime, at least in some circumstances.
U.S. Customs and Border Protection (CBP) has revealed the existence of a criminal investigation called Operation Lie Busters in which 10 applicants for employment with CBP “were identified as receiving sophisticated polygraph Countermeasure training in an effort to defeat the polygraph requirement.” The CBP Public Affairs Office refused to answer any questions regarding Operation Lie Busters, including the name of the operation, which AntiPolygraph.org has independently learned.
AntiPolygraph.org has also learned that two senior investigators involved in the operation, John R. Schwartz, who heads CBP’s Credibility Assessment Division, and Special Agent Fred C. Ball, Jr., a polygraph examiner with CBP Internal Affairs, have been scheduled since the beginning of January to give a three-hour keynote presentation on the operation before members of a private polygraph organization on 3 June 2013.
If polygraph operators involved with Operation Lie Busters can showboat the operation at a polygraph convention, then the public should also be entitled to know details of this operation, which the CBP Credibility Assessment Division has characterized as “precedent setting” (without clarifying what precedent is being set). I thus seek clarity from you regarding the following questions:
Does the U.S. Department of Justice consider it a crime for federal employees or applicants for federal employment to learn about polygraph countermeasures?
Does the U.S. Department of Justice consider it a crime for federal employees or applicants for federal employment to use polygraph countermeasures?
Does the U.S. Department of Justice consider it a crime to teach federal employees or applicants for federal employment about polygraph countermeasures?