CBP Polygraph Chief John R. Schwartz Claims “Sophisticated Countermeasures Can Be Routinely Identified”

john-r-schwartz
U.S. Customs and Border Protection Internal Affairs Credibility Assessment Division Director John R. Schwartz (detail from organizational chart)

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.

AntiPolygraph.org makes information about polygraph countermeasures available to the public to provide truthful individuals with an option for protecting themselves against the significant risk of a false positive outcome.

AntiPolygraph.org also e-mailed National Center for Credibility Assessment director William F. Norris and American Polygraph Association president Chuck Slupski seeking comment on Schwartz’s claim that sophisticated polygraph countermeasures can be routinely identified. Neither replied.

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?

Open Letter to Eric Holder Regarding Operation Lie Busters and Polygraph Countermeasures

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
From: maschke@antipolygraph.org
To: Attorney General Eric Holder <AskDOJ@usdoj.gov>
Cc: DHS Secretary Janet Napolitano <janet.napolitano@dhs.gov>, “DHS Acting Inspector General Charles K. Edwards” <charles.edwards@dhs.gov>, “CBP Deputy Commissioner Thomas S. Winkowski” <thomas.winkowski@dhs.gov>
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:

  1. Does the U.S. Department of Justice consider it a crime for federal employees or applicants for federal employment to learn about polygraph countermeasures?
  2. Does the U.S. Department of Justice consider it a crime for federal employees or applicants for federal employment to use polygraph countermeasures?
  3. Does the U.S. Department of Justice consider it a crime to teach federal employees or applicants for federal employment about polygraph countermeasures?

 

Sincerely,

George W. Maschke, Ph.D.
AntiPolygraph.org
Tel: 1-424-835-1225
Fax: 1-206-426-5145
Twitter: http://twitter.com/ap_org

PS: I am an American living abroad. My postal address is Van Trigtstraat 53, 2597 VX The Hague, The Netherlands.

New Law Enforcement Polygraph Handbook

Polygraph Law Enforcement AccreditationAs the American Polygraph Association holds its annual seminar in Austin, Texas this week, one of the topics on the agenda is a program run by a consortium of federal, state, and local law enforcement agencies called “Polygraph Law Enforcement Accreditation” (PLEA). Participating agencies include the Customs and Border Patrol (CBP), the Defense Criminal Investigative Service (DCIS), the Los Angeles Police Department (LAPD), and the Houston Police Department.

The PLEA consortium, whose motto is “Semper Veritas” (truth always), has promulgated a 65-page “Polygraph Guide for Standards and Practices” that sets forth procedures and protocols to be used by participating agencies. AntiPolygraph.org has received a copy of this guide, each page of which is marked “Law Enforcement Sensitive Information,” and has made it available for download here (1.9 MB PDF). Chapter 10 will be of special interest to applicants for employment with agencies participating in the PLEA consortium.