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.
CBP has a pre-employment polygraph failure rate on the order of 60%, and many qualified applicants are falsely accused of lying and are blacklisted from CBP employment based on scientifically baseless polygraph results. If Senate Bill 1560 becomes law, we can expect a similar outcome at ICE.
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.