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.

The Inconvenient Issue of Alleged Anthrax Killer Bruce Ivins’ Polygraph Results

On Tuesday, 15 February 2011, the National Research Council made public its Review of the Scientific Approaches Used During the FBI’s Investigation of the Anthrax Letters, seriously undermining the Bureau’s case against U.S. Army researcher Bruce Ivins, whom the FBI maintains was the sole perpetrator of the anthrax mailings.

Polygraphy was not among the scientific approaches reviewed by the National Research Council–appropriately so, as it has no scientific basis. Nonetheless, the FBI did rely extensively on polygraphy in its investigation of the anthrax mailings, and Ivins passed a 2002 polygraph examination regarding the anthrax attacks. The FBI avers that Ivins passed the polygraph by using countermeasures.

Jeff Stein of the Washington Post addresses Ivins’ polygraph results in a new SpyTalk column titled, “Ivins Case’s Inconvenient Issue: His Polygraph.”

For prior commentary on Ivins’ polygraph examination, see “DOJ Rationalizes Away Polygraph’s Failure to Catch Alleged Anthrax Killer Bruce Ivins” and Scott Horton’s interview of AntiPolygraph.org co-founder George Maschke. For insightful commentary on the latest (non-polygraph related) developments in the Ivins case, see Salon.com columnist Glenn Greenwald’s article, “Serious Doubts Cast on FBI’s Anthrax Case Against Bruce Ivins.”

DOJ Rationalizes Away Polygraph’s Failure to Catch Alleged Anthrax Killer Bruce Ivins

Bruce E. Ivins
Bruce E. Ivins

On Friday, 19 February 2010, the U.S. Department of Justice announced the conclusion of its investigation into the 2001 anthrax attacks. The DOJ maintains that  Dr. Bruce Edwards Ivans, who in 2002 passed a polygraph test regarding the anthrax attacks, was the sole perpetrator.

In an investigative summary (640 kb PDF), the DOJ characterizes Ivins’ passing of the polygraph as part of an effort to “stay ahead of the investigation,” alleging (at p. 84, fn. 51) that he used countermeasures to fool the polygraph:

In some sense, Dr. Ivins’s efforts to stay ahead of the investigation began much earlier. When he took a polygraph in connection with the investigation in 2002, the examiner determined that he passed. However, as the investigation began to hone in on Dr. Ivins and investigators learned that he had been prescribed a number of psychotropic medications at the time of the 2002 polygraph, investigators resubmitted his results to examiners at FBI Headquarters and the Department of Defense Polygraph Institute for a reassessment of the results in light of that new information. Both examiners who independently reassessed the results determined that Dr. Ivins exhibited “classic” signs of the use of countermeasures to pass a polygraph. At the time the polygraph was initially examined in 2002, not all examiners were trained to spot countermeasures, making the first analysis both understandable under the circumstances, and irrelevant to the subsequent conclusion that he used countermeasures.

Although the summary doesn’t state what “classic” signs of countermeasures Ivins allegedly displayed, Michael Isikoff of Newsweek reported in 2008 that the FBI “concluded he’d used ‘countermeasures’ such as controlled breathing to fool the examiners.”

Continue reading DOJ Rationalizes Away Polygraph’s Failure to Catch Alleged Anthrax Killer Bruce Ivins

Justice Report: Standards Lacking on “Lie Detector” Tests

Jeff Stein, Congressional Quarterly’s national security editor, reports on the U.S. Department of Justice’s recently released report, “Use of Polygraph Examinations in the Department of Justice” (1 mb PDF). Excerpt:

The FBI and three other Justice Department components are conducting over 16,000 polygraph tests a year, even though they have no uniform standards for administering them, the department’s inspector general reported Monday.

The FBI requires job applicants and employees in sensitive positions to pass polygraphs as a condition of employment, even though their scientific basis and reliability have been sharply challenged in the past decade.

The FBI’s polygraph program failed to meet federal standards during 2003-2005, the inspector general (IG) said.

More than 49,000 polygraph examinations were conducted by the FBI, the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco and Firearms (ATF) and the office of the Inspector General (OIG) itself during that period, the report said.

The lion’s share of those — 77 percent, or 38,017 tests — were conducted by the FBI during 2003-2005.

Thousands more polygraph examinations –by the CIA, the military services, Pentagon agencies or other Justice Department components that do not have their own programs, such as the Bureau of Prisons and the U.S. Marshals Service–are conducted annually on subjects as varied as job applicants, employees, contractors, confidential sources and even participants in the Witness Protection Program.

“However, our review found no [Justice] Department-wide policy concerning the conduct and use of polygraph examinations,” the OIG said. “Rather, each Department component has developed its own policies, procedures, and practices to govern polygraph examinations.”

In 2004, the Justice Department’s Management Division concluded that without a uniform standard, agencies under its jurisdiction should not be able to “compel Department employees to take a polygraph in a misconduct investigation.”

Two years later, only the FBI among its components has codified its policies and procedures for making an employee submit to a polygraph, the report said.

Critics were quick to point out that the polygraph examinations can give the FBI a false sense of security.

Such infamous turncoats as the CIA’s Aldrich Ames and the FBI’s Robert Hanssen, both of whom spied for the Russians for years, passed routine polygraph examinations, where they were asked about their loyalty to the United States.

More recently, in May, an FBI intelligence analyst with a top secret clearance pled guilty in May to spying for Philippines officials.

Leandro Aragoncillo, who joined the FBI in 2004 after 21 years in the Marines, which included a stint in the office of the vice president, would have been asked about any unauthorized use of classified documents in a standard polygraph test.

The Senate Intelligence Committee’s review of pre-Iraq war intelligence also reported that three key Iraqi exiles who supplied false or misleading intelligence to the Pentagon all passed polygraphs.

None of these cases was part of the OIG’s study, which focused on the administration of polygraph programs, not the validity of the tests themselves.

For discussion of the DOJ report, see DOJ Report on Use of Polygraph Examinations on the AntiPolygraph.org message board.

Justice Department Inspector General Reviews Polygraph Policy

Steven Aftergood of the Federation of American Scientists’ Project on Government Secrecy reports in the Project’s Secrecy News e-mail publication:

JUSTICE DEPT INSPECTOR GENERAL REVIEWS POLYGRAPH POLICY

The Department of Justice Inspector General is undertaking a review of the use of polygraph testing throughout the Department.

“Polygraph examinations are used in criminal investigations and counterintelligence operations, as a pre-condition of employment or access to classified information, in background investigations, and in administrative misconduct investigations,” the IG noted in a new report to Congress.

“The review focuses on the legal authorities and statutory and regulatory requirements governing the use of polygraph examinations, Department policy and oversight of polygraph examinations, and Department compliance with federal and professional standards for managing polygraph examinations.”

See “Top Management Challenges in the Department of Justice 2004,” transmitted November 22, which addresses a host of issues facing the Department, including the Federal Bureau of Investigation:

http://www.fas.org/irp/agency/doj/oig/2004challenges.html

FBI whistleblower Sibel Edmonds has launched a petition drive calling for the declassification of a classified Inspector General report on her allegations of misconduct and incompetence in the FBI translation unit. See:

http://www.petitiononline.com/deniz18/petition.html

“Investigators Seek Lie Detector Tests in Terrorism Case”

Eric Lichtblau reports for the New York Times:

WASHINGTON, Sept. 3 – Justice Department investigators have sought to have senior federal prosecutors take polygraph examinations in an effort to determine who leaked the name of a confidential informant in a Detroit terrorism case that has become a major embarrassment for the department, officials said Friday.

At the same time, leading Congressional Republicans have raised concerns about the leak of the informant’s name and about the department’s handling of the case, which led a federal judge in Detroit this week to throw out the terrorism convictions of two Arab immigrants accused of being part of a cell there.

In a pointed letter sent to the Justice Department last month and obtained this week by The New York Times, Senator Orrin G. Hatch of Utah, chairman of the Senate Judiciary Committee and regarded as the department’s strongest advocate in Congress, questioned whether officials at the agency “are fully cooperating” in an investigation into the leak, “including submitting to polygraphs.”

Congressional officials said they were concerned that the department, which after an investigation has placed blame for the collapse of the Detroit case largely on a single prosecutor, Richard G. Convertino, appeared to have resisted the idea of requiring polygraph examinations for a small group of officials who had access to the name of the informant.

The informant’s name was published by The Detroit Free Press in January, in an article that gave a detailed account of accusations of ethical misconduct on the part of Mr. Convertino, the lead prosecutor in the case.

Among the accusations, which he has denied, was that he had improperly persuaded a judge to reduce the sentence of the drug dealer who served as the informant and who helped in translating Arab-language tapes seized in the defendants’ apartment.

The informant, an Arab man in his 30’s, said then in an interview with The Times that the disclosure of his cooperation with the Justice Department had caused him to fear for his life, forcing him to sleep in his truck for two nights. He later fled the country and returned to the Middle East as a result of the episode.

Justice Department officials in Washington and Detroit declined to discuss the status of the leak investigation, which is being conducted by the department’s inspector general. Asked whether prosecutors had agreed to take lie-detector tests, a spokeswoman for the United States attorney’s office in Detroit said Friday, “I can’t comment on that.”

In a court filing this week, Mr. Convertino was accused by the Justice Department of withholding from the defense numerous pieces of evidence that could have influenced the outcome of the terrorism case. The court threw out the convictions the next day.

Mr. Convertino, who was removed from the case late last year, has vigorously denied that he knowingly withheld any evidence and maintains that the Justice Department is retaliating against him because he cooperated with a Congressional investigation in an unrelated case. He says that he himself was victimized by the leak, which publicized information from his personnel file as well as the name of the informant.

And his lawyer, William Sullivan, said in an interview on Friday that some of the same prosecutors in Detroit whom he suspects of trying to discredit Mr. Convertino by leaking the name of the informant had taken part in the investigation into how the terrorism prosecution was conducted. He said those officials should have been recused from that inquiry.

The inspector general’s investigation into the disclosure of the confidential information is continuing, and in fact is near conclusion, a department official said.

Such investigations are notoriously difficult and time-consuming to resolve; a criminal investigation into the disclosure of an undercover C.I.A. officer’s identity to the columnist Robert Novak and other journalists is now in its ninth month.

Senator Hatch sent his letter to the Justice Department on Aug. 4, nearly a month before the Detroit terrorism case finally collapsed. In it, he said that he “was proud of the department’s hard work and successful prosecution of the Detroit terrorist cell” but that he was troubled by the deterioration of the case. He said he was also concerned about reports that Mr. Convertino and other members of the prosecution team had faced retaliation by the department as a result of conflicts over the course of the prosecution.

The senator urged that Mr. Convertino, who himself is being investigated by the department’s Office of Professional Responsibility, “be treated fairly,” and he asked to know “what protections are in place for O.P.R. investigators and staff to ensure that investigations are not used to further political bureaucratic and retaliatory measures.”

Mr. Hatch’s letter was unusual both for what it said and for who said it, because he has been an outspoken defender of the department and Attorney General John Ashcroft. The senator’s office declined to discuss his concerns on Friday.

Other lawmakers have also raised concerns. In joint letters to the department in April and May, Representatives F. James Sensenbrenner Jr., the Wisconsin Republican who heads the House Judiciary Committee, and John Conyers Jr. of Michigan, the panel’s ranking Democrat, questioned what sanctions could be applied to a federal employee who disclosed the name of an informant and whether steps had been taken to protect the Detroit informant after his identity was disclosed.

In a June response to Mr. Sensenbrenner and Mr. Conyers, the department did not discuss details concerning the Detroit informant but said that in general, if an informant’s identity is disclosed, “an immediate action would be removal of the informant from any operational or intelligence-gathering roles, followed by temporary or permanent relocation of the informant and his/her family, if applicable.”

While the leak of a confidential informant’s name is indeed embarassing to the Justice Department, so too should its attempted reliance on pseudoscientific polygraph “tests” in an effort to find the leaker.

“I-580 Sniper Suspect Set to Take Lie Detector Test”

Lisa Fernandez reports for the San Jose Mercury News. Excerpt:

The man accused of but never charged with being the prime suspect in a string of Feb. 23 shootings along Interstate 580 in the East Bay has agreed to take a polygraph test, hoping to show he wasn’t responsible, his public defender said.

Matt Bockmon, who represents Chris Gafford on unrelated drug charges, said Tuesday that during a federal court hearing last week, prosecutors announced that if Gafford passed the lie detector test next Tuesday it could have a “positive impact” on “another case.”

Assistant U.S. Attorney Rick Bender said he told the judge the test would “make the resolution simpler” of a federal drug case that is officially unrelated to the shootings. Bender wouldn’t talk about what would happen if Gafford failed the test, or about the inadmissibility of a lie detector test as evidence in court.

Assistant U.S. Attorney Rick Bender should know better than to place any reliance on the outcome of a pseudoscientific lie detector test. His willingness to do so casts doubt on his fitness for the job.