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.
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. [↩]
Applicants for employment with the Pennsylvania State Police will no longer be required to submit to the pseudoscientific ritual of polygraph screening. Angela Couloumbis reports for the Philadelphia Inquirer:
HARRISBURG – In a move sparking controversy, Pennsylvania State Police Commissioner Tyree C. Blocker has quietly scrapped the agency’s long-held practice of administering lie-detector tests to its recruits.
State Police officials confirmed this week that applicants vying to become state troopers will no longer undergo polygraph testing as part of an extensive background check that helps determine their acceptance into the State Police Academy.
A spokesman for the State Police would not say why Blocker ordered the change. The agency also could not immediately provide information on how many candidates fail the test annually, what kind of questions are asked, or whether it has been successful in the past in identifying red flags.
But two state officials familiar with the decision said Blocker told agency managers he believes the testing slows down the hiring process, leading the State Police to lose out on qualified candidates who end up taking jobs elsewhere. The two officials spoke on condition of anonymity because they were not authorized to publicly discuss the matter.
Blocker is facing pushback from troopers who believe eliminating the polygraph takes away an important tool the agency has used to weed out unqualified applicants.
Joe Kovel, president of the Pennsylvania State Troopers Association, called it a “bad idea.”
“Right now, people in society want to know that we are doing everything we can to ensure that the men and women we hire are of the outmost integrity – and the polygraph test has proven to be an important tool in determining that,” said Kovel.
He said he had expressed the concerns of his union’s membership – more than 4,000 troopers – to Blocker.
Pennsylvania State Troopers Association president Joseph R. Kovel’s misgivings about the decision to scrap the polygraph are misplaced. There is no evidence that polygraph screening results in a more honest police force. For example, there is no documentation that police forces in Pennsylvania, where polygraph screening is generally permitted, are any less honest than police forces in the neighboring state of New Jersey, where state law prohibits polygraph screening of police applicants.
Moreover, as more and more people in society come to understand that polygraph “testing” is a pseudoscientific fraud, the fact that police agencies rely on it in the hiring process will increasingly inspire the opposite of confidence.
Despite debate over the effectiveness and reliability of lie-detector tests, most federal, state and local law enforcement agencies use them when screening applicants. Candidates may be asked, for instance, about sexual activity, employers, past drug use, contact with criminals or legal actions against them.
There are exceptions: the New York City Police Department and the New Jersey State Police, for instance, do not use polygraphs in pre-employment screening.
But particularly at the federal level, the results can automatically disqualify applicants, said George Maschke, a onetime U.S. Army reserve intelligence officer and co-founder of AntiPolygraph.org, a non-profit website that questions the reliability and effectiveness of polygraph testing, as well as the science behind them.
In an interview, Maschke called the State Police’s decision to scrap the test “a wise one.”
He called the science behind them “junk,” and said they can easily be manipulated by knowledgeable applicants. Conversely, he said, the tests can also produce faulty results because the things they measure – such as changes in breathing, perspiration and blood pressure – often occur for reasons other than lying.
“Resentment at being asked an accusatory question, fear of not being believed even though you are telling the truth, embarrassment over being asked a personal question – all sorts of things could cause those changes,” said Maschke. “Even the tone of voice of the interrogators can produce that change.”
Pennsylvania State Police Commissioner Tyree C. Blocker is to be commended for his decision to terminate the long-held but invalid practice of polygraph screening. It is inherently biased against the truthful, resulting in many false positives, while liars can easily fool the polygraph using simple countermeasures that polygraph operators cannot detect. Other law enforcement agency leaders should take note and follow Commissioner Blocker’s example.
On 1 November 2016, Defense Intelligence Agency (DIA) director of security Michael P. Londregan published a notice that beginning in 2017, all DIA contractors whose work requires access to sensitive compartmented information will be required to pass a polygraph “test.” Excerpt:
On Jan. 1, 2017, DIA will begin implementing a phased change to its polygraph policy. All contractors or employees of contractors identified to perform work for DIA, and where the work requires access to sensitive compartmented information, must either successfully complete a counterintelligence-scope polygraph (CSP) examination (in accordance with Intelligence Community Policy Guidance 704.6 and Security Executive Agent Directive 2) or have on record a reciprocally acceptable polygraph examination from another federal agency priorto being granted unescorted access to DIA systems, facilities or information.
DIA will implement this policy change using the following schedule:
1 January 2017: National Capital Region (NCR) approximately 50-mile radius extending outward to Ft Meade, MD and Charlottesville, VA
1 April 2017: Continental United States (CONUS) including NCR contractors
1 July 2017: Outside CONUS including CONUS contractors and NCR
Regardless of geographical assignment, all polygraph testing will be scheduled through the special security officer (SSO), unit security officer (USO) or your contracting officer representative (COR), respectively, to the DIA Central Processing Center, Reston, Virginia.
Refusal without reasonable cause (as determined by the Director of Security for DIA) to undergo polygraph examination; failure to cooperate during a polygraph examination; or purposeful noncooperation during a polygraph examination — including confirmed use of polygraph countermeasures — could result in additional review or an adverse security determination.
It’s worth noting that the DIA polygraph screening program has never caught a spy. In 2001, DIA’s senior analyst for Cuban affairs, Ana Belen Montes, was arrested for, and ultimately pled guilty to, having been a Cuban spy. She had been trained by Cuban intelligence how to fool the polygraph, and she did precisely that throughout her DIA employment.
DIA contractors should pay special attention to the notice that “purposeful noncooperation during a polygraph examination — including confirmed use of polygraph countermeasures — could result in additional review or an adverse security determination. If, for example, you breath slowly and deeply during your polygraph “test” in an attempt to remain calm, your polygrapher may accuse you of attempting to use polygraph countermeasures. If you then acknowledge that you were breathing slowly and deeply in an attempt to remain calm so you could pass, that simple admission may be taken as “confirmed use of countermeasures.”
DIA polygraph case files leaked to AntiPolygraph.org suggest that DIA is unable to detect sophisticated polygraph countermeasures, that is, the kinds of things that an actual spy like Ana Belen Montes might be expected to employ. Instead, the “confirmed countermeasure cases” consist entirely of people doing things that no one who understands polygraph procedure would actually do.
For more on the pseudoscience of polygraphy, including tips on how to protect yourself against the random error associated with it, see our free book, The Lie Behind the Lie Detector.
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 an address to members of the Federalist Society at the South Texas College of Law that was posted to YouTube on 15 April 2016, Department of Defense (and probable NSA) polygraph operator Brian R. Morris mentioned that in the aftermath of NSA whistleblower Edward Snowden’s revelations, the Department of Defense tripled the number of polygraph screening examinations that it conducts annually. At 3:45 Morris begins speaking about polygraph screening and notes:
I got the number of internal exams that the DoD ran whether they’re applicants or current employees trying to maintain their security clearance, from May 2010 to April 2011, over 43,000 internal exams. That’s pre-Edward Snowden. Post-Edward Snowden, that number’s tripled….
This would indicate that the various DoD agencies with polygraph programs are currently conducting more than 129,000 polygraph examinations per year, a remarkably high number. It should be noted that as an NSA contractor, Edward Snowden was subject to polygraph screening and reportedly underwent two polygraph examinations in connection with that employment.
Morris also spoke about polygraph countermeasures in response to a question by an audience member at 35:35. Morris concedes that mental countermeasures to the polygraph (such as are outlined in AntiPolygraph.org’s free book, The Lie Behind the Lie Detector), are a “tough thing.” Morris mentioned AntiPolygraph.org directly and falsely implied that its co-founder, George Maschke, is living in The Netherlands to avoid criminal prosecution in the United States. (Maschke attended and reported on the trial of Doug Williams that Morris mentions.)
Woman: Can you beat the box?
Morris: Can you beat it? Could I? Or could anyone?
Woman: You talked about countermeasures. What do you have in mind for countermeasures. What does that term mean?
Morris: All right. Well, countermeasures is something that somebody is attempting to do to get a false negative, all right? And a false negative means they pass your test without being completely truthful. Now traditionally — I talked about Polygraph.org being a good website? If you go to AntiPolygraph.org [laughter] that’s a site run by George Maschke who’s a former…I think it was FBI or CIA applicant who failed multiple polygraph exams, did not get chosen based on the results of the polygraph exams, so he kind of made it his life’s mission to try to help people to [using air quotes] cheat on the polygraph, to be able to successfully get through. Now if you go look at where he is located, he is living in the Netherlands, because at this point, if you actually try and help somebody to cheat on a polygraph exam — Doug Williams, go Google Doug Williams — incarcerated. Former polygraph examiner who was helping people try to cheat on the exam, was getting paid to do it, and they prosecuted him, I think it was for perpetrating a fraud on the government in terms of trying to help people do that.
But the traditional way, I’m sure you’ve seen like, I don’t know, Ocean’s Eleven or Twelve, like put a tack in your shoe and step on it, wear rubber underwear, do an anal sphincter squeeze, you know these physical things, and that’s the whole point of this pad [holds up piezoelectric sensor pad] which has been, oh, about the last 10 or fifteen years, is that — make sure people are sitting still and not moving on the test.
Now the tough thing is, is when we deal with mental countermeasures. Somebody’s not physically moving, but they are trying to simulate things that would cause fear in them and generate a response. And if you imagine standing on the edge of the Grand Canyon with your back to it and closing your eyes, and just tipping of the back and falling, or that — being right at the top of a roller coaster just as it’s about to go over the edge, you can generate some massive electrodermal responses.
The problem is, unless you’ve got someone who can train you to say, “That’s a reasonable response” — I mean, if I’ve got this all right here [pointing to polygraph chart on screen], and I’m looking about, you know, this much is [inaudible] and all of a sudden I’ve got [inaudible] of my screen there, that response is too good to be true. It’s not a legitimate response. And so, while mental countermeasures are something we certainly pay attention to, somebody would have to be extremely sophisticated. And the other thing is that if somebody does countermeasures and they successfully get through, nobody’s going to tell you about that. They’re not going to go “Whoo! I lied and I beatcha!” “Thanks, you’re done!” [laughter] You know, that’s not gonna happen.
Morris suggests that mental countermeasures can be detected if a reaction is “too good to be true.” However, the polygraph literature is bereft of any evidence that any polygraph operator can detect mental countermeasures (or physical ones such as tongue biting). Extensive countermeasure training materials and federal case files leaked to AntiPolygraph.org show that polygraph operators have no reliable methodology for detecting the kinds of polygraph countermeasures outlined in The Lie Behind the Lie Detector or in Doug Williams’ manual, “How to Sting the Polygraph.”
Morris’s presentation may be viewed in its entirety below:
NSA Director Admiral Mike Rogers says that he hates polygraphs but nonetheless considers them “a good tool for us.”
Rogers made the remark during an appearance on Monday, 3 November 2014 at Stanford University in response to a question by professor of political science Scott Sagan, who asked what Rogers has done in terms of background checks, security clearances, and personnel reliability programs to preclude another security breach like Edward Snowden’s.
The first specific measure Rogers mentioned was polygraph screening, replying in relevant part (at 1:09:09 in the webcast):
So, I remind the workforce, we all signed up to a higher level of scrutiny and a higher level of security. We all know that that’s part of the job. We all agree to that. Whether it’s polygraphs, whole lots of other things that we do–I mean, I can’t stand ’em. I’ll be the first to admit I hate ’em, but it is as…but I acknowledge that it’s a good tool for us, and if I’m gonna do this, I go into it with my eyes open even though part of me goes, “Oh man, I’ve got to sit down and get wired to a machine.” ‘Cause we have one standard for all of us. It doesn’t matter if you’re the four-star running the organization, or you’re a junior individual. I’ve got one standard for all of us when it comes to the security framework.
Rogers seemingly ignores the fact that polygraph screening is completely without scientific basis and disregards the National Research Council’s conclusion 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.”
Rogers also seems to suggest that he’s setting an example for his employees: everyone from the highest to the lowest ranking at NSA has to take the polygraph. But it’s not really the same. When the director of the NSA sits for a polygraph “test,” it’s the polygrapher’s job that’s on the line. No director of the NSA need fear failing a polygraph. The same is not true for those further down the food-chain, for whom a false-positive outcome is a serious risk.
Of course, polygraph screening is not a policy instituted by NSA in response to Edward Snowden’s disclosures. NSA has been (mis-)relying on polygraphy for almost its entire history. It may be the case, however, that NSA has increased the frequency of polygraph screenings. In December 2013, Daniel W. Drezner, writing for Foreign Policy magazine, reported following a visit to NSA headquarters:
Snowden has also changed the way the NSA is doing business. Analysts have gone from being polygraphed once every five years to once every quarter.
Update: While DIRNSA Mike Rogers says he goes into polygraphs “with [his] eyes open,” the NSA has produced a video for employees and contractors that attempts to mislead them about key aspects of polygraph screening. And NSA-affiliated personnel who attempt to open their eyes about polygraphy by researching it online may have their web browsing history intercepted and presented to them during their polygraph sessions.
Marisa Taylor reports for McClatchy on the high failure rate of the FBI’s pre-employment polygraph screening program using, among other sources, a 198-page document containing complaints of discrimination associated with the Bureau’s polygraph program. Excerpt:
WASHINGTON — Thousands of job applicants come to FBI offices all across the country every year, eager to work for the top law enforcement agency in the U.S.
But many of them have their hopes dashed, and it’s not because of their work experience or education or criminal records. They’re turned down because they’ve failed their polygraph tests.
The FBI’s policy of barring job candidates who fail their polygraph tests clashes with the view of many scientists that government agencies shouldn’t be relying on polygraph testing to decide whether to hire or fire someone. Experts say polygraph testing isn’t a reliable indicator of whether someone is lying – especially in employment screening.
Further, a little-known technical glitch in one of the leading polygraphs that the bureau and many other government agencies have used could give applicants who fail polygraphs even more reason to assert that they were inaccurately and unfairly labeled liars.
“I was called a lazy, lying, drug dealing junkie by a man who doesn’t know me , my stellar background or my societal contributions,” wrote one black applicant in Baltimore, who said he was told he qualified for a job except for his polygraph test failure. “Just because I am young and black does not automatically denote that I have ever used any illegal drugs.”
Government agencies use polygraph testing not only to weed out job applicants but also to question criminal suspects and to determine whether sex offenders are complying with psychological treatment or probation.
Although all polygraph testing is controversial, many scientists are highly critical of its use in job screening, saying it’s especially prone to inaccuracies because the questions are often more vague than they are in criminal investigations and therefore they’re more likely to provoke reactions from the innocent that might seem like deception.
Adding to the skepticism, polygraphers have documented problems with the measurement of sweat by the LX4000, a polygraph that the FBI and many other federal agencies and police departments across the country have used, McClatchy found. Polygraphers also interpret measurements of respiration and blood pressure for their decisions on whether someone is lying, but many see the sweat measurement as especially indicative of deception. The manufacturer of the LX4000, Lafayette Instrument Co. Inc., describes the problem as rare but it isn’t able to specify what that means. The company also points out that other polygraphs that use the same technology might have the problem as well.
On 17 April 2013, Cuban intelligence officer Nicolás Alberto Sirgado Ros1 died at the age of 77 years according to a short notice published on 19 April by Granma, the official newspaper of the Cuban Communist Party. Cuban website CubaDebate published a lengthier profile of Sirgado, noting that he worked as a double agent for Cuba against the CIA for ten years beginning in 1966. Miami-based website CafeFuerte also profiles Sirgado, adding that “on three occasions, he was subjected to lie detector testing, without his real mission being discovered.”
Sirgado discussed his experience working against the CIA in an interview transcribed in a document titled “CIA: Cuba Accuses” that was published in English in Cuba in 1978. When asked “Did they ever use a lie detector on you?” Sirgado replied:
Yes, they used a lot of security measures. They used the lie detector three times. Sometimes there were lie detector sessions that were more than two and a half hours long.
Clearly, the CIA’s aim in using this method is not so much to find out whether or not you’re lying as to break you down, humiliate you, impose machine over mind. Whether or not it’s effective, the method really seeks to humiliate and denigrate. It’s a reflection of this espionage organization, built upon mistrust and of the lack of moral values to support its activities.
Sirgado is not the only Cuban double agent to fool the polygraph. DIA officer Ana Belen Montes passed the polygraph at least once while spying for Cuba. And former CIA officer Robert David Steele writes, “Two of my classmates got wrapped up in Cuba (and appeared on international television) because the Cuban double-agents all managed to pass the polygraph.”
In a class action appeal filed with the Merit Systems Protection Board, four military reserve officers allege that U.S. Customs and Border Protection (CBP) has engaged in a “continuous” and “wide-ranging pattern of harassment” against members of the U.S. Armed Services and National Guard, including targeting them with pre-employment polygraph screening, in violation of the Uniformed Services Employment and Reemployment Rights Act (38 U.S.C. § 4301 et seq.). The case is Ferguson, et al. v. Department of Homeland Security, et al., filed 15 February 2013.
One of the appellants, Jason Dutcher, was a lieutenant commander in the U.S. Navy Reserve when in June 2010 he applied for employment with CBP’s Office of Air and Marine. His application was rejected “ostensibly because he failed a polygraph examination.”
With regard to CBP’s pre-employment polygraph polygraph practices, the appeal alleges:
78. On information and belief, Appellant Dutcher and members of the Applicant Subclass were denied initial employment based on their membership in the United States Armed Services or National Guard.
79. On information and belief, and thereon alleged, polygraph examinations are or were administered to applicants with military service obligations at an unreasonably higher and inexplicably rate [sic] than to those applicants without military service obligations.
80. On information and belief, and thereon alleged, applicants with military service obligations fail the polygraph examinations at an unreasonably and inexplicably higher rate than do those applicants without military service obligations.
81. The Class’ obligations and membership in the uniformed services was and is a motivating factor in all discriminatory, harassing and hostile actions Appellees have taken against the Appellants.
The class that Dutcher seeks to represent includes “all those individuals who applied for employment at DHS, CBP and/or OAM between January 1, 1994 and the present who were not hired due to their military service obligations” (para. 101).
The appellants’ allegations also include:
129. Upon information and belief, Appellees have repeatedly made comments to members of the Applicant Subclass during the application process indicating that the applicant’s affiliation with the military made it difficult for Appellees to hire the applicant because the individual may have future military commitments.
130. Upon information and belief, Appellees have repeatedly refused to hire members of the Applicant Subclass because they may have future military obligations.
131. Upon information and belief, Appellees administer polygraph tests during the application process randomly, arbitrarily and at an unreasonably higher rate to members of the Applicant Subclass than to applicants with no military service affiliation.
132. Upon information and belief, an unreasonably and inexplicably higher percentage of applicants with military service affiliations fail the polygraph tests than do applicants with no military service affiliation.
133. USERRA requires employers to treat all applicants for employment similarly regardless of their military service affiliation and obligations.
134. By repeatedly discriminating against Appellant Dutcher and the Applicant Subclass through their refusal to hire members of the Applicant Subclass, Appellees have violated §4311 of USERRA.
135. Appellant’ Dutcher’s and the Applicant Subclass’ service obligations were a motivating factor in the discriminatory actions Appellees have taken against Appellant and the Applicant Subclass.