Kyriakos Kotsoglou on Polygraphs in the British Legal System

Kyriakos N. Kotsoglou (Twitter profile)

In episode 102 of the legal podcast Excited Utterance, Vanderbilt University law professor Edward K. Cheng (@edwardkcheng) interviews Northumbria University senior lecturer in law Kyriakos N. Kotsoglou (@Kyri_Kotsoglou) about the use of polygraphs in the United Kingdom, with an emphasis on Kotsoglou’s new article, “Zombie Forensics: the use of the polygraph and the integrity of the criminal justice system in England and Wales,” International Journal of Evidence and Proof, 2021 (1): 16-35.

Edward K. Cheng (Twitter profile)

Kotsoglou addresses the systemic problems associated with a justice system embracing such a pseudoscientific technique as polygraphy. His critique is of relevance for policymakers everywhere.

The Guardian’s Ian Sample on Polygraph Use by the British Ministry of Justice

The Guardian’s science editor, Ian Sample, sits for a polygraph “test” and reports on the British Ministry of Justice’s growing reliance on the pseudoscience of polygraphy. Excerpt:

The Ministry of Justice introduced compulsory lie detector tests for sex offenders in 2014. But now the controversial technique is poised to become more widespread in the British justice system.

The domestic abuse bill and the counter-terrorism and sentencing bill, both passing through the Lords, provide for regular, mandatory testing of domestic abuse offenders, suspected terrorists and convicted terrorists on release. While failing a test would not in itself mean prison time, fresh disclosures, investigations prompted by failed tests, attempting to beat the polygraph, refusing a test or remaining silent in a test, could all trigger a recall. Loss of liberty in such circumstances is determined not by court but by probation officers, the former lord chief justice, Lord Thomas, has noted. Tests are expected to start in the spring.

For Don Grubin, emeritus professor of forensic psychiatry at Newcastle University and director of Behavioural Measures which runs the Heaton Mount training course, the polygraph is a means of gaining fresh information, an additional tool to help manage offenders. “What you’re looking for is information to indicate there’s an increased risk,” he says. But debate in the Lords and beyond has raised serious questions around the polygraph’s place in the legal system.

Marion Oswald, vice-chancellor’s senior fellow in law at Northumbria University calls the polygraph “an oppressive interrogation tool”, a phrase Grubin finds “over the top”. Oswald wants an immediate moratorium on polygraphs, an independent review of their usage across police forces and the probation service, and if tests resume, continuing independent oversight. “There’s a really high risk of people relying too much on these polygraph outputs,” she says. But Grubin argues there’s no evidence of this being an issue, adding that the risk is no greater than for other measures, such as criminal record checks and tagging.

It is not “over the top” to characterize the polygraph as “an oppressive interrogation tool.” It is precisely that. Indeed, former police polygraph operator Doug Williams has aptly characterized the polygraph as a “psychological billy club.”

Because polygraphy has no scientific basis, any reliance on polygraph chart readings is over-reliance.

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

Joint Terrorism Task Force Members Balk at FBI Polygraph Testing

Paul Bedard of U.S. News & World Report comments in his Washington Whispers column:

“Oh, no you won’t” is the reaction of cops and other first responders to an almost rude FBI decision to ask its Joint Terrorism Task Force members to take a lie detector test. To the FBI, it’s a smart move: Since 9/11, the task force of federal and local officials has expanded to some 1,500 in over a hundred offices nationwide. But to some members it’s a slap, and something that could hurt their careers if the polygraph–whose accuracy is widely questioned by scientists–burps out an error. Joining local cops in opposition are agents with the Homeland Security Department’s Immigration and Customs Enforcement.

For related commentary on the AntiPolygraph.org message board, see  FBI Testing Local Cops….

FBI Reliance on Polygraph Delayed Finding of Nichols’ Explosives Cache

The Associated Press reports in a story published by MSNBC.com under the title, “FBI at first dismissed tip on Nichols explosives.” Excerpt:

WASHINGTON – The FBI initially dismissed a tip that convicted bomber Terry Nichols had hidden explosives and they might be used for an attack this month coinciding with the anniversary of the Oklahoma City bombing.

While the FBI has found no evidence supporting the idea that an attack is in the works for the April 19 tenth anniversary, the information that explosives had been hidden in Nichols’ former home in Herington, Kan., turned out to be true.

The tip came from imprisoned mobster Gregory Scarpa Jr., 53, a law enforcement official said this week. Scarpa is an inmate in the same maximum-security federal prison in Florence, Colo., where Nichols is serving life sentences for his role in the 1995 bombing of the Alfred Murrah federal building that killed 168 people. Timothy McVeigh was convicted of federal conspiracy and murder charges in the bombing and executed in 2001.

Scarpa learned about the explosives from Nichols, mainly through notes passed between them, said Stephen Dresch, a Michigan man who is Scarpa’s informal advocate.

Source failed lie detector test
Dresch gave the information to the FBI in early March. But FBI agents did not search the vacant house until March 31. The bureau did not act more quickly because Scarpa failed a lie detector test, said the law enforcement official, who declined to be identified because of the sensitivity of the investigation.

The FBI lab continues to examine the materials for fingerprints and other clues that might show where the explosives originated and who may have had them before they got into Nichols’ home.

Scarpa, a member of the Colombo organized crime family serving 50-plus years on drug trafficking, conspiracy and racketeering convictions, first communicated information about the explosives on March 1, then provided more details on March 10 and 11, Dresch said in letters sent to the staffs of two members of Congress and to the FBI’s Detroit office. Scarpa revealed the location of the house on March 11, Dresch said.

The first letter said Scarpa learned from another prisoner, assumed by Dresch to be Nichols, “the location of a bomb on U.S. soil.” The second described two rock piles in the crawl space beneath Nichols’ former home. Under one, it said, were cardboard boxes wrapped in plastic. Those details match what the FBI said it found.

The FBI should use actual investigation instead of the make-believe science of polygraphy to evaluate tips. The 1993 bombing of the World Trade Center might have been averted had not the FBI terminated a well-placed confidential informant, in part because of inconclusive polygraph results. The FBI’s foolish reliance on polygraph screening has also cost it the services of at least one other confidential informant.

Canada: “Terror Suspect Passed Lie Detector Test, Expert Says”

The following Canadian Press report was published on GlobeandMail.com:

Montreal — A polygraph expert testified Monday that he believes suspected sleeper agent Adil Charkaoui told the truth when he denied in a lie detector test having any links to terrorists.

Mr. Charkaoui, who has been in detention since May, 2003, on a national security certificate, was making another attempt in Federal Court to get bail.

Polygraph expert John Galianos told the court he believes Mr. Charkaoui answered all questions truthfully during the Nov. 17 test. Mr. Charkaoui was asked to respond to the federal government’s allegations that he knew al-Qaeda terrorists and trained with them in Afghanistan in the 1990s.

“It is my opinion that Mr. Charkaoui told the truth when he responded to questions pertinent to the inquiry,” Mr. Galianos said. “Mr. Charkaoui had no unusual physical reactions to the questions.”

Mr. Charkaoui, a 31-year-old permanent resident of Canada, was to testify in his own defence later on Monday.

Mr. Galianos acknowledged under cross-examination that polygraph tests are not foolproof.

Under questioning from Justice Department lawyer Daniel Roussy, the former Sûreté du Québec officer said the test’s accuracy depends on the phrasing of the questions.

Mr. Charkaoui was asked five questions during the test: whether he planned to tell the truth, whether he trained in terrorist camps, if he was ever a member of a terrorist network, if he was currently a member of a terrorist network and whether he had ever planned attacks.

He responded “No” to all of the questions, Mr. Galianos said.

But Mr. Roussy pointed out Mr. Charkaoui was never asked whether he had handled firearms or if he knew people who may have committed violent acts.

Outside the courtroom, Mr. Roussy said the test result would have no effect on the government’s position.

“He still represents a danger to the Canadian public and he’s a threat.”

The government suspects Mr. Charkaoui of being an agent who could be activated by al-Qaeda at any time.

A final decision on whether to deport him to his native Morocco still has to be made.

Under the security-certificate rules, the federal government can hold suspects – and eventually deport them – without disclosing the evidence it has against them. Suspects’ lawyers are also denied a chance to cross-examine government representatives.

The Federal Court of Appeal recently upheld the constitutionality of the security-certificate process, saying individual rights must sometimes be suspended to preserve national security and protect Canadians’ safety.

Not only are polygraph “tests” not foolproof, as polygrapher John Galianos conceded, but they have no scientific basis whatsoever. It is worth noting that the Encyclopedia of Jihad, a training manual for Al-Qaeda insurgents, explains that the lie detector is a sham.

“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.

“Atlas Researches, Ltd. Awarded Contract for a Polygraphy Chair”

The Defense Department’s Technical Support Working Group made the following announcement on 1 June 2004:

June 1, 2004 – The Investigative Support and Forensics (IS&F) subgroup of TSWG began a DHS-funded task for the development of a polygraphy chair and associated software. Atlas will develop a standoff measurement system that can unobtrusively gather physiological and/or behavioral data in real-time and characterize the level of potential threat based on the recorded measures.

Atlas Researches, Ltd., Hod Hasharon, Israel, will receive $744,528 for the 16 month effort.

“That’s No Lie: Wireless Polygraph on the Way”

Oded Hermoni reports for Ha’aretz:

The American government is funding the development of new technology for a polygraph machine that is capable of identifying whether a person is telling the truth, without physically attaching him to the equipment. There are also plans to develop a mat of sensors that will be used in airports to test the answers of passengers during questioning.

The technology, developed by an Israeli high-tech company, uses external sensors that cause minimum physical discomfort to the person being interrogated.

The Technical Support Working Group of the American Homeland Security authorized a grant of $750,000 earlier this week to fund the project, a joint venture of the Israeli Atlas and the American Whizsoft. The research and development stage is expected to be completed in 16 months with a single prototype that will be tested.

Atlas, an Israeli R&D company operating since 1977 which specializes in the analysis of psychophysiological phenomena and their impact, works mostly in outsourcing functions for medical equipment for both Israeli and foreign companies, but also for the Defense Ministry.

Atlas is joining the wave of dual-use technologies whose origins are in medical treatment and are also being used in the development of anti-terror equipment.

According to Gideon Miller, an adviser to Atlas in the project, what is unique in this project is the ability to process the information in real time and the ability of the sensors to evaluate from a distance the condition of the person interrogated.

This $750,000 grant seems to be made in connection with a Technical Support Working Group (TSWG) Broad Agency Announcement that was reported in Polygraph News on 23 October 2001. That announcement stated in relevant part:

R-111 Ports of Entry Passenger Screening Aid

Develop a deception detection device for use with counterterrorism based structured interviews for passengers of the various modes of transportation. The system should apply known relationships between electrodermal activity and the detection of deception in a polygraph to a portable device. Consideration will be given to alternate approaches and sensors. Emphasis should be placed on processing time.

The quest for a non-invasive lie detector for screening passengers seems to have been a knee-jerk reaction to the events of September 11, 2001. The TSWG should heed the finding of the National Academy of Sciences that polygraph screening is completely invalid and that further investments in polygraph research are likely to produce at best only modest improvement.