On 22 July 2003, Senators Charles Grassley and Patrick Leahy introduced Senate Bill 1440, the
"Federal Bureau of Investigation Reform Act of 2003." Title III of this bill would establish an FBI counterintelligence polygraph program.
Section 303(b)(1) directs the Attorney General, in prescribing regulations for the polygraph program, to "take into account the results of the Polygraph Review" of the Committee to Review the Scientific Evidence on the Polygraph of the National Academy of Sciences. But the main conclusion of that review
(The Polygraph and Lie Detection, National Academies Press, 2003) is that
"Polygraph testing yields an unacceptable choice for...employee security screening between too many loyal employees falsely judged deceptive and too many major security threats left undetected. Its 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" and that
"[o]verconfidence in the polygraph--a belief in its accuracy not justified by the evidence--presents a danger to national security objectives" (
p. 219, original emphasis).
As Dr. Kathryn Blackmond Laskey emphasized at the National Academy of Sciences' 8 October 2002 press conference announcing the polygraph review committee's findings, polygraph screening such as that contemplated by Senate Bill 1440 has never caught a single spy. On the other hand, spies like Karl Frantisek Koecher, Larry Wu-tai Chin, Aldrich Hazen Ames, and Ana Belen Montes
all beat the polygraph. Far from enhancing national security, Title III of S.B. 1440 will undermine it.
It is ironic that Senators Grassley and Leahy should direct the Attorney General to prescribe regulations for a polygraph screening program taking into account the findings of the NAS report, when that report finds precisely that such screening programs should not be implemented! Have these Senators gone daft?
Here is the full text of Title III of S.B. 1440:
TITLE III--FBI COUNTERINTELLIGENCE POLYGRAPH PROGRAM
SEC. 301. DEFINITIONS.
In this title:
(1) Polygraph program.--The term ``polygraph program''
means the counterintelligence screening polygraph program
established under section 302.
(2) Polygraph review.--The term ``Polygraph Review'' means
the review of the scientific validity of the polygraph for
counterintelligence screening purposes conducted by the
Committee to Review the Scientific Evidence on the Polygraph
of the National Academy of Sciences.
SEC. 302. ESTABLISHMENT OF PROGRAM.
Not later than 6 months after the date of enactment of this
Act, the Attorney General, in consultation with the Director
of the Federal Bureau of Investigation and the Director of
Security of the Federal Bureau of Investigation, shall
establish a counterintelligence screening polygraph program
for the Federal Bureau of Investigation that consists of
periodic polygraph examinations of employees, or contractor
employees of the Federal Bureau of Investigation who are in
positions specified by the Director of the Federal Bureau of
Investigation as exceptionally sensitive in order to minimize
the potential for unauthorized release or disclosure of
exceptionally sensitive information.
SEC. 303. REGULATIONS.
(a) In General.--The Attorney General shall prescribe
regulations for the polygraph program in accordance with
subchapter II of chapter 5 of title 5, United States Code
(commonly referred to as the Administrative Procedures Act).
(b) Considerations.--In prescribing regulations under
subsection (a), the Attorney General shall--
(1) take into account the results of the Polygraph Review;
and
(2) include procedures for--
(A) identifying and addressing false positive results of
polygraph examinations;
(B) ensuring that adverse personnel actions are not taken
against an individual solely by reason of the physiological
reaction of the individual to a question in a polygraph
examination, unless--
(i) reasonable efforts are first made independently to
determine through alternative means, the veracity of the
response of the individual to the question; and
(ii) the Director of the Federal Bureau of Investigation
determines personally that the personnel action is justified;
(C) ensuring quality assurance and quality control in
accordance with any guidance provided by the Department of
Defense Polygraph Institute and the Director of Central
Intelligence; and
(D) allowing any employee or contractor who is the subject
of a counterintelligence screening polygraph examination
under the polygraph program, upon written request, to have
prompt access to any unclassified reports regarding an
examination that relates to any adverse personnel action
taken with respect to the individual.
SEC. 304. REPORT ON FURTHER ENHANCEMENT OF FBI PERSONNEL
SECURITY PROGRAM.
(a) In General.--Not later than 9 months after the date of
enactment of this Act, the Director of the Federal Bureau of
Investigation shall submit to Congress a report setting forth
recommendations for any legislative action that the Director
considers appropriate in order to enhance the personnel
security program of the Federal Bureau of Investigation.
(b) Polygraph Review Results.--Any recommendation under
subsection (a) regarding the use of polygraphs shall take
into account the results of the Polygraph Review.
