On 29 June 2006, the U.S. Government filed a motion to vacate a plea agreement reached with Donald Willis Keyser, a senior State Department official who on 12 December 2005 pled guilty to one count of removal of United States documents in violation of Title 18, United States Code, 2071(b) and two counts of making false statements in violation of Title 18, United States Code, Section 1001(a). Although none of these counts involved espionage, the FBI clearly suspected Keyser of being a spy for Taiwan, and as part of the plea agreement, Keyser agreed to cooperate "fully, truthfully, and completely with the United States, and provide all information known to the defendant regarding any criminal activity and intelligence activity by himself and/or others."
As in many plea agreements reached in national security (and other) cases, Keyser agreed to be polygraphed and "stipulate[d] to the admissibility of the results of this polygraph examination if lated offered in a proceeding to determine the defendant's compliance with this plea agreement."
Indeed, in a "Memorandum in Support of Motion to Find Defendant in Material Breach of Plea Agreement and to Release the Government from its Plea Obligations" dated 5 July 2006, United States Attorney Chuck Rosenberg cites, among other things, polygraph "evidence" to bolster its contention that Mr. Keyser failed to cooperate. The memorandum may be downloaded here:
http://www.fas.org/irp/ops/ci/keyser070506.pdf The polygraph interrogation of Mr. Keyser is addressed at pp. 21-24, which are cited here:
Quote:On February 14, 2006, an FBI polygrapher administered a polygraph exmination to the defendant. Prior to the examination, the polygrapher (an experienced agent) interviewed the defendant extensively about a wide range of subjects, including the defendant’s travel to Taiwan in 2003. During that pre-test interview, the defendant maintained that he did not meet with anyone other than Cheng during his stay in Taiwan. During the polygraph examination, the defendant was asked the following questions:
1. Did you meet with anyone other than Isabelle [Cheng] in Taiwan?
2. Did you ever illegally provide classified information to any foreign intelligence service? “The defendant answered “No” to both questions. As to both questions, the polygrapher found that deception was indicated.
A few weeks after the polygraph examination, the U.S. Attorney’s Office learned of intelligence information relating to the defendant’s travel to Taiwan in 2003.17 As a result of this information, the defendant was questioned again on March 28, 2006, about his activities in Taiwan. In that debriefing, which was recorded on tape with the defendant’s knowledge and consent (and in the presence of defense counsel), the following exchanges with the defendant occurred:
Agent: [W]ho did you meet with when you went to...Taiwan?
Defendant: Just Isabelle Cheng
Agent: [Are] you sure that Isabelle Cheng is the only person you met with?
Defendant: I’m certain.
....
Agent: So the only person you decided to see while you were in Taiwan in 2003 was a known intelligence officer of the NSB. Is that what you’re saying to us today?
Defendant: The only person I saw when I was there was Isabelle Cheng.
....
Agent: You didn’t meet with any head of the NSB?
Defendant: No. No. I did not.
Based on U.S. intelligence information and other evidence, the government continued to find that the defendant’s statements regarding his conduct in Taiwan were not credible. Consequently, the FBI administered a second polygraph examination to the defendant on April 5, 2006.18 In that examination, the defendant was asked two questions:
1. Other than Isabelle [Cheng], did you meet with anyone from the Taiwanese Government during your 2003 trip to Taipei?
2. Other than Isabelle, did you meet with anyone from the NSB during your 2003 trip to Taiwan?
The defendant answered “No” to both questions. Once again, the polygrapher found that deception was indicated in both of the defendant’s responses.
Immediately after the polygraph examination, the agent who administered the examination questioned the defendant further about individuals with whom he had contact during his 2003 trip to Taiwan. The defendant maintained that he had contact in Taiwan only with “clerks, shopkeepers,” and similar individuals during his stay in Taiwan. When pressed further on this subject, the defendant said he wanted to have his attorney present.19 He again claimed, however, that he did not meet with anyone in Taiwan other than Isabelle Cheng.20
The intelligence information in the government’s CIPA [Classified Intelligence Procedures Act] motion and the defendant’s two failed polygraph examinations, without more, warrant a finding by the Court that the defendant has breached his obligations under the Plea Agreement to provide full and truthful cooperation regarding his dealings with Isabelle Cheng and the NSB. See United States v. Wakefield, 112 Fed. Appx. 257, 258-59 (4th Cir. 2004) (defendant’s failure of polygraph constituted breach of cooperation obligation and relieved government of obligations under plea agreement) (unpublished); United States v. Gore, 93 Fed. Appx. 569, 570 (4th Cir. 2004) (where plea agreement contained language that defendant’s failure to pass polygraph “would result in the Government’s obligations becoming null and void at its discretion,” government was not bound by plea agreement) (unpublished); United States v. Morrisson, 1996 WL603248, at *2 (4th Cir. 1996) (upholding the admission of polygraph results at sentencing to determine whether defendant had fulfilled his obligations under the plea agreement, including his entitlement to a downward departure); United States v. Levaur, 1999 WL 22887, at *2 (4th Cir. 1999) (failed polygraph examination provided a legitimate objective basis for finding that defendant had breached his plea agreement)....
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17 This information was set forth in the government’s June 29, 2006, classified, ex parte motion under the Classified Information Procedures Act, 18 U.S.C. App. 3.
18 The same agent who administered the polygraph examination on February 14, 2006, also administered the second polygraph examination. He is prepared to testify at an evidentiary hearing regarding his methodology and analysis. As discussed above, in the Plea Agreement the defendant stipulated to the admissibility of the results of polygraph examinations “if later offered to determine the defendant’s compliance with this plea agreement.” Plea agreement ¶ 5c.
19 According to established FBI policy, defense counsel may not be present during the administration of a polygraph examination because of the adverse impact their presence can have on the conduct and results of the examination.
20 The defendant has not been questioned further about his activities in Taiwan since the April 5, 2006 polygraph examination, and the questioning that occurred immediately after that examination.
Given that polygraphy has
no scientific basis and inherently biased against truthful persons (the more candidly one answers the "control" questions, and as a result feels less anxiety when answering them, the more likely one is to "fail"), despite the stipulation agreement any any judicial precedent, the court should accord no weight whatsoever to the results of Mr. Keyser's polygraph examinations in reaching a decision on the Government's motion.
Background information on the Keyser case is available on the website of the
Centre for Counterintelligence and Security Studies here:
http://www.cicentre.com/Documents/DOC_Donald_Keyser_Case.htm
