Use of the Polygraph in Security Clearance Investigations
Background and Current Practice
On March 31, 1998, a divided Supreme Court, in United States v. Scheffer, held that the results of a polygraph exam could be banned from use in a criminal trial by either side because there is simply no consensus that polygraph evidence is reliable. The court found that the scientific community and the state and federal courts are extremely polarized on the matter.251 The Scheffer case resulted from a court martial in which the defendant had attempted to introduce the results of a polygraph in support of his testimony that he did not knowingly use drugs. The government in that case argued against its reliability. Five of the concurring and dissenting justices noted: "there is much inconsistency between the Government's extensive use of polygraphs to make vital security determinations, and the argument it made in that case stressing the inaccuracy of these tests."252 The majority of the court found nothing inconsistent, however, in the polygraph's use by the government for personnel screening and as a tool in criminal and intelligence investigations because, it said, such limited out-of-court uses of polygraph techniques differ in character from, and carry less severe consequences than, the use of polygraphs as evidence in a criminal trial.253
The court noted that between 1981 and 1997, the Department of Defense conducted over 400,000 polygraph examinations to resolve issues arising in counterintelligence, security, and criminal investigations. Justice Stevens, in a dissenting opinion, supported its use by DoD because, he said, its polygraph operators were trained in its own Polygraph Institute, "which is generally considered the best training facility for polygraph examiners in the United States."254 The Supreme Court's opinion has put to rest any argument against the continued use of this technique as a tool in national security investigations.
The courts are divided on whether to admit evidence obtained during a polygraph, some disallowing it on the basis that it is not scientifically valid, others leaving it to the discretion of the trial judge. The Supreme Court continues to leave the question of its admissibility to the individual courts, deciding only that a blanket exclusion in criminal proceedings is not unconstitutional.
In a criminal case, statements made during a polygraph exam are not admissible unless given voluntarily, because of the Constitutional protections of the Fifth and Fourteenth Amendments.255 However, the denial of a security clearance or of access to classified information, or the denial or loss of employment because of the withholding of a security clearance, is not a criminal sanction, so the Fifth Amendment right against self-incrimination offers no protection even if a polygraph test is required as a prerequisite.
Use in Security Investigations
The use of the polygraph in security clearance investigations has a long and controversial history. Even before the Scheffer case, there was a well-reported divergence of opinion regarding its validity. The 1997 Report of the Commission on Protecting and Reducing Government Secrecy summarizes this divergence of opinion stating:
Senior officials from agencies that use the polygraph see it as a significant tool because of its utility in generating admissions of wrongdoing, either during the pre-test, test, or post-test period. The polygraph saves time and money, and it serves as a deterrent by eliminating some potential applicants from seeking a highly sensitive position in the first place. The polygraph examination is conducted before the background investigation, saving additional resources should the applicant be rejected as a result of polygraph admissions. According to a May 1993 NSA letter to the White House, over 95% of the information the NSA develops on individuals who do not meet federal security clearance guidelines is derived via voluntary admissions from the polygraph process.256
The report notes that not only do many senior Intelligence Community officials believe that the polygraph is useful, but they also believe that it is scientifically valid. It further notes the reservations that many others have for using the polygraph as a fact-finding tool stating:
Although the polygraph is useful in eliciting admissions, the potential also exists for excessive reliance on the examination itself. A related concern is that too much trust is placed in polygraph examiners' skills, creating a false sense of security within agencies that rely on the polygraph. The few Government-sponsored scientific research reports on polygraph validity (as opposed to its utility), especially those focusing on the screening of applicants for employment, indicate that the polygraph is neither scientifically valid nor especially effective beyond its ability to generate admissions (some of which may not even be relevant based on current adjudicative criteria).257
A 1989 Department of Defense Polygraph Institute (DoDPI) study found that 60 percent of subjects were incorrectly cleared in a test that measured the subject's knowledge or guilt of a crime. The results of this test concluded that the ability to identify those guilty or knowledgeable of a crime was significantly worse than chance.258 The Supreme Court, in the Scheffer case, referred to various studies that placed accuracy from 50 percent to 90 percent.259
Use of the Polygraph by Federal Agencies
The use of the polygraph in federal personnel investigations was formalized in an interagency report dated July 29, 1966, with the concurrence by Memorandum of President Lyndon B. Johnson. The rules adopted then continue today.260 An Executive Branch agency, which has a highly sensitive intelligence or counterintelligence mission directly affecting the national security, may use the polygraph for employment screening and personnel investigations. First, its use must receive approval of OPM, and then, its regulations governing the use of the polygraph must be approved by OPM. A later National
Security Decision Directive, NSDD-84, approved the use of the polygraph for screening individuals with access to code word information.261
The Presidential memorandum required that an agency's regulations must provide that the person to be examined be informed: (a) as far in advance as possible of the intent to use the polygraph, (b) of other devices such as voice recording that will be used simultaneously with the polygraph, (c) the effect the polygraph examination or the refusal to take it will have on eligibility for employment, (d) that a refusal to consent would not be made a part of the personnel file, (e) the characteristics and nature of the polygraph machine and examination and an explanation of its physical operation and (f) the procedures to be followed during the polygraph and the disposition of the information developed.262 Agency regulations further must require that no polygraph examination be given unless the subject voluntarily consents in writing after having been informed of the above requirements that the questions asked be relevant to the inquiry. A number of federal agencies require applicants to undergo a polygraph exam as part of the hiring process for employment screening; they are the Central Intelligence Agency, the Defense Intelligence Agency, the Drug Enforcement Agency, the Federal Bureau of Investigation, the National Security Agency, and the National Reconnaissance Office.263 A few positions in the Department of Justice Command Center also require preemployment polygraphs because of their access to cryptographic information. The White House, National Security Council, State Department, and Congress have not adopted polygraph screening. Even among the agencies that use the polygraph, the scope, methods, and procedural safeguards may diverge.264
Use of the Polygraph by the Department of Defense
The use of the polygraph for any Department of Defense program is governed by DoD Directive 5210.48, which states the DoD policy. DoD Regulation 5210.48-R implements that policy. This directive and regulation apply not only to the military departments but also to the Defense Intelligence Agency and the National Security Agency, components of DoD. They do not cover its use by the other agencies dealing with national security information except to the extent that DoD personnel may be assigned or detailed to them.
A polygraph examination is mandatory for employment by or assignment to the DIA and the NSA, and for assignment or detail of DoD employees to the CIA.265 It is also mandatory for employment, assignment, or detail to some DoD "Special Access Programs."266 It may only be used for any other personnel security investigation to resolve serious credible derogatory information, and then only with the consent of the examinee.267 Moreover, no adverse action may be taken solely on the basis of a polygraph examination that indicates deception, except upon the written finding by the Secretary or Under Secretary of Defense, or a Secretary of one of the military departments, that the classified information in question is of such extreme sensitivity that access under the circumstances poses an unacceptable risk to the national security.268 In addition to the above uses, polygraph examinations are authorized by DoD in connection with security clearance matters only in certain situations. They can be used to supplement investigations of
federal felonies, of unauthorized disclosure of classified information or of alleged acts of terrorism. They can also be used to determine eligibility of foreign nationals for access to classified information, or when requested by the subject of a personnel security investigation, for exculpation with respect to allegations arising in the investigation.269
DoD Procedures for Administering a Polygraph
The procedures for administering polygraphs for DoD programs are specified in Part D of DoD Directive 5210.48-R. There is no requirement that a person undergo a polygraph for any reason; however, the refusal to do so may be a bar to employment by certain of the DoD agencies such as the DIA or NSA, or assignment to the CIA. It may bar employment in any Special Access Program.
The person to be interviewed must consent in writing, must be given timely advance notice of the time and place of the polygraph and of the right to have counsel pres??ent [sic], and must be advised of the privilege against self-incrimination and of the right to terminate the examination at any time.270 This information, however, is often given to the person being examined after he is already in the examining room - too late to be effective. The person, who may have traveled some distance to attend the examination, is placed in the position of having to reschedule, or worse in his own eyes, of appearing to be uncooperative and having something to hide. Frequently, given the timing and context, the person chooses not to have counsel, often to their later regret.
The DoD regulation spells out the exact manner in which the examination must be conducted. No relevant question may be asked during the polygraph examination that has not been reviewed with the person to be examined before the examination, and all questions must have a special relevance to the inquiry. Certain "validating" questions may be asked without prior disclosure to establish a baseline from which the examiners can judge the validity of the answers to the relevant questions. The probing of a person's thoughts or beliefs, or questions on subjects that are not directly relevant to the investigation, such as religious or political beliefs or beliefs and opinions about racial matters, are prohibited.271
The examining room where the test is conducted will generally contain only a desk in which the polygraph instrument is installed if an older mechanical model, or on which a modern computer version is placed. The modern version of the instrument consists of a computer which generates lines on a video screen, duplicating the lines drawn by a series of pens on a moving scroll of graph paper on the older mechanical versions.
In addition to the desk, the room will generally contain only a chair for the operator, and chairs for the person examined and his counsel. An observation room is normally adjacent to the examination room connected by a one-way mirror. The observation room will contain a speaker connected to the examination room and listening and recording devices to record the examination. The examination may be, but is not always, witnessed by another investigator from the adjacent room. It may be recorded.
The role of counsel is limited but important. Counsel may not answer for the person being examined, but that person and his counsel may adjourn to discuss a response before it is given. Of course, any adjournment during the questioning will be noted in the report of the polygraph operator. Counsel's presence is also important to advise on possible self-incrimination issues. Counsel can be in the examining room during the preliminary questioning and may sometimes be allowed to remain during the actual running of the polygraph. At other times counsel may be required to observe the actual testing through the one-way mirror connecting the adjacent room. Since all of the questions asked during the actual test will have been reviewed prior to the person being attached to the polygraph machine, there will have been ample time for counsel and the person examined to object to any question.
The presence of counsel cannot be overestimated. It has a restraining effect on overly aggressive polygraph examiners and a calming effect on the examinee. In the end, however, it will not create truthful answers out of deceptive ones, nor allow a dishonest person to "beat the machine." If legal counsel is retained, it should be as early as possible in the process so that counsel can advise on the necessity, if any, of taking the examination and on any areas of possible self-incrimination. In general, from an applicant's point of view, unless it is one of those circumstances where a polygraph examination is absolutely required, one is better off declining since a refusal to take one cannot be the basis for any adverse action or denial of a security clearance.
The National Security Agency also requires a preemployment polygraph as a condition of employment. It requires periodic five-year repolygraphs thereafter. The polygraph covers both life style and counterintelligence issues. All polygraph examinations are tape-recorded. Copies of these recordings or transcripts of the recordings are generally denied to the employee or applicant if there is a decision to deny or revoke access to classified information. However, NSA reports that in rare instances where the decision to remove a clearance raises a direct challenge to what was said during the polygraph, the person appealing the decision has been provided with the relevant portions of the tape recording of the interview.
Use of the Polygraph by Other Agencies
The CIA requires polygraphs of all applicants and regularly repolygraphs all employees on a periodic basis. It does not allow counsel to be present during any part of the investigative process or during the polygraph. The agency feels that the presence of counsel makes the investigation more difficult and less productive. The CIA does not disclose transcripts of the polygraphs, all of which are recorded, and does not disclose the charts or the questions asked, as it believes that this would compromise its investigative methods.272 If someone challenges the rejection of his clearance or access based upon the polygraph test, the CIA will review the polygraph results to consider the person's objections, but will not disclose the exact responses given by the individual.
On December 17, 1999, the Department of Energy adopted a polygraph examination regulation in response to charges of laxity in security at some of its facilities
handling nuclear materials and atomic secrets.273 As of July 16, 2000, of the 800 polygraph examinations administered, all had passed.274
The Polygraph as Evidence in Administrative Appeals
Federal agencies deciding appeals of actions affecting employees deal with results of the person's polygraph exam in a number of ways. The Defense Office of Hearings and Appeals (DOHA), which decides appeals of security clearance decisions, has held that admissions made by an applicant made during a polygraph examination may be admissible in evidence even though the results of polygraph examination are not.275 Such "results" would include the polygraph charts and the polygraph operator's interpretation of those charts. The DOHA Appeal Board has held that Paragraph D.6 of DoD Directive 5210.48, which states that "no adverse action will be taken solely on the basis of a polygraph examination chart that indicates deception," does not bar the use in evidence of the applicant's admissions.276
Whether an applicant can use a nongovernment, private polygraph examiner to present exculpatory evidence is, at the time of this writing, uncertain. In a 1998 Initial Administrative Judge's decision, it was held that the report of a privately hired polygraph operator offered by the applicant was inadmissible.277 The DOHA Appeal Board reversed that decision on September 3, 1998, holding that an applicant for a clearance may offer in evidence a polygraph report administered by a private polygraph operator, but has the burden of proving its admissibility.278 On remand, the administrative judge declined to follow the Appeal Board's ruling, disallowing the report of the private polygrapher on the basis that the Appeal Board's decision did not comport with applicable DoD policy allowing only polygraph examinations conducted by federal agencies conforming to DoD standards.279 On further appeal, the DOHA Appeal Board overruled the administrative judge's finding that the polygraph examination was prohibited by DoD regulation. The Appeal Board, however, held in this case the applicant had failed to show that his polygraph examination was reliable.280 The effect of the Appeal Board's decision is to allow an applicant to present evidence of a favorable polygraph examination upon a proper showing of reliability. Government counsel in this case indicated that at the time of the hearing, there was a proposed revision to DoD Regulation 5210.48-R, "Department of Defense Polygraph Program," which if adopted would bar the use as evidence of an applicant-sponsored polygraph examination.
The Merit Systems Protection Board (MSPB), another federal agency which hears appeals of adverse employment actions, does allow the results of polygraph tests into evidence if a foundation is laid establishing the test's reliability. While finding that polygraph results may be inadmissible, the MSPB does not hold that the result of such tests must be accepted into evidence.281 It leaves to the presiding official whether to admit the test and to decide what weight is to be given such evidence.282 In a 1980 case, the MSPB listed a number of factors to be considered in determining the reliability of polygraph evidence. The rigorous test of "reliability" established in that case was substantially diminished in a 1997 case which allowed into evidence an investigator's summary of the results of a polygraph tests given by someone else. The investigator's summary was of what he had found in the files of an earlier police investigation. The basis for admitting
the summary in the 1997 case was that it was a "public record or report" admissible under Rule 803(8) of the Federal Rules of Evidence. The MSPB held that the problem of "double hearsay" went simply to the weight, not the admissibility, of the evidence.283
The MSPB allows both the employee and the government to bolster its case with polygraph evidence, but tends to give more weight to tests which support the government's case than those which support the employee's version of the truth.284 Use of polygraph evidence in MSPB proceedings has been affirmed by the Federal Circuit Court of Appeals, which has held that it is within the province of the presiding official's credibility determinations.285
For additional information and examples of studies finding the polygraph to be scientifically valid in certain applications, see Department of Defense Polygraph Institute, Bootstrap Decisions Making for Polygraph Examinations, Final Report of DOD/PERSEC Grant No. N00014-92-J-1795 prepared by Charles R. Honts and Mary K. Devout [sic, correct: Devitt] (Grand Forks: University of North Dakota, 25\4 [sic] August 1992); Charles R. Honts, Theory Development and Psycho-physiological Credibility Assessment (Boise State University, 1996); Charles R. Honts, 1994 Final Report: Field Validity Study of the Canadian Police College Polygraph Technique, Science Branch: Supply and Services Canada, contract #M9010-3-2219/01ST (Grand Forks: C. Honts Consultations, 1994); Christopher J. Patrick and William G. Iscono [sic, correct: Iacono], Validity and Reliability of the Control Questions [sic] Polygraph Test: A Scientific Investigation, SBR Abstracts, Psychophysiology 24, No. 5 (September 1987): 604-5.
controlled setting and may not accurately reflect the conditions under which a polygraph is normally taken.
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