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Posted by George W. Maschke
- Jan 10, 2005, 04:51 AMHere are some preliminary observations on the DOE's notice of proposed rulemaking:
The notice provides a lengthy rationalization of the Department's rejection of the National Academy of Science's Committee to Review the Scientific Evidence on the Polygraph's principal finding that, "Polygraph testing yields an unacceptable choice for DOE 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."
The Committe's report, The Polygraph and Lie Detection, is available on-line here:
http://www.nap.edu/books/0309084369/html/
DOE purports to embrace the NAS report even as it rejects its central conclusion. The notice concedes that "DOE found many of the NAS's concerns about the 'validity' of polygraph testing to be well taken." (It is not clear why DOE puts the word "validity" in quotation marks.) Yet DOE argues that polygraph screening should be continued based on its utility for eliciting admissions.
Bizarrely, DOE suggests that because of validity concerns, periodic polygraph screening should be limited to only those with access to the most sensitive secrets. It seems to me that if polygraph screening is to be relied on despite it's lack of validity, then it should only be used against those employees whom the Department considers to be most expendible.
DOE suggests that polygraph screening will decrease the likelihood of unauthorized disclosure of classified information. However, it fails to consider the possibility that by treating its employees with such high-handed disrespect as to judge their honesty and integrity by means of such voodoo science, DOE makes it easier for any employee who might consider committing an act of espionage, sabotage, or terrorism to rationalize his/her decision to do so.
Left unaddressed in the DOE notice is any discussion of countermeasures, which was a major concern raised in the NAS report. Indeed because of polygraph screening's lack of validity, the availability of effective countermeasures, and the polygraph community's inability to detect such, it may very well be the case that any person "failing" a DOE polygraph examination is actually less likely to be a spy, saboteur, or terrorist than had he or she "passed."
Also left unaddressed in the DOE notice is how the Department proposes to handle those employees who are honest enough to admit to their polygraph examiner that they understand the trickery on which the "test" actually depends. Detailed information on the polygraph screening technique used by DOE is readily available to any who seek it. And yet persons being polygraphed are not supposed to possess such information. How are DOE polygrapher's to deal with persons who reveal their knowledge that the "test" is a sham? Will employees who admit to knowing "the lie behind the lie detector" be subjected to retaliation by their polygraphers? DOE's continued failure to address this point suggests that the answer is "yes."
The notice provides a lengthy rationalization of the Department's rejection of the National Academy of Science's Committee to Review the Scientific Evidence on the Polygraph's principal finding that, "Polygraph testing yields an unacceptable choice for DOE 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."
The Committe's report, The Polygraph and Lie Detection, is available on-line here:
http://www.nap.edu/books/0309084369/html/
DOE purports to embrace the NAS report even as it rejects its central conclusion. The notice concedes that "DOE found many of the NAS's concerns about the 'validity' of polygraph testing to be well taken." (It is not clear why DOE puts the word "validity" in quotation marks.) Yet DOE argues that polygraph screening should be continued based on its utility for eliciting admissions.
Bizarrely, DOE suggests that because of validity concerns, periodic polygraph screening should be limited to only those with access to the most sensitive secrets. It seems to me that if polygraph screening is to be relied on despite it's lack of validity, then it should only be used against those employees whom the Department considers to be most expendible.
DOE suggests that polygraph screening will decrease the likelihood of unauthorized disclosure of classified information. However, it fails to consider the possibility that by treating its employees with such high-handed disrespect as to judge their honesty and integrity by means of such voodoo science, DOE makes it easier for any employee who might consider committing an act of espionage, sabotage, or terrorism to rationalize his/her decision to do so.
Left unaddressed in the DOE notice is any discussion of countermeasures, which was a major concern raised in the NAS report. Indeed because of polygraph screening's lack of validity, the availability of effective countermeasures, and the polygraph community's inability to detect such, it may very well be the case that any person "failing" a DOE polygraph examination is actually less likely to be a spy, saboteur, or terrorist than had he or she "passed."
Also left unaddressed in the DOE notice is how the Department proposes to handle those employees who are honest enough to admit to their polygraph examiner that they understand the trickery on which the "test" actually depends. Detailed information on the polygraph screening technique used by DOE is readily available to any who seek it. And yet persons being polygraphed are not supposed to possess such information. How are DOE polygrapher's to deal with persons who reveal their knowledge that the "test" is a sham? Will employees who admit to knowing "the lie behind the lie detector" be subjected to retaliation by their polygraphers? DOE's continued failure to address this point suggests that the answer is "yes."
Posted by George W. Maschke
- Jan 07, 2005, 06:21 PMThe Department of Energy has published a notice of proposed rulemaking affecting its polygraph policy:
Quote7 January 2005
-----------------------------------------------------------------------
[Federal Register: January 7, 2005 (Volume 70, Number 5)]
[Proposed Rules]
[Page 1383-1396]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ja05-26]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
[[Page 1383]]
=======================================================================
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DEPARTMENT OF ENERGY
10 CFR Parts 709 and 710
[Docket No. CN-03-RM-01]
RIN 1992-AA33
Counterintelligence Evaluation Regulations
AGENCY: Office of Counterintelligence, Department of Energy.
ACTION: Supplemental notice of proposed rulemaking and opportunity for
public comment.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE or Department) publishes a
supplemental notice of proposed rulemaking to establish new
counterintelligence evaluation regulations, including revised
regulations governing the use of polygraph examinations. This proposed
rule substitutes for DOE's April 14, 2003, preliminary proposal to
retain the existing Polygraph Examination Regulations without
significant change. The statutory purpose of the regulations, as stated
by section 3152 of the National Defense Authorization Act of Fiscal
Year 2002, is ``* * * to minimize the potential for release or
disclosure of classified data, materials, or information.'' The main
features of today's supplemental proposal are: Significant reductions
in the number of individuals now subject to mandatory
counterintelligence evaluations including polygraph screening;
initiation of random counterintelligence evaluations including
polygraph screening to deter unauthorized releases or disclosures;
strict prohibitions on the use of polygraph examination results as the
sole basis for adverse actions against employees; and a program
description showing how polygraph examinations are used as one of a
broad array of tools to deal with counterintelligence risks.
DATES: Written comments (10 copies) are due March 8, 2005. You may
present oral views, data, and arguments at the public hearing which
will be held in Washington, DC on March 2, 2005 at 10 a.m. If you would
like to speak at this hearing, contact Andi Kasarsky at (202) 586-3012.
Each oral presentation is limited to 10 minutes. The hearing will last
as long as there are persons requesting an opportunity to speak.
ADDRESSES: You may choose to address written comments or notification
of intent to speak at the public hearing to U.S. Department of Energy,
Office of Counterintelligence (CN-1), Docket No. CN-03-RM-01, 1000
Independence Avenue. SW., Washington, DC 20585. Alternatively, you may
e-mail your comments or your notification to: poly@cn.doe.gov <mailto:poly@cn.doe.gov>. You may
review or copy the public comments DOE has received in Docket No. CN-
03-RM-01, the public hearing transcript, and any other docket material
DOE makes available at the DOE Freedom of Information Reading Room,
Room 1E-190, 1000 Independence Avenue, SW., Washington, DC 20585. This
notice of proposed rulemaking and supporting documentation are
available on DOE's Internet home page at the following address: http://www.so.doe.gov
The public hearing for this rulemaking will be held at
the following address: U.S. Department of Energy, room 1E-245, 1000
Independence Avenue, SW., Washington, DC. For more information
concerning public participation in this rulemaking, see Section VI of
this supplemental notice of proposed rulemaking.
FOR FURTHER INFORMATION CONTACT: Douglas Hinckley, U.S. Department of
Energy, Office of Counterintelligence, CN-1, 1000 Independence Avenue,
SW., Washington, DC 20585, (202) 586-5901; or Robert Newton, U.S.
Department of Energy, Office of General Counsel, GC-53, 1000
Independence Avenue, SW., Washington, DC 20585, (202) 586-6980. For
information concerning the public hearing, requests to speak at the
hearing, submissions of written comments or public file information
contact: Andi Kasarsky at (202) 586-3012.
SUPPLEMENTARY INFORMATION:
I. Introduction
Under section 3152(a) of the National Defense Authorization Act for
Fiscal Year 2002 (NDAA for FY 2002), DOE is obligated to prescribe
regulations for a new counterintelligence polygraph program the stated
purpose of which is ``* * * to minimize the potential for release or
disclosure of classified data, materials, or information'' (42 U.S.C.
7383h-1(a).) Section 3152(b) requires DOE to ``* * * take into account
the results of the Polygraph Review,'' which is defined by section 3152
(e) to mean ``* * * the review of the Committee to Review the
Scientific Evidence on the Polygraph of the National Academy of
Sciences'' (42 U.S.C. 7383h-1(b), (e)).
Upon promulgation of final regulations under section 3152, and
``effective 30 days after the Secretary submits to the congressional
defense committees the Secretary's certification that the final rule *
* * has been fully implemented, * * *'' section 3154 of the National
Defense Authorization Act for Fiscal Year 2000 (NDAA for FY 2000) (42
U.S.C. 7383h), would be repealed by operation of law. (42 U.S.C. 7383h-
1(c).) The repeal of section 3154 would eliminate the existing
authority which underlies DOE's current counterintelligence polygraph
regulations, which are codified at 10 CFR part 709, but would not
preclude the retention of some or all of those regulations through this
rulemaking pursuant to the later-enacted section 3152 of the NDAA for
FY 2002.
In Part II of this SUPPLEMENTARY INFORMATION, DOE reviews
background information useful in understanding the existing statutory
and regulatory provisions applicable to DOE's current
counterintelligence polygraph examination program. In Part III of this
SUPPLEMENTARY INFORMATION, DOE discusses the basis for today's
supplemental proposed regulations, including DOE's evaluation of the
NAS Polygraph Review which is entitled ``The Polygraph and Lie
Detection.'' In Part IV of this SUPPLEMENTARY INFORMATION, DOE provides
an overview of today's supplemental proposed regulations with specific
references to critical provisions that should be highlighted for the
information of potential commenters.
DOE invites interested members of the public to provide their views
on the issues in this rulemaking by filing written comments or by
attending the public hearing scheduled in this notice. With an open
mind, DOE intends carefully to evaluate the public comments received in
response to this notice of proposed rulemaking and to respond in a
notice of final rulemaking.
[[Page 1384]]
II. Background
For more than 50 years, DOE, like its predecessor the Atomic Energy
Commission, has had to balance two sets of considerations. On the one
hand, we must attract the best minds that we can to do cutting edge
scientific work at the heart of DOE's national security mission, and we
must allow sufficient dissemination of that work to allow it to be put
to the various uses that our national security demands. On the other
hand, we must take all reasonable steps to prevent our enemies from
gaining access to the work we are doing, lest that work end up being
used to the detriment rather than the advancement of our national
security. There are no easy answers to the dilemma of how best to
reconcile these competing considerations.
The question of whether and to what extent DOE should use the
polygraph as a tool for screening individuals for access to our most
sensitive information is the latest manifestation of this perennial
struggle. This particular chapter begins in 1988, when Congress enacted
the Employee Polygraph Protection Act of 1988. That legislation
generally restricted employers from using polygraphs to screen
potential employees. Congress, however, included three exceptions that
are relevant. First, Congress decided that it would not apply any of
the legislation's prohibitions to the United States or other
governmental employers with respect to their own employees. Second,
Congress specifically allowed the Federal government to administer
polygraphs to Department of Defense contractors and contractor
employees, and Department of Energy contractors and contractor
employees in connection with the Department's atomic energy defense
activities. And finally, Congress specifically provided that the
Federal Government could administer polygraphs to contractors and
contractor employees of the intelligence agencies and any other
contractor or contractor employee whose duties involve access to top
secret information or information that has been designated as within a
special access program.
In February 1998, President Clinton issued Presidential Decision
Directive-61. In that classified directive, entitled U.S. Department of
Energy Counterintelligence Program, the Department was ordered to
enhance its protections against the loss or compromise of highly
sensitive information associated with certain defense-related programs
by considering a variety of improvements to its counterintelligence
program. One of these was the use of polygraph examinations to screen
individuals with access to this information.
In order to carry out this directive, after initially proceeding
through an internal order governing only federal employees, on August
18, 1999 (64 FR 45062), the Department proposed a rule, entitled
``Polygraph Examination Regulation,'' that would govern the use of the
polygraph as a screening tool. It proposed that employees at DOE
facilities, contractor employees as well as Federal employees, with
access to certain classified information and materials, as well as
applicants for such positions, be subject to a counterintelligence
polygraph before they received initial access to the information and
materials and at five-year intervals thereafter.
In the NDAA for FY 2000, Congress directed that the Department
administer a counterintelligence polygraph to all Department employees,
consultants, and contractor employees in ``high risk programs'' prior
to their being given access to the program. Congress specified that
these programs were the ``Special Access Programs'' and ``Personnel
Security and Assurance Programs.''
On January 18, 2000, the Department finalized essentially the rule
it had proposed, which included individuals with access to these
programs and others in the screening requirement. Thereafter, on
October 30, 2000, Congress enacted the NDAA of FY 2001, which added DOE
employees, consultants, and contractor employees in programs that use
``Sensitive Compartmented Information'' and all others already covered
by the Department's prior rule to those to whom the polygraph screening
mandate applied.
More recently, in the NDAA for FY 2002 (Public Law 107-107),
enacted on December 28, 2001, Congress required the Secretary of Energy
to carry out, under regulations, a new counterintelligence polygraph
program for the Department. Congress directed that the purpose of the
new program should be to minimize the potential for release or
disclosure of classified data, materials, or information. Congress
further directed that the Secretary, in prescribing the regulation for
the new program, take into account the results of a not-yet-concluded
study being done by the National Academy of Sciences. That study was
being conducted pursuant to a contract DOE had entered into with the
National Academy of Sciences in November 2000, in which the Department
requested the Academy to conduct a review of the existing research on
the validity and reliability of polygraph examinations, particularly as
used for personnel security screening. Congress directed the Department
to propose a new rule regarding polygraphs no later than six months
after publication of the NAS study.
The NAS study, entitled The Polygraph and Lie Detection, was
published in October 2002 (hereinafter referred to as ``NAS Report'' or
``NAS Study''). The Department published a Notice of Proposed
Rulemaking on April 14, 2003 (68 FR 17886). In that Notice, the
Department indicated its then-current intent to continue the current
polygraph program under a new rule. As the Secretary of Energy said
upon release of that proposed rule, he ``concluded that it was
appropriate at the present time to'' retain the current system ``in
light of the current national security environment, the ongoing
military operations in Iraq, and the war on Terrorism.'' At the same
time, the Secretary recognized that in the longer term some changes
might be appropriate. Therefore, the Department explicitly asked for
public comment during a period which ended on June 13, 2003. The
Secretary also personally wrote all laboratory directors inviting their
comments and views on the proposed rule.
DOE received comments that were mostly critical of the proposal to
retain the existing regulations. The comments especially took issue
with DOE's proposal, despite the NAS Report, to continue with mandatory
employee screening in the absence of an event or other good cause to
administer a polygraph examination. Some of the comments recommended
random screening as an alternative to mandatory screening. Others
complained about the adequacy of the regulatory protections in 10 CFR
part 709 against adverse personnel-related action as a result of
exclusive reliance on adverse polygraph examination results. Some of
the management comments of the DOE weapons laboratories expressed
concern about the effect of the counterintelligence polygraph program
on employee morale and recruitment. DOE's response to the major issues
presented in these critical comments is reflected in parts II and III
of this SUPPLEMENTARY INFORMATION. DOE invites those who filed comments
in response to the April 14, 2003, preliminary notice of proposed
rulemaking to reconsider their views in light of the substantial
changes to 10 CFR part 709 that DOE has proposed in this notice.
Following the close of the comment period and consideration of
public
[[Page 1385]]
comments, the Secretary then directed the Deputy Secretary of Energy to
conduct a review of the current policy and its implementation history
to date, the NAS Report, and the public and internal comments resulting
from the Notice of Proposed Rulemaking, and to make recommendations
based on his review. The Deputy Secretary worked closely with the
Administrator of the National Nuclear Security Administration and the
three directors of the nuclear weapons labs. He has discussed the
issues with counterintelligence professionals, polygraph experts, and,
as part of that review, he has also had access to classified summaries
prepared by other Federal agencies regarding their use of polygraph as
a screening tool for highly sensitive national security positions.
III. Basis for Supplemental Proposed Rule
The NAS report makes very clear how little we actually know--in a
scientific sense--about the theory and practice of polygraphs, either
in support of or against the use of polygraphs in a variety of
contexts. DOE found many of the NAS's concerns about the ``validity''
of polygraph testing to be well taken. Some employees feel quite
strongly that the polygraph is a dangerous tool that either has or will
deprive us of the kind of talent that is needed to support our
important national security programs. And, yet, DOE proposes to
conclude that the utility of polygraphs is strong enough to merit their
use in certain situations, for certain classes of individuals, and with
certain protections that minimize legitimate concerns expressed by the
NAS, employees of the Department and its contractors, and other
observers.
DOE is therefore proposing substantial changes to how we use the
polygraph in the context of the Department's counterintelligence
program. In preparing today's proposal, DOE carefully weighed
considerations of fairness to employees with national security
objectives. DOE weighed the critical need to protect important classes
of national security information against the reality that such
information's value is realized in some situations only when shared
among talented individuals, without which our national security would
suffer. DOE weighed the possibility that individuals who might
otherwise be critically important to our national security might not be
able to contribute to our security if they choose another type of
employment because they object to taking a polygraph exam. DOE weighed
the possibility that a polygraph exam that is sensitive enough to raise
the likelihood of ``catching'' someone who means to do harm to the
United States is also sensitive enough to raise the risk that many
``innocent'' employees will have their lives and employment disrupted
by an examination that is either inconclusive or wrongly indicates
deception, thereby also potentially depriving the government of their
services. Throughout, DOE has been guided by the NAS Report, a study of
considerable rigor and integrity both in the sense of what it tells us
about what we know and don't know about scientific evidence relating to
the polygraph, and in its willingness to make clear the limitations
under which the study was conducted.
Perhaps the most difficult issue involves the use of a polygraph as
a screening tool, either as a pre-employment test, or as is the case
with DOE, as a tool for determining access to certain types of
information, programs, or materials. The NAS report points out that the
generic nature of the questions asked in the traditional
counterintelligence scope exam poses concerns for validity, concerns
that are present to a lesser degree when a polygraph exam is focused on
a specific set of facts or circumstances. Thus, the NAS report stated,
``we conclude that in populations of examinees such as those
represented in the polygraph research literature, untrained in
countermeasures, specific-incident polygraph tests can discriminate
lying from truth telling at rates well above chance, though well below
perfection.'' By contrast, ``polygraph accuracy for screening purposes
is almost certainly lower than what can be achieved by specific-
incident polygraph tests in the field.''
Adding to the difficulty for public policy makers is the NAS'
conclusion that ``virtually all the available scientific evidence on
polygraph test validity comes from studies of specific-event
investigations'' rather than studies of polygraphs used as a screening
tool, and the ``general quality of the evidence for judging polygraph
validity is relatively low.'' However, several agencies within the U.S.
intelligence community have utilized the counterintelligence scope
polygraph for many years as part of both their hiring process and
periodic security evaluations of on-board personnel. Those examinations
have proved to be very valuable.
Federal agencies deploying the counterintelligence scope polygraph
as a screening tool for initial hiring or initial access have detected
applicants for classified positions within those agencies who were
directed by foreign governments or entities to seek employment with the
agencies in order to gain successful penetrations within the various
U.S. Government components.
U.S. agencies have also benefited from the utilization of the
polygraph screen as part of periodic security evaluations and re-
investigations of federal employees and contractor personnel. Such
examinations have resulted in multiple admissions in several different
areas:
Knowingly providing classified information to members of
foreign intelligence services.
Involvement in various stages of recruitment efforts by
foreign intelligence services.
Prior unreported contacts with known foreign intelligence
officers.
Efforts by employees to make clandestine contact with
foreign diplomatic establishments or foreign intelligence officers.
Serious contemplation of, or plans to commit, acts of
espionage.
Knowingly providing classified information to foreign
nationals and uncleared U.S. persons.
As a result of admissions and subsequent investigations, federal
agencies have disrupted on going clandestine relationships between
employees/contractors and foreign intelligence officers, and stopped
others in their beginning phases, or even before the clandestine
relationships began.
If this were the end of the inquiry, it would be a relatively
straightforward matter. The probability would be that use of the
polygraph screen as one tool for counterintelligence would have a value
that demanded its use in the context of access to information the
protection of which is critical to our national security, even taking
into account questions of employee morale and the resources necessary
to sustain such a program. The value of its use in specific-incident
investigations would be presumably greater still.
However, that cannot be the end of the inquiry. As the NAS Report
makes clear, there are two fundamental issues that must still be
confronted: problems associated with examination results that produce
``false positives'' (i.e., where an ``innocent'' person's exam is
either inconclusive, or wrongly indicates deception or a significant
response meriting further investigation); or ``false negatives'' (i.e.,
where a ``guilty'' person is judged to have ``passed'' an exam such
that no follow up investigation is required). ``False positives'' pose
a serious dilemma. They clearly affect the morale of those for whom
such a result is reached, and at a certain number can plausibly be
expected to affect the
[[Page 1386]]
morale of a sizeable portion of the workforce. They risk interrupting
the careers of valuable contributors to our nation's defense, if only
to fully investigate and clear someone who has not ``passed'' a
polygraph. Both ways, therefore, they pose a very serious risk of
depriving the United States of the vital services of individuals who
may not be easily replaced. They also risk wasting valuable resources,
particularly valuable security and counterintelligence resources that
could more usefully be deployed in other ways. For all these reasons,
therefore, false positives are a serious issue not only as a matter of
individual justice but as a matter of the security of the United
States.
What this means, in turn, is that the ratio of ``true positives''
to ``false positives'' is a very important consideration in evaluating
the polygraph's utility as a screening tool. Unfortunately, we do not
really know what that ratio actually is. It largely depends on the
accuracy of the polygraph used in this way, as to which, as the NAS
Study explains, for the reasons noted above, we do not have enough hard
information to make anything more than an educated guess.
Nonetheless, the NAS's conclusion on this point is stark:
``Polygraph testing yields an unacceptable choice * * * 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.''
The NAS analysis underlying this conclusion is very complex and
varies somewhat depending on the ``sensitivity threshold'' at which the
polygraph is set. There is no need to detail it fully here. However,
the bottom line is that DOE found these concerns to be compelling,
requiring a satisfactory response in order to continue the use of the
polygraph as a counterintelligence tool for screening decisions.
The core of DOE's response is twofold. First, DOE believes that
considerations brought out by the NAS Study strongly counsel in favor
of ensuring that the types of information that require a screening
polygraph in order to obtain access to them are the most critical to
our national security, so that we are only incurring the costs that the
screening polygraph will inevitably entail in order to protect our most
vital information. That has led DOE to propose substantially lowering
the number of persons that would be subject to mandatory polygraph
screening.
Even in such cases, however, DOE still believes that the costs of
allowing bottom-line decisions to be made based solely on a
``positive'' that stands a substantial chance of being a ``false
positive'' are unacceptably high. DOE cannot afford them because they
risk undermining the very national security goals we hope to attain.
The NAS paragraph quoted above actually only goes to the use of the
polygraph results as the sole basis for decisionmaking. It does not
address the polygraph's use as an investigative lead, to be used in
conjunction with other traditional investigative tools. So used, the
polygraph seems to be far less problematic because DOE should be able
to use these other tools to distinguish the false positives from the
true positives. The NAS Report acknowledges that this approach can
ameliorate the problems it identifies, noting that ``We believe that
any agency that uses polygraphs as part of a screening process should,
in light of the inherent fallibility of the polygraph instrument, use
the polygraph results only in conjunction with other information, and
only as a trigger for further testing and investigation.''
To put the point most simply: DOE knows of no investigative lead
that is perfect. Most will identify a substantial number of instances
of misconduct or ``false positives'' that do not check out. For
example, anonymous tips are the bread and butter of investigations. If
an anonymous tipster reports wrongdoing on someone's part that
indicates danger to the national security, the report may be true. But
it is also possible that the tipster misunderstood something and leapt
to an unwarranted conclusion. And it is also possible that the tipster
made up or distorted the report in order to slander the subject out of
malice, envy, or because of some other grievance or motivation.
Anonymity provides a cloak to the tipster that may result in the
government's obtaining some true information it otherwise might not
get, but it also lowers the costs to the tipster of lying.
Nevertheless, we do not rule out the use of anonymous tips to
screen individuals for access to information, or for all kinds of other
purposes. Rather, we accept them, but we investigate them. What we do
not do, however, is assume they are true and treat them as the sole
basis for decisionmaking.
Similarly, techniques in addition to the polygraph are utilized by
U.S. Government agencies to determine whether to grant security
clearances and determine access to classified information. Those
techniques include, among others, national agency checks; credit and
criminal checks; and interviews with co-workers. Any of those
techniques, standing alone, could produce inaccurate information which,
taken on its face without further verification, could lead to adverse
consequences to the prospective or current employee. While no
individual technique is perfect and without some potential for error,
no one has suggested that we should abandon their use, or that we hire
people and entrust them with national defense information with no prior
checks or reviews whatsoever.
In DOE's view, it is not unreasonable to place the same kind of
limited credence in a polygraph result that we place in many other
kinds of information that we receive in the course of evaluating
whether an individual should be given access to extremely sensitive
information. Therefore, DOE believes it should continue to use the
polygraph as one tool to assist in making that determination, but that
it should not use it as the only tool. That, in turn, leads us to
propose retaining the policy in the present rule against taking any
``adverse personnel action'' solely based on the test results of
polygraph examinations. Moreover, we are proposing to retain the
present policy that no adverse decision on ``access'' to certain
information or programs will be made solely on the basis of such test
results.
The bottom line is we intend that a polygraph screen operate as a
``trigger'' that may often be useful for subsequent evaluation, but
standing alone, to be treated as having no conclusive evidentiary
value. In every case of an adverse personnel action, it is DOE policy
that such an action or decision is based on other information as well.
There remains the problem of ``false negatives,'' where a polygraph
indicates ``no deception'' but the individual is actually being
deceptive. The NAS report quite correctly highlights this as also a
very real concern. DOE's review of this question persuades it that it
is a certainty that any screening polygraph will produce a number of
false negatives. These could in theory be significantly diminished by
raising the sensitivity threshold of polygraph exams, but that almost
certainly raises the numbers of false positives in a population like
DOE's where virtually everyone is an honest patriot. Moreover, even
this approach will not solve the problem, as we may still end up with a
substantial number of false negatives.
Rather, what we must keep in mind is that every ``clearance''
procedure has the problem of ``false negatives.'' It is just as
dangerous to simply assume that a successfully completed background
check means that we ``know'' the person is loyal to the United States.
All that we ``know'' is that we have not found any
[[Page 1387]]
evidence of disloyalty. The same should hold for thinking about what it
means to ``pass'' a polygraph exam. We actually do not ``know'' that
the person is not being deceptive. We simply have not found anything
indicating that he or she is. The real life public policy challenge is
that we have to make a judgment about how far we go, how many resources
we expend, in the search for perfection when it comes to
counterintelligence. Quite obviously, considering the many tens of
thousands of Americans who have access to information or programs the
protection of which is absolutely critical, we are forced to make a
probabilistic judgment on how far is enough. The right way to think
about this is ``defense in depth.'' One tool alone will not suffice.
But many tools, among them the polygraph and other well-known tools,
working together can reduce the risk to the greatest extent practical.
IV. Overview of Proposed Regulations
DOE is proposing that the new program, like the current program, be
driven by access needs and apply equally to Federal and contractor
employees. We will make no distinctions between political appointees or
career service professionals. The function or information to which
access is sought will be determinative.
DOE is proposing (at proposed section 709.3(a)) to retain a
mandatory CI evaluation program including polygraph screening
principally for individuals with ``regular and routine access'' to the
most sensitive information. (The term ``regular and routine access'' is
defined at proposed section 709.2.) The proposed rule, like the current
regulation, would provide for a mandatory counterintelligence (CI)
evaluation (hereafter referred to as CI evaluation), including a CI-
scope polygraph examination prior to initial access being granted, as
well as periodic CI evaluations at intervals not to exceed five years.
Overall, DOE's proposal would narrow the range of information,
access to which will trigger mandatory screening as compared to the
potential scope of the program under the current legislation. The
approach in today's proposal would have the effect of reducing the
number of individuals subject to mandatory screening from in excess of
potentially 20,000 under the current legislation to approximately 4,500
under this new program.
In addition, DOE is proposing that some elements of the mandatory
screening population remain essentially the same as under the current
regulation. For example: all counterintelligence employees; all
employees in the Headquarters Office of Intelligence and at the Field
Intelligence Elements; and all employees in DOE Special Access Programs
(and non-DOE Special Access Programs if a requirement of the program
sponsor) will be included in the mandatory screening program. These
employees would continue to be subject to mandatory screening because
they have routine access to highly sensitive information, such as
foreign intelligence information and other extremely close-hold and
compartmented information.
DOE has searched for a test to identify the types of information
that on balance would overcome the very real concerns about the
validity of the polygraph screen. Most would agree that the polygraph
should be reserved for only those programs or information, the
protection of which is the most critical. As it happens, we have a well
understood test of how to define the damage disclosure of certain
information would present: the current classification levels of
Confidential, Secret, and Top Secret. There are additional categories
that are also important, but it seems that the definition of Top Secret
is a better way to capture the information most precious to us:
``information, the unauthorized disclosure of which reasonably could be
expected to cause exceptionally grave damage to the national
security''.
Thus, DOE is proposing including in the mandatory screening program
those employees with ``regular and routine access'' to all DOE-
originated ``Top Secret'' information, including Top Secret
``Restricted Data'' and Top Secret ``National Security Information.''
(The terms in quotation marks are defined at proposed section 709.2.)
Top Secret Restricted Data is a clearly distinguishable criterion that
identifies the weapons community's most sensitive information assets.
Other non-weapons-related Top Secret information, categorized as Top
Secret National Security Information, although not dealing with nuclear
weapons, includes our most sensitive national security information.
This category would not include everyone with a ``Q'' or a Top Secret
clearance, nor would it include all weapons scientists; it would
include only those employees who require continuing, routine access to
Top Secret RD or other DOE-originated Top Secret information. This is a
fairly small population.
The proposed rule also would include authority for certain
managers, with input from the Office of Counterintelligence and subject
to the approval by the Secretary, to include additional individuals
within their offices or programs in the mandatory screening program.
This authority would allow designation of individuals within the Office
of the Secretary, the National Nuclear Security Administration, the
Office of Security, the Office of Emergency Operations, the Office of
Independent Oversight and Performance Assurance, and the Human
Reliability Program (HRP) under 10 CFR part 712. (See proposed section
709.3(a)(6) and (f).) The criteria for conducting a risk assessment are
set forth at section 709.3(e). Those criteria are: access on a non-
regular and non-routine basis to top secret restricted data or top
secret national security information or the nature and extent of access
to other classified information; unescorted or unrestricted access to
significant quantities or forms of special nuclear materials; and any
other factors concerning the employee's responsibilities that are
relevant to determining risk of unauthorized disclosure of classified
information or materials.
DOE is proposing not to designate for mandatory CI evaluations
screening all individuals in the HRP. The NDAA for FY 2000 originally
mandated that everyone in this program be subject to a screening
polygraph, and the NDAA for FY 2001 retained that mandate.
The NDAA for FY 2002, however, directs that the focus of DOE's
polygraph program be the protection of classified data, materials or
information. The HRP applies to individuals primarily not by reason of
their access to classified information but because of their
responsibilities for nuclear materials. Many, if not most, of the HRP
individuals do not have routine access to the most sensitive classified
information.
DOE envisions, as one element of the new program, that employees
designated for mandatory screening under the new regulation would be
allowed to retain access to classified information or materials pending
scheduling of their first CI evaluation.
We now turn to an entirely new proposed element of the overall
program--the random screening program. We have identified a universe of
employees whose level and frequency of access, while not requiring
mandatory screening, nevertheless warrants some additional measure of
deterrence against damaging disclosures. (See proposed section
709.3(b).)
In reviewing the public policy dimensions of the polygraph, one is
[[Page 1388]]
struck by the ``either-or'' aspect of the debate: either you are
subject to a polygraph, or you are not. This strikes DOE as too
simplistic. The types of information we are concerned with do not
easily fall into categories where either we fully deploy every tool we
have to defend against disclosure or we do nothing. The classification
regime itself acknowledges that there is a continuum, and that these
determinations are based on less science and more judgment than is
often admitted. Nonetheless, the problem of targeting is perhaps unique
to DOE facilities, and especially our three weapons labs, in a way not
present elsewhere in our national security complex. Nowhere else in
America can someone--in one location--find not only our most sensitive
nuclear weapons secrets, but secrets addressing other weapons of mass
destruction, and special nuclear material.
There are many ways to deter and detect such targeting, and the
security and counterintelligence functions at DOE command the full
attention of DOE's leadership, substantial resources, large and highly
trained protective forces, and security and access controls that are
too numerous to list here. Nonetheless, we will do everything we can to
strengthen our ability to detect and deter activities inimical to our
interests. Thus, as a policy matter, unless there are very compelling
countervailing considerations, we should pursue even modest additions
to the arsenal of tools we deploy to deter dissemination of this
information to our enemies given the potentially grave consequences of
failure.
It is noteworthy that the NAS report, while questioning the
validity of polygraph screens and their value in ``detection,'' also
stated that ``polygraph screening may be useful for achieving such
objectives as deterring security violations, increasing the frequency
of admissions of such violations, [and] deterring employment
applications from potentially poor security risks.''
As the NAS report notes, ``the value, or utility, of polygraph
testing does not lie only in its validity for detecting deception. It
may have a deterrent value * * *'' And, as the NAS report also notes,
``predictable polygraph testing (e.g., fixed-interval testing of people
in specific job classifications) probably has less deterrent value than
random testing.'' This leads DOE to conclude that it is appropriate in
some instances to include some form of screening beyond that routinely
required to obtain and maintain access to classified information or
materials that makes some use of the deterrent value of the polygraph.
The random screening program is intended to meet this need and to
supplement the mandatory screening program. Under the random screening
portion of the program, CI evaluations would not be a condition of
initial entry nor would individuals with access to the information at
issue be subject to mandatory polygraphs at specific intervals.
However, they would be subject to random selection for CI evaluations
at any time, at any frequency. In essence, even though it is possible
that an individual may never actually be selected through the random
process, the individual could be subject to a (random) CI evaluation at
any time, even if the individual recently completed one.
While the overall goal is one of deterrence, an associated benefit
is that the random program serves to reduce the number of individuals
in the mandatory program, allowing us to focus our resources more
wisely. Thus, it will be DOE's policy to fashion a random CI evaluation
program including polygraph that achieves the objectives of deterrence
with the minimum reasonable percentage or number of individuals to
which it applies. Since we estimate the total number of individuals who
would be eligible for the random CI evaluations including polygraph to
be small, the use of a minimum percentage means the total number of
random polygraphs in any given year would be a much lower number.
Proposed section 709.3(b) lists individuals whose occasional access to
classified information or materials would merit screening. Again, the
population associated with routine access to such information will not
encompass the entire population of ``Q'' cleared individuals.
In addition, due to the interconnectedness of DOE sites and cyber
networks and the volume of sensitive unclassified information, we are
already taking steps to apply additional security controls (clearance
requirements, segregation of duties, two-person rules, etc.) to system
administrators of unclassified systems.
In addition to the mandatory and random screening programs, DOE is
proposing a provision for conducting ``specific-incident'' polygraph
examinations in response to specific facts or circumstances with
potential counterintelligence implications with a defined foreign
nexus. (See proposed section 709.3(c).) That recommendation also grows
out of the NAS Report, which noted that this kind of use of the
polygraph is the one for which the existing scientific literature
provides the strongest support. The proposed rule also would provide
for employee-requested polygraph examinations in the context of a
specific incident. (See proposed section 709.3(c).)
The proposed rule would not retain the provision in the existing
regulations concerning the use of polygraph examinations for the
Accelerated Access Authorization Program (AAAP). Since AAAP is related
exclusively to expedited interim access authorizations rather than to
DOE's Counterintelligence Evaluation Program, it should not be covered
by part 709. Nevertheless, DOE did undertake a review of the use of
polygraph examinations as part of the AAAP, in light of the NAS report,
to determine if it was unduly reliant on such examinations in granting
interim access authorizations. DOE's review found that there are
sufficient checks and balances in place that the continued use of
polygraph examinations, together with the other components of the AAAP,
is appropriate. Likewise, the proposed rule deletes the general
provision in the existing regulations regarding employee requested
polygraphs.
As the discussion above makes clear, the Department is strongly
committed to maximizing protections against potential errors and
adverse consequences and safeguarding the privacy of the employees who
are subject to CI evaluations. Therefore the proposed rule would retain
and enhance the protections already contained in the current
regulation. The provisions we would retain include: written
notification by DOE and written consent from the employee are required
before a polygraph examination can be administered; a prohibition
against recording a refusal to submit to a polygraph examination in an
employee's personnel file; audio and video recordings of polygraph
examination sessions would be made to protect both the employee and the
polygrapher; all polygraph examination records and reports would be
maintained in a system of records established under the Privacy Act;
and strict qualification standards and standards of conduct for
polygraphers would be established and enforced. Neither the polygrapher
nor the Office of Counterintelligence would have the authority to make
a decision to grant or deny access to information covered by part 709.
That decision would be made by the Program Manager or the Secretary.
The polygraph examination would be limited to topics concerning the
individual's involvement in espionage, sabotage, terrorism,
unauthorized disclosure of classified information, unauthorized foreign
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contacts, and deliberate damage to or malicious misuse of a U.S.
government information or defense system. The examiner would not be
permitted to ask ``lifestyle'' questions, e.g., drugs, crimes, and
falsification of application.
Perhaps the most important aspect of these safeguards is how we
address the problem of ``false positives.'' Assuming we adhere to the
difficult policy choice that the continued use of polygraphs as both a
screening tool and for resolving specific incidents is appropriate, we
believe that it is absolutely necessary to ensure that we minimize to
the greatest extent possible any morale effects of the polygraph, and
do everything we can to prevent ``false positives'' from producing an
unfair result to an employee.
Limiting the population of those subject to mandatory screening
polygraphs is the most important step we can take to limit these kinds
of problems. In addition, however, we are proposing a few improvements
to the current rule. First, we would clarify that the sole purpose for
which we use the polygraph as a screening tool is to assist us in
making determinations about whether an individual may be given access
to specific categories of highly sensitive information. Otherwise, DOE
does not use it to make employment decisions at all, except to the
extent that access to this information may be a critical element of
someone's job.
The proposed rule also would make clear that it is DOE's policy not
to base a denial of access solely on the results of a polygraph exam.
(See proposed section 709.25(a).) This would be consistent with the NAS
report's recommendation: ``We believe that any agency that uses
polygraphs as part of a screening process should, in light of the
inherent fallibility of the polygraph instrument, use the polygraph
results only in conjunction with other information, and only as a
trigger for further testing and investigation.''
The proposed rule also would improve the process for making
decisions to grant, continue, or deny access to these high-risk
programs by providing for a counterintelligence evaluation review
board, including senior DOE officials, that may be convened by the
Director of the Office of Counterintelligence to consider the results
of counterintelligence evaluations that are not dispositive and to
solicit the individual recommendations of the board members. The board
could include the appropriate weapons laboratory director if the access
determination involves a laboratory employee.
Because the policy choices discussed above lead to the conclusion
that the polygraph should be just one tool of many, the proposed rule
would make clear that polygraphs are just one element to be used in
counterintelligence evaluations. The current rule refers to review of
personnel security files and personal interviews in conjunction with
the polygraph. The proposed rule would broaden this reference to
provide that DOE may when appropriate employ other techniques, such as
review of financial and credit information, net worth analyses,
analyses of foreign travel and foreign contacts and connections, and
other relevant information. Any such review by OCI will be conducted in
accordance with Executive Order 12333, the DOE ``Procedures for
Intelligence Activities,'' and other relevant laws, guidelines and
authorities as may be applicable with respect to such matters.
In addition to a wider array of tools, better tools are needed to
increase the reliability and validity of screening processes. The NAS
report called for basic and applied scientific research into improved
security screening techniques, and suggested that such an effort could
be devoted in part to developing knowledge to put the polygraph
technique on a firmer scientific foundation, which could strengthen its
acceptance as a tool for detecting and deterring security threats. We
have also identified a need for basic research into improved screening
technologies, including but not limited to psychological and behavioral
assessment techniques. It may be, as the NAS report suggests, that this
research is best conducted under the auspices of an organization other
than an agency that invests considerable resources in a
counterintelligence polygraph program. DOE stands ready to lead or
assist in such research.
V. Regulatory Review
A. National Environmental Policy Act
The proposed rule would retain the existing procedures for
counterintelligence evaluations to include polygraph examinations and
therefore will have no impact on the environment. DOE has determined
that this rule is covered under the Categorical Exclusion in DOE's
National Environmental Policy Act regulations in paragraph A.5 of
appendix A to subpart D, 10 CFR part 1021, which applies to rulemakings
amending an existing regulation that does not change the environmental
effect of the regulations being amended. Accordingly, neither an
environmental assessment nor an environmental impact statement is
required.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires
preparation of an initial regulatory flexibility analysis for every
rule that must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. This
rulemaking will not directly regulate small businesses or small
governmental entities. It will apply principally to individuals who are
employees of, or applicants for employment by, some of DOE's prime
contractors, which are large businesses. There may be some affected
small businesses that are subcontractors, but the rule will not impose
unallowable costs. Accordingly, DOE certifies that the proposed rule,
if promulgated, will not have a significant economic impact on a
substantial number of small entities.
C. Paperwork Reduction Act
DOE has determined that this proposed rule does not contain any new
or amended record keeping, reporting or application requirements, or
any other type of information collection requirements that require the
approval of the Office of Management and Budget (OMB) under the
Paperwork Reduction Act, 44 U.S.C. 3501, et seq. The OMB has defined
the term ``information'' to exclude certifications, consents, and
acknowledgments that entail only minimal burden (5 CFR 1320.3(h)(1)).
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531 et seq.,
requires a Federal agency to perform a detailed assessment of the costs
and benefits of any rule imposing a Federal mandate with costs to
state, local, or tribal governments, or to the private sector of $100
million or more. The proposed rule does not impose a Federal mandate
requiring preparation of an assessment under the Unfunded Mandates
Reform Act of 1995.
E. Treasury and General Government Appropriations Act, 1999
Section 654 of the Treasury and General Government Appropriations
Act of 1999, (Public Law 105-277), requires Federal agencies to issue a
Family Policymaking Assessment for any proposed rule that may affect
family well being. This proposed rule will not have any impact on the
autonomy or
[[Page 1390]]
integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
F. Executive Order 12866
In accordance with Executive Order 12866, the rule has been
determined to be significant and has been reviewed by the Office of
Management and Budget.
G. Executive Order 12988
Section 3(a) of Executive Order 12988, 61 FR 4729 (February 7,
1996) imposes on executive agencies the general duty to adhere to the
following requirements: (1) Eliminate drafting errors and ambiguity;
(2) write regulations to minimize litigation; and (3) provide a clear
legal standard for affected conduct rather than a general standard, and
promote simplification and burden reduction. Section 3(b) of Executive
Order 12988 specifically requires that executive agencies make every
reasonable effort to ensure that the regulation: (1) Clearly specifies
the preemptive effect, if any; (2) clearly specifies any effect on
existing Federal law or regulation; (3) provides a clear legal standard
for affected conduct while promoting simplification and burden
reduction; (4) specifies the retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General. Section 3(c) of Executive Order 12988 requires
executive agencies to review regulations in light of applicable
standards in section 3(a) and section 3(b) to determine whether they
are met or it is unreasonable to meet one or more of them. DOE has
completed the required review and determined that, to the extent
permitted by law, this proposed rule meets the relevant standards of
Executive Order 12988.
H. Executive Order 13084
Under Executive Order 13084, 63 FR 27655 (May 19, 1998), DOE may
not issue a discretionary rule that significantly or uniquely affects
Indian tribal governments and imposes substantial direct compliance
costs. This proposed rulemaking would not have such effects.
Accordingly, Executive Order 13084 does not apply to this rulemaking.
I. Executive Order 13132
Executive Order 13132, 64 FR 43255 (August 10, 1999), requires
agencies to develop an accountable process to ensure meaningful and
timely input by state and local officials in the development of
regulatory policies that have ``federalism implications.'' Policies
that have federalism implications are defined in the Executive Order to
include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' On March 14, 2000, DOE published a
statement of policy describing the intergovernmental consultation
process it will follow in the development of such regulations (65 FR
13735). DOE has examined this proposed rule and determined that it
would not have a substantial direct effect on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government. No further action is required by the Executive Order.
J. Executive Review Under Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy, Supply, Distribution, or Use), 66 FR 28355
(May 22, 2001) requires preparation and submission to OMB of a
Statement of Energy Effects for significant regulatory action under
Executive Order 12866 that are likely to have a significant adverse
effect on the supply, distribution, or use of energy. This rulemaking,
although significant, will not have such an effect. Consequently, DOE
has concluded that there is no need for a Statement of Energy Effects.
K. Treasury and General Government Appropriations Act, 1999
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516, note) provides for agencies to review most disseminations
of information to the public under guidelines established by each
agency pursuant to general guidelines issues by OMB. OMB's guidelines
were published at 67 FR 8452 (February 22, 2001), and DOE's guidelines
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this
notice of proposed rulemaking under the OMB and DOE guidelines, and has
concluded that it is consistent with applicable policies in those
guidelines.
VI. Opportunity for Public Comment
A. Written Comments
Interested members of the public are invited to participate in this
proceeding by submitting data, views, or comments on this proposed
rule. Ten copies of written comments should be submitted to the address
indicated in the ADDRESSES section of this notice of proposed
rulemaking. Comments should be identified on the outside of the
envelope and on the comments themselves with the designation
``Counterintelligence Evaluation Regulation, Docket No. CN-03-RM-01.''
If anyone wishing to provide written comments is unable to provide ten
copies, alternative arrangements can be made in advance with the DOE.
All comments received on or before the date specified at the beginning
of this notice, and other relevant information before final action is
taken on the proposed rule, will be considered.
All submitted comments will be available for public inspection as
part of the administrative record on file for this rulemaking in the
DOE Freedom of Information Reading Room at the address indicated in the
ADDRESSES section of this notice of proposed rulemaking. Pursuant to
the provisions of 10 CFR 1004.11, anyone submitting information or data
that he or she believes to be confidential and exempt by law from
public disclosure should submit one complete copy of the document, as
well as two copies, if possible, from which the information has been
deleted. DOE will make its determination as to the confidentiality of
the information and treat it accordingly.
B. Public Hearing
You will find the time and place of the public hearing listed at
the beginning of this notice of proposed rulemaking. We invite any
person who has an interest in today's notice of proposed rulemaking, or
who is a representative of a group or class of persons that has an
interest in these issues, to request an opportunity to make an oral
presentation. If you would like to speak at the public hearing, please
notify Andi Kasarsky at (202) 586-3012.