Opera Baby: A Disgruntled Polygrapher?

[Fair Chance]

Dear rfk,

We try not to sweat the grammer or spelling around here as long as you can convey ideas.

I would not lump all polygraph operators together. Many are college graduates and have many years of loyal service to law enforcement organizations.  They are required to do things that they might not believe in because it is law or policy.  The government (local, state, or federal) does not have the highest salaries in the world.  I would dare say that most of them believe in what they do and do not do it "strictly for the money."

I do not agree with how the polygraph is being used for pre-screening and screening employment specifically by the FBI because that is what I have direct experience with.  I cannot directly attack my examiner because he is being directed by policy to do what he does.  Federal polygraph policy is ultimately voted on by our congressional representatives (and in my case, executive order of the President).

Polygraph policy will be changed if the right people can be convinced by scientific fact and argument that it is not effective for security reasons.

If polygraphy bothers you so much, let your representatives know by using your right to vote and write letters.

Websites like these help individuals read and create their own ideas about polygraph validity.

Personal attacks only tend to make your proponent become defensive and serves to sever any method of discussion or communication.

George M. quoted a section concerning "cult" status from the NAS which directly pertains to your ideas.

[beech trees]

Fair Chance,

For what it's worth, I am sure you will recall that many times in the past on this board, the polygaphers and pro-polygraph posters harp words to the effect, 'it's not the machine, it's the man behind the machine interpreting the results..' One even went so far as to assert that polygraphy 'is more art than science'.

Thus if we are to believe that THEY believe their rhetoric, they are entirely responsible and should be held accountable for their actions. The 'Nuremberg Defense' just doesn't cut it with me.

Sincerely,

Dave

[Fair Chance]

Fair Chance,

For what it's worth, I am sure you will recall that many times in the past on this board, the polygaphers and pro-polygraph posters harp words to the effect, 'it's not the machine, it's the man behind the machine interpreting the results..' One even went so far as to assert that polygraphy 'is more art than science'.

Thus if we are to believe that THEY believe their rhetoric, they are entirely responsible and should be held accountable for their actions. The 'Nuremberg Defense' just doesn't cut it with me.

Sincerely,

Dave

Dear Beech Trees,

Both you and I have seen countless times the quote that "it is more an art than science" and I have argued against this phrase by previously posting "that we must need far more Michaelangelos and less finger painters."

My discussion was more towards the line that these polygraph examiners could not have been doing "abusive" actions without their superiors encouraging or approving such behavior at a very high level.  I have personally been in the dilemma of not wanting to follow policy or law in my job.  I am just trying to relay from personal experience that deciding on a personal basis what laws and policies I want to enforce can quickly become a nightmare for any law enforcement officer. I do not downplay the damage done to the reputations of those falsely accused by polygraph operators (myself being one of them) but I would argue that comparison to what happened at Nuremberg (and using the Nuremberg Defense) to be a little extreme.

My goal is to do what I can to stop pre-screening polygraph use in the FBI application process.  I know that I cannot personally sue the individual operators and they know that too (and their superiors know this).  My focus and energies are far better used in changing law or influencing people who will help me change those laws.  I do not expect any polygraph operator to assist me with this and personally attacking them is only distracting me from my goal.

[mriddle6]

My goal is to do what I can to stop pre-screening polygraph use in the FBI application process.  I know that I cannot personally sue the individual operators and they know that too (and their superiors know this).  My focus and energies are far better used in changing law or influencing people who will help me change those laws.  I do not expect any polygraph operator to assist me with this and personally attacking them is only distracting me from my goal.

Unfortunately, the only way to end fraudulent and deceptive practices has been through litigation. Perhaps intentional infliction of emotional distress, fraud and negligence might work.
 

[Seeker]

Daniel Webster once said, "The world is governed more by appearances than by realities, so that it is fully as necessary to seem to know someting as to know it."
The life of polygraph has been perpetuated based on this very thing.  Just as the fear of the "razor blade" in the apple for halloween, the fear of the polygraph as lie detector has been its very source of life.  (There never was a razor blade in an apple, and only two kids have died as a result of Halloween candy...and those were poisioned by family members.)
I believe that ending the practice of polygraph must start with knowledge of the facts, of reality.  The NAS report is one thing, but it becomes essential for the common citizen to know these important facts.  Those who are not in a position to face a polygraph will most likely believe, to some degree, in its validity.   However, once a person has been gifted with the knowledge behind this cruel joke, they can become quite the power in changing the perceptions of the general population.  When that occurs, the fallacy of polygraph begins to see its coffin.
Yes, we need people to speak.  But, if we are to sit back and wait for the law enforcement agencies, in particular, to voice their honest opinions, then we will have a long wait for the ending of polygraph screening.  I do not particularly agree that there needs to be a wealth of legal action, but I do agree that publicity causes quite the scene.  I have commonly heard that it is the 'wheel that squeeks the loudest that gets oiled first."
We are but naive if we expect those who are in LE to, at great risk to themselves, to their careers, and to their livelihood, stand up and stop this practice.  It takes a man much greater than most to do such a thing.  Of course, a man of honor is one that "later regrets a discreditable act even when it has worked", but again the character of an individual who not only contemplates, but acts, is a most rare one indeed.
 

[Fair Chance]

Unfortunately, the only way to end fraudulent and deceptive practices has been through litigation. Perhaps intentional infliction of emotional distress, fraud and negligence might work.

Dear mriddle6,

Anyone in the Federal government can only be successfully sued on a personal basis if it can be proved that they were not performing their job according to law or policy.  In any other case, the government will provide them legal counsel and pay for all expenses.  I am stating that the actions of the examiners were performed with the approval of their superiors so I believe that attacking it on this angle will be a moot point.  These supervisors have a vested interest in defending their decisions and will use all tools available to do so.

As Seeker stated, publicity and public information (this site) will be a more effective route.  Lawsuits can work in the long run but providing information to examinees will be an immediate help.  I am concerned that the appeals process is weak (or just about non-existent) in the one Federal Agency (FBI) that I have experience with.  

[Anonymous]

a question for Mr. Mallah or other attorneys who might visit this site and care to identify themselves and offer an opinion:  

Can a federal polygraph examiner be sued via a Bivens action based upon a 5th amendment Constitutional tort of lack of due process (actions taken based on techniques with no validity or possibly exhibiting racial bias) or via a 6th amendment infringement of knowingly denying the right to confront witnesses (via not audio/video taping a polygraph exam)?  If so, this might be a way to freeze this nonsense in its tracks...

[beech trees]

a question for Mr. Mallah or other attorneys who might visit this site and care to identify themselves and offer an opinion:  

Can a federal polygraph examiner be sued via a Bivens action based upon a 5th amendment Constitutional tort of lack of due process (actions taken based on techniques with no validity or possibly exhibiting racial bias) or via a 6th amendment infringement of knowingly denying the right to confront witnesses (via not audio/video taping a polygraph exam)?  If so, this might be a way to freeze this nonsense in its tracks...

For those wondering what a Bivens Action is, here is an excellent description and commentary. Fair use quote:

BIVENS ACTIONS allow[s] for Damages remedies for constitutional violations committed by federal agents... The Supreme Court had long held that federal courts had the power to grant relief not expressly authorized by statute as well as the power to adjust remedies to grant relief made necessary by the particular circumstances of the case at hand... Without Bivens Actions, the right to hold Federal employees personally liable for malicious, vicious and even depraved actions is severely limited under the Civil Rights Act of 1964 and subsequent revisions.  For example, a Federal, former Federal employee or non Federal employee treated with grievous and malicious indifference, would have no recourse to file suit against the parties involved in US Federal Court.  A Federal Employee would only have recourse to filing against the "Department Head," such as the Attorney General.  Thus, people responsible for acts of brutality and sadism in violation of the United States Constitution, would be protected by the Federal Government.  This allows for a continuation of these actions against others.

[Mark Mallah]

Anonymous,

The Sixth Amendment right to confront witnesses does not kick in until a very precise point in time.  I don't know exactly when that point is in the federal system, but it is most probably after or simultaneous with when a person has been officially charged with a crime.  Most polygraph interrogations occur before that point, so there would be no 6th Amendment right in that context.  Also, the right to confront witnesses occurs while the witness is under oath.  Again, polygraph examiners are not authorized to swear people under oath, receive testimony, and record that testimony.  That occurs in a court setting, where there is a court reporter taking down the record.  Also, the right to confront witnesses is really a right to eventually confront witnesses against you.  Interrogations, including polygraph interrogations, may still take place without violating the accused's 6th Amendment right.

I'm not familiar with Bivens jurisprudence to answer that question.

P.S. to Anonymous- I always enjoy reading your posts.  Why not register on this site?  Also, I'd be very interested in how you came to be interested in the polygraph; seems like you have a scientific background.  Perhaps you can send me a private message (if that's possible without having registered.  Whatever you're comfortable with).