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Congressional Record: July 31, 2001 (Senate)
Page S8466-S8482                       


      By Mr. DOMENICI (for himself and Mr. Bingaman):
  S. 1276. A bill to provide for the establishment of a new 
counterintelligence polygraph program for the Department of Energy, and 
for other purposes; to the Committee on Armed Services.
  Mr. DOMENICI. Mr. President, I rise today to introduce a bill that 
modifies the requirements for polygraphs at facilities operated by the 
Department of Energy. I appreciate that Senator Bingaman joins me as a 
  Polygraph requirements were added by Congress in response to concerns 
about security at the national laboratories. A set of mandates was 
first created in the Senate Armed Services Authorization Bill for 
Fiscal Year 2000, and they were expanded with broader mandates in 
Fiscal Year 2001.
  Security at the our national security facilities is critically 
important, and General Gordon is working diligently as Administrator of 
the National Nuclear Security Administration to improve security 
through many initiatives. But frankly, I fear that Congress has given 
the General a little too much help in this particular area.
  The effect of our past legislation was to require polygraphs for very 
broad categories of workers in DOE and in our DOE weapons labs and 
plants. But the categories specified are really much too broad, some 
don't even refer to security-related issues. They include many workers 
who have no relevant knowledge or others who may be authorized to enter 
nuclear facilities but have no unsupervised access to actual material. 
Many of the positions within these categories already require a two-
person rule, precluding actions by any one person to compromise 
protected items.
  This bill provides flexibility to allow the Secretary of Energy and 
General Gordon to set up a new polygraph program. Through careful 
examination of the positions with enough sensitivity to warrant 
polygraphs, I fully anticipate that the number of employees subject to 
polygraphs will be dramatically reduced while actually improving 
overall security.
  My bill seeks to address other concerns. Polygraphs are simply not 
viewed as scientifically credible by Laboratory staff. Those tests have 
been the major contributor to substantial degradation in worker morale 
at the labs. This is especially serious when the labs and plants are 
struggling to cope with the new challenges imposed

[[Page S8475]]

by the absence of nuclear testing and with the need to recruit new 
scientific experts to replace an aging workforce.
  I should note that these staff concerns are not expressed about drug 
testing, which many already must take. They simply are concerned with 
entrusting their career to a procedure with questionable, in their 
minds, scientific validity.
  A study is in progress by the National Academy of Sciences that will 
go a long ways toward addressing this question about scientific 
credibility of polygraphs when they are used as a tool for screening 
large populations. By way of contrast, this use of polygraphs is in 
sharp contrast to their use in a targeted criminal investigation. That 
Academy's study will be completed in June 2002. Therefore, this bill 
sets up an interim program before the Academy's study is done and 
requires that a final program be established within 6 months after the 
study's completion.
  This bill addresses several concerns with the way in which polygraphs 
may be administered by the Department. For example, some employees are 
concerned that individual privacies, like medical conditions, are not 
being protected using the careful procedures developed for drug 
testing. And facility managers are concerned that polygraphs are 
sometimes administered without enough warning to ensure that work can 
continue in a safe manner in the sudden absence of an employee. And of 
greatest importance, the bill ensures that the results of a polygraph 
will not be the sole factor determining an employee's fitness for duty.
  With this bill, we can improve worker morale at our national security 
facilities by stopping unnecessarily broad application of polygraphs, 
while still providing the Secretary and General Gordon with enough 
flexibility to utilize polygraphs where reasonable. In addition, we set 
in motion a process, which will be based on the scientific evaluation 
of the National Academy, to implement an optimized plan to protect our 
national security.
  Mr. BINGAMAN. Mr. President, I am pleased to cosponsor legislation 
being introduced by Senator Domenici that will help correct what I 
consider to be overzealous action on the part of the Congress to 
address security problems at our Department of Energy national 
laboratories. We're all aware of the security concerns that grew out of 
the Wen Ho Lee case. That case, and other incidents that have occurred 
since then, quite rightly prompted the Department of Energy and the 
Congress to assess security problems at the laboratories and seek 
remedies. Last year, during the conference between House and Senate on 
the Defense Authorization bill, a provision was added, Section 3135, 
that significantly expanded requirements for administering polygraphs 
to Department of Energy and contractor employees at the laboratories. 
That legislative action presumed that polygraph testing is an 
effective, reliable tool to reveal spies or otherwise identify security 
risks to our country.
  The problem is that the Congress does not have the full story about 
polygraph testing. I objected when Section 3135 was included in the 
conference mark of the Defense bill last year, but it was too late in 
the process to effectively protest its worthiness. It has since become 
clear that the provision has had a chilling effect on current and 
potential employees at the laboratories in a way that could risk the 
future health of the workforce at the laboratories. The laboratory 
directors have expressed to me their deep concerns about recruitment 
and retention, and I'm certain that the polygraph issue is a 
contributing factor. Indeed, I've heard directly from many laboratory 
employees who question the viability of polygraphs and who have raised 
legitimate questions about its accuracy, reliability, and usefulness.
  In response to those questions and concerns, I requested that the 
National Academy of Sciences undertake an effort to review the 
scientific evidence regarding polygraph testing. Needless to say, there 
are many difficult scientific issues to be examined, so the study will 
require considerable effort and time. We are expecting results next 
June. Once the Congress receives that report, I am hopeful that the 
Department of Energy, the National Nuclear Security Administration, and 
the national laboratories will be better able to consider the 
worthiness of polygraph testing to its intended purposes and determine 
whether and how to proceed with a program.
  Until that time, however, the Congress has levied a burdensome 
requirement on the national laboratories to use polygraph testing 
broadly at the laboratories with the negative consequences to which I 
have alluded. I believe the legislation that Senator Domenici and I are 
introducing today will provide a more balanced, reasoned approach in 
the interim until the scientific experts report to the Congress with 
their findings on this very complex matter. The bill being introduced 
will provide on an interim basis the security protection that many 
believe is afforded by polygraphs, but will limit its application to 
those Department of Energy and contractor employees at the laboratories 
who have access to Restricted Data or Sensitive Compartmented 
Information containing the nation's most sensitive nuclear secrets. It 
specifically excludes employees who may operate in a classified 
environment, but who do not have actual access to the critical security 
information we are seeking to protect.
  Other provisions in the bill would protect individual rights by 
extending guaranteed protections included under part 40 of Title 49 of 
the Code of Federal Regulations and by requiring procedures to preclude 
adverse personnel action related to ``false positives'' or individual 
physiological reactions that may occur during testing. The bill also 
seeks to ensure the safe operations of DOE facilities by requiring 
advance notice for polygraph exams to enable management to undertake 
adjustments necessary to maintain operational safety.
  Let me emphasize once again, that this legislation is intended as an 
interim measure that will meet three critical objectives until we have 
heard from the scientific community. This bill will ensure that 
critical secret information will be protected, that the rights of 
individual employees will be observed, and that the ability of the 
laboratories to do their job will be maintained. I thank Senator 
Domenici for his work on this bill, and urge my colleagues to support 
its passage. I yield the floor.

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