Congressional Record: July 31, 2001 (Senate) Page S8466-S8482 STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS 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 co-sponsor. 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.