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
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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.