CONTACT: Phil Goldberg(202) 225-1880
www.house.gov/tauscher/
Washington, DC -- Congresswoman Ellen Tauscher (D-CA 10), the only Member of Congress representing two national nuclear laboratories, called on Energy Secretary Bill Richardson to withdraw his proposal to expand polygraph testing at the nation's labs. In the four page letter she sent to Secretary Richardson today, Rep. Tauscher called the DOE expanded polygraph plan "overly broad" and said that it may "have a chilling effect on the recruitment and retention of laboratory employees, and will likely have minimal impact on overall security."
Rep. Tauscher, who serves on the Armed Services Committee, was a House Conferee on the bill that passed Congress last week to reorganize the DOE's management of nuclear labs. She helped draft the Conference Report's provision calling for polygraph testing of a few hundred scientists who have a "special access" to nuclear secrets. She believes that "If used properly, polygraph tests can be effective." Her problem with the DOE plan is that it would expand polygraphs to thousands of Department and lab employees of varying classifications, even if no prior suspicion of wrongdoing exists.
"I urge you to enact a complete moratorium on all polygraph tests until an acceptable, limited polygraph plan is developed and vetted," wrote Rep. Tauscher, who noted that former Los Alamos Scientist Wen Ho Lee passed and failed polygraph tests and that convicted spy Aldrich Ames passed his polygraph tests. "In this effort to secure our most prized nuclear secrets, we must guard against methods that may offer a false sense of security. We also must reject remedies that are out of balance with our constitutional commitment to the personal rights and freedoms of all Americans. I believe the Department's expanded polygraph program fails these tests."
"Given the questionable scientific underpinnings of polygraph testing, it is not prudent to expand the use of polygraph testing beyond a limited scope or as a tool for more than just fact gathering and verification within an established investigation," she continued. "If not used correctly, polygraphs can do more harm than good. The physical manifestations that trigger the machine could just as easily result from a lie as from a truthful statement made by someone who is understandably nervous. Conversely, icy, pathological liars could pass just as easily as those who are truly honest. ... Even if polygraph tests match their optimistic expectations of 95 percent proficiency, 50 scientists out of every thousand tested could be put in a career threatening predicament by registering a false positive."
"The scientists who spoke at the Department's public hearing at Lawrence Livermore National Laboratory this month said that they fear that a false positive could end their careers as quickly as a guilty verdict," Tauscher wrote. She also asked Mr. Richardson to answer 13 questions about how the Department would use polygraphs and how they would account for and adjudicate false positives. "If we hope to maintain our technological superiority in the world, we need to maintain our primary focus on security and create an inviting employment environment, not one that would cause our most loyal incumbents to quit and seek employment elsewhere," she said.
September 28, 1999
The Honorable Bill Richardson
Secretary, Department of Energy
1000 Independence Avenue, SW
Washington, DC 20585
Dear Secretary Richardson,
After careful consideration of the Polygraph Examination Regulation Proposed Rule, I urge you to enact a complete moratorium on all polygraph tests until an acceptable, limited polygraph plan is developed and vetted.
As the Member of Congress representing Lawrence Livermore and Sandia National Laboratories in California, I do not take this position lightly. I appreciate the significant leadership you have demonstrated in your tenure as Secretary of the Department of Energy and the difficult and troubling issues you inherited.
Throughout this year, the extent of the decades-long mismanagement of our counterintelligence operation at our nation's labs has been exposed: our counterintelligence force has lacked centralization, has failed to adapt to the emerging threats in the post Cold War paradigm, and appears to tolerate, rather than embrace, the technology revolution. The Congress and the Department of Energy have taken necessary, appropriate and dramatic steps to increase security at our nation's nuclear labs. With your leadership, we reformed the management structure of the Department of Energy for better accountability and oversight, and you established a comprehensive counterintelligence program, which includes polygraph examinations.
In this effort to secure our most prized nuclear secrets, we must guard against methods that may offer a false sense of security. We also must reject remedies that are out of balance with our constitutional commitment to the personal rights and freedoms of all Americans. I believe the Department's expanded polygraph program fails these tests. It also is overly broad, may have a chilling effect on the recruitment and retention of laboratory employees, and will likely have minimal impact on overall security.
In the Defense Authorization bill, Congress directed the Department of Energy to implement a polygraph program only for a select group of scientists who have a heightened responsibility for security because of their "special access" to our most sensitive security secrets. This is a relatively small group of Department and laboratory employees of no more than a few hundred people. In this instance, polygraph testing could act as an effective deterrent to espionage. Instead, the Department has proposed testing another seven categories of scientists -- a total of a few thousand employees. Moreover, the Department plans to use polygraph testing for this wider net of workers as an initial step for evidence gathering, whether or not prior suspicion of wrongdoing exists.
Given the questionable scientific underpinnings of polygraph testing, it is not prudent to expand the use of polygraph testing beyond a limited scope or as a tool for more than just fact gathering and verification within an established investigation. The fact is that polygraph technology has not progressed since the 1930s. It is not exact, and for that reason, our justice system does not accept it as a singular method of determining a suspect's guilt or innocence. Among our nation's science and law enforcement communities, there is great dispute as to the efficacy of polygraph testing as a primary tool of evidence gathering. Former Los Alamos scientist Wen Ho Lee, for example, both passed and failed polygraph tests when he was interrogated by the FBI for alleged Chinese espionage.
If not used correctly, polygraphs can do more harm than good. The physical manifestations that trigger the machine could just as easily result from a lie as from a truthful statement made by someone who is understandably nervous. Conversely, icy, pathological liars could pass just as easily as those who are truly honest. After all, convicted spy Aldrich Ames passed numerous polygraph tests. Even if polygraph tests match their optimistic expectations of 95 percent proficiency, 50 scientists out of every thousand tested could be put in a career threatening predicament by registering a false positive.
False positives tend to outnumber accurate hits. That is why the federal government has enacted laws to limit their use in private industry. And the Supreme Court, in a majority opinion, stated that in military trials where polygraphs are used, "The aura of infallibility attending polygraph evidence can lead jurors to abandon their duty to assess credibility and guilt."
The scientists who spoke at the Department's public hearing at Lawrence Livermore National Laboratory this month said that they fear that a false positive could end their careers as quickly as a guilty verdict. And there is a great fear that the resulting distrustful work culture could hinder the lab's ability to continue recruiting and retaining the country's top scientific talent. Many of these scientists, virtually all of whom are patriotic and honest, said that they would rather take early retirement than face the prospect of random polygraph testing. If we hope to maintain our technological superiority in the world, we need to create an inviting environment, not one that is causing our most loyal incumbents to quit and seek employment elsewhere.
Given the reaction of the lab scientists to the proposal, the recent announcement by the FBI that the nuclear secrets identified in the Cox Report may not have been embezzled by a lab employee, and the concerns expressed by New Mexico Senators Jeff Bingaman (D) and Pete Domenici (R), I urge the Department to immediately suspend consideration of the existing polygraph plan.
I encourage the Department to implement this moratorium by,
(2) repealing the proposed polygraph program,
(3) replacing it with a scaled-down polygraph program that takes into account practical and scientific consequences of polygraph testing, and
(4) relegating polygraph testing from a primary determinant of loyalty to its appropriate and proportional role as one of many investigatory tools.
2. Which categories of lab employees would be subject to polygraph testing?
3. How would polygraph testing be used differently for different categories of lab employees?
4. How many Department and laboratory employees would be subject to polygraph exams under the Department's proposed program?
5. How many employees of Department contractors will be subject to polygraph exams?
6. How often would lab employees be subject to polygraph testing?
7. What will the Department's procedure be for handling an employee who fails a polygraph examination?
8. How will the Department account for and adjudicate false positives?
9. How will the Department handle the potential negative and career-threatening impact of a false positive?
10. How will polygraph test results be archived?
11. Who will have access to an employee's polygraph test results?
12. How will an employee clear his or her record of a false positive?
13. Will failure to pass a polygraph test be the sole reason for disciplinary action against an employee?
I look forward to working closely with you and our national laboratories in drafting and implementing our new security plan. Thank you for your attention to this letter and for providing answers to the above questions. If I can be of assistance to you on this or any other matter, please do not hesitate to call.
ELLEN O. TAUSCHER
Member of Congress