on the proposed
at a public hearing of the
Department of Energy
Washington, DC
September 22, 1999
If it is imposed against the will of the affected employees, polygraph testing could actually damage the national security that it is intended to protect. From a policy perspective, the proposed rule is internally inconsistent, reflecting the absence of consensus about the validity of polygraph testing. The Department should provide a technical justification for its proposed polygraph program, if it can. Otherwise, the proposed rule should be abandoned, and Congress and the White House should be notified that polygraph testing at the national laboratories would not achieve its intended purpose.
Polygraph Testing May Not Effectively 船eter' Unauthorized Disclosures
The Department asserts that "A counterintelligence-scope polygraph examination both serves as a means to deter unauthorized disclosures of classified information and provides a means for possible early detection of disclosures to enable DOE to take steps promptly to prevent further harm to the national security." [1]
But experience suggests that this premise -- the presumed ability of the polygraph to deter unauthorized disclosures -- is not valid.
In the intelligence agencies where the CI-scope polygraph is used on all employees, unauthorized disclosures of classified information are not effectively deterred. In fact, they are on the rise.
Thus, at a February 2, 1999, hearing of the Senate Armed Services Committee, Director of Central Intelligence George J. Tenet and Defense Intelligence Agency Director Lt. Gen. Patrick Hughes expressed their concerns about growing leaks of classified intelligence information to the news media. "Our government is hemorrhaging (sensitive information) in a way that I have never seen in my lifetime," Tenet said. [2]
Therefore, contrary to the premise of the proposed rule, it appears that the polygraph is not an effective deterrent to the unauthorized disclosure of classified information.
DOE has stated it believes that its proposed rule "will be perceived as fair by most potential employees and will protect the legitimate interests of existing employees." [3]
But as the Department must be aware, the proposed rule has already generated substantial opposition among employees who doubt its validity and propriety. According to the Director of the Los Alamos National Laboratory, the issue "has created great anxiety within the laboratory" and "the initial response suggests that there will most likely be a very strong impact" on "our ability to retain existing employees and attract new employees." [4]
This is a crucial point. If the polygraph requirement significantly diminishes the ability of the Labs to retain and attract employees, then the Department will have caused what no foreign adversary and no spy has ever been able to accomplish-- the weakening of the national security technology base. It is after all the employees of the national laboratories-- rather than documents or computers-- that hold the promise of innovation in national security science and technology and that are the labs' most precious asset.
It may be noted that it makes no difference whether the employees' concerns about the polygraph are justified or whether they are merely unfounded prejudices. If a significant fraction of the workforce is "deterred" by polygraph testing, the resulting damage to national security will be real enough.
If the Department finds that there is indeed widespread opposition to polygraph testing among its employees, it should immediately notify the Congress and White House that implementation of the proposed rule could cause damage to the national security, and it should seek immediate relief from any polygraph requirement.
In a recent report, the Senate Select Committee on Intelligence noted the "potential unreliability" of polygraph testing and called for the assessment of alternatives:
Similarly, the Joint Security Commission that was established by the DCI and the Secretary of Defense called for "research [to] explore other methods of detecting deception that could be used in conjunction with or in place of the polygraph." [6]
In this shifting climate of expert opinion, the Department's proposal to increase official reliance on polygraph testing seems backward-looking and inappropriate.
a. Unless the polygraph is 100% valid, use of the exculpatory polygraph exam should be abandoned.
The concept of an exculpatory polygraph examination, initiated at the request of an employee suspected of misconduct, appears to presume the 100% validity and reliability of the polygraph for such a purpose. But if this presumption is not accurate, then exculpatory polygraphs could be dangerous and should be reconsidered.
The proposed use of the polygraph to "exculpate" a suspect fails to address the potential use of countermeasures by the suspected employee, and the resulting potential for a "false negative" (i.e. an incorrect finding that a deceptive person is telling the truth).
Without a firm scientific basis, a reliance on the polygraph to "clear" suspects in this way could pose an affirmative threat to national security, particularly since it might be precisely the genuine spy or other malicious person who could manipulate the polygraph examination to his advantage. As the congressional Office of Technology Assessment observed:
Discussion of countermeasures is conspicuously absent from the proposed rule, and has evidently been dismissed by Department counterintelligence officials. Edward Curran, head of DOE counterintelligence, said concerning the use of countermeasures that he has "never seen it work yet." [8] But this is a tautology, which merely amounts to saying that the successful use of countermeasures to avoid detection has never yet been detected.
Contrary to DOE's claim, the effective use of countermeasures has been demonstrated and -- unlike most positive claims concerning polygraph validity -- described in the peer-reviewed scientific literature. [9] The Joint Security Commission reported to the CIA and the Defense Department that
Failure to address this question of countermeasures is a major flaw in the proposed policy.
If the polygraph were 100% valid and reliable, then its use for exculpatory purposes would make perfect sense. Since that is evidently not the case, such use poses a potential threat to national security.
b. If it is 100% valid, then use of the polygraph should be expanded to include full-scope examinations.
If the polygraph reliably detected deception, its use should be expanded well beyond what has been proposed.
If the polygraph were demonstrably valid, then employees with access to sensitive information should be subjected to a full-scope examination, not just a counterintelligence-scope examination.
After all, there is unlikely to be a single terrorist or saboteur among current employees, and probably no more than a few who have improperly divulged classified information. In contrast, it is far more probable that there would be employees who suffer from substance abuse or financial problems or other potential precursors to serious security violations. If the polygraph is a valid instrument for detecting deception, it should be utilized to identify these potential security vulnerabilities.
If the Department believes in the fundamental validity and reliability of the polygraph, it is unclear why it would forgo polygraph testing for such an important and potentially productive purpose.
c. The question of polygraph validity must be confronted.
The validity of polygraph testing as a means of detecting deception is the underlying question that cannot be escaped. Only the answer to this question can determine whether, how, and to what extent the polygraph is used.
Unfortunately, as the Joint Security Commission reported in 1994, "the scientific validity of the polygraph is yet to be established."
Further:
Without an established scientific basis for the application of the polygraph, the controversy over its use will continue to fester. It is the Department's responsibility to provide such a basis-- or to withdraw its proposed rule.
So, for example, the State Department refuses to use the polygraph, even on those employees who have access to the most highly sensitive intelligence or nuclear weapons information. Likewise, there is no polygraph requirement for the National Security Council or for members of the congressional oversight committee staffs in the Congress, regardless of the sensitivity of the nuclear weapons information they may require. [13]
Will the Department now refuse to share certain information with the State Department, the White House, or its congressional oversight committees because their employees have not been polygraphed?
Alternatively, if rejection of the polygraph by senior State Department or White House officials is acceptable from a security policy point of view, on what basis would DOE impose testing on its own reluctant employees as a precondition for them to gain access to the same information?
This is a peculiar use of the word "voluntary." What DOE requirements are not "voluntary" in the narrow sense that an employee may refuse to comply with them? How would a "mandatory" or "involuntary" polygraph program differ from the proposed "voluntary" program?
Although there is a declared intent to provide alternate employment for employees who decline to submit to polygraph testing, this will not be a practical option in the event that there are many employees who so decline. As noted by the Director of Los Alamos National Laboratory:
The fact is that the proposed polygraph program is not, strictly speaking, voluntary because refusal to participate will have unfavorable professional consequences.
This is not merely a semantic quibble. Rather, it is one more factor that could undermine the validity of the polygraph test itself. As the congressional Office of Technology Assessment (OTA) observed:
In section 709.5 and elsewhere, employees and positions are described as "eligible" for polygraph testing, implying that some of them will be selected for testing and others will not. Is this the case? If so, what will be the basis for selecting among the eligible positions? If all of the described positions are in fact subject to testing without exception (except for the mysterious national security waiver), then the word "eligible" should not be used.
The Background to the proposed rule refers to the polygraph as a "useful investigatory tool" and says that DOE proposes to use the polygraph examination results as an "investigative tool." This blurs the important distinction between the using the polygraph for employee screening -- the validity of which is contested -- and using it for the investigation of a specific incident -- a practice for which there is some documented support. The rule appears to propose the use of the polygraph for screening-- not for incident-specific investigation.
If an employee has a complaint about his polygraph experience, where should he turn? Who will monitor the conduct of the polygraph program to see if one examiner is generating a disproportionate share of "unresolved" issues? If over time the polygraph program produces a serious negative impact on the workforce at the national laboratories, who will sound the alarm? And so forth.
If the proposed rule goes forward, the Department should provide answers to these and related questions concerning oversight.
1. 64 Federal Register 159, August 18, 1999, at page 45063.
2. John Diamond, "North Korea Said Increasingly Volatile," Associated Press, February 2, 1999; Keith J. Costa, "U.S. Intelligence Officials Say Leaks To Media Harm National Security," Inside the Pentagon, February 4, 1999.
3. 64 Federal Register 159, August 18, 1999, at page 45063.
4. "Ask the Director: Special Polygraph Edition," Los Alamos National Laboratory, August 6, 1999; posted at www.lanl.gov/orgs/pa/News/director_answers18.html, question 15. A number of employees have already declared their intent to refuse to undergo polygraph testing. See "Ask the Director: Second Special Polygraph Edition," Los Alamos National Laboratory, August 27, 1999; posted at www.lanl.gov/orgs/pa/News/director_answers21.html, questions 9 and 10.
5. Senate Report 106-48, Intelligence Authorization for FY2000, Senate Select Committee on Intelligence. See also Steven Aftergood, "How Not to Combat Chinese Espionage," Los Angeles Times, July 4, 1999; and Walter Pincus, "Senators Question Polygraph Use," Washington Post, July 24, 1999.
6. Redefining Security, a report of the Joint Security Commission, 1994, page 70; posted at www.fas.org/sgp/library/jsc/index.html.
7. Scientific Validity of Polygraph Testing: A Research Review and Evaluation, Office of Technology Assessment, November 1983, Chapter 7, page 101; posted at www.fas.org/sgp/othergov/polygraph/ota/index.html.
8. Tim Beardsley, "Truth or Consequences," Scientific American, October 1999.
9. C.R. Honts, et al, "Mental and physical countermeasures reduce the accuracy of polygraph tests," Journal of Applied Psychology, 1994, 79, 252-259; cited in David T. Lykken, A Tremor in the Blood (Plenum Press, 1998). See especially Lykken's Chapter 19, "How to Beat the Lie Detector."
10. Redefining Security, a report of the Joint Security Commission, 1994, page 65; posted at www.fas.org/sgp/library/jsc/index.html.
11. Ibid., page 65.
12. Ibid., page 70.
13. As noted in Ibid., Appendix C, p. 148.
14. "Ask the Director: Second Special Polygraph Edition," Los Alamos National Laboratory, August 27, 1999; posted at www.lanl.gov/orgs/pa/News/director_answers21.html, question 7.
15. Scientific Validity of Polygraph Testing: A Research Review and Evaluation, Office of Technology Assessment, Nov. 1983, Chapter 7, p. 101 (emphasis added).
Polygraph Testing May 船eter' Qualified Employees
Unfortunately, however, polygraph testing may have an unintended "deterrent" effect among current and future employees that will damage the Department's ability to attract and retain the finest scientific and technical personnel.There is Growing Skepticism About Polygraph Validity, Reliability
The Department's proposal to expand the use of polygraph testing is untimely, because there is growing sentiment among security experts and others that the polygraph is a flawed instrument that should be phased out and ultimately replaced.
Given the potential unreliability of the polygraph system, the Committee believes that alternatives to the polygraph should be explored. The Committee understands that alternatives to polygraphing exist and have been explored by several agencies, including the CIA and the FBI. Therefore, the Director of Central Intelligence and the Director of the Federal Bureau of Investigation jointly shall conduct an assessment of alternative technologies to the polygraph for use in counterintelligence programs. [5]
The Proposed Polygraph Policy is Incoherent
If the validity of polygraph testing cannot be demonstrated, then DOE's proposed policy goes much too far. On the other hand, if it could be demonstrated that polygraph testing reliably detects deception, then its use should be expanded beyond what has been proposed.
Those individuals who the Federal Government would most want to detect [for national security violations] may well be the most motivated and perhaps the best trained to avoid detection. [7]
There is nothing to prevent a practiced deceiver from passing a polygraph examination. In fact, circumstantial evidence lending credence to this view was documented by a President's Foreign Intelligence Advisory Board study in 1988. [10]
Without established validity, the process lacks full integrity and appears more like trickery because information is obtained from subjects under the pretense that it is in their best interest to be forthright since false answers will be discovered.
[11]
The Commission believes that it is imperative the government establish the validity of the polygraph for personnel security screening. In the absence of admissions, the ability of the polygraph to distinguish between truthful and deceptive reactions is critical. While the Commission recognizes the difficulty of designing and conducting validity research on the screening polygraph, the dearth of such research is not acceptable. [12]
Inconsistent Use of the Polygraph Within the Government is Problematic
One consequence of the lack of consensus over polygraph testing is that the polygraph is applied inconsistently within the U.S. Government, with anomalous results. "Voluntary" Tests May Yield Distorted Results
The proposed polygraph tests are repeatedly described as "voluntary," even though refusal to submit to polygraph testing may have adverse professional consequences (see Sec. 709.14).
I admit that I will not be able to find thousands of unclassified jobs for our people whose jobs are identified to be in the [polygraph] program and who refuse to partake.[14]
It is generally recognized that, for the polygraph test to be accurate, the voluntary cooperation of the individual is important.... The polygraph only detects physiological arousal, and under involuntary conditions, the arousal response of the examinee may be very difficult or impossible to interpret.... Overall, OTA concluded that imposing penalties for not taking a test may create a de facto involuntary condition that increases the chances of invalid or inconclusive test results. [15]
Other Language Issues: 薦ligible' and 選nvestigative'
There are at least two other puzzling uses of language in the proposed rule.Oversight is Neglected
The proposed rule makes no provision for internal or external "oversight" of the conduct of the polygraph program.
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