I have been reading the recently released "Final Rule" for the 10 CFR 709 "Polygraph Examination Regulation". This is a fearful and Orwellian document describing a system where the subject is denied basic constitutional rights, has no right of appeal and cannot see either the raw data from his examination or the analysis of that data. The document is poorly written and badly organized--possibly intentionally-- making it difficult to pull together the pieces in a way that the process can be understood. When General Habiger visited LANL, we were assured that the only thing DOE was concerned about was whether we were in the employ of another government. It appears that DOE has intentions of going far beyond that limitation. A Critique of the New DOE Polygraph Policy
James L Munroe
Los Alamos, New Mexico
jimmun@earthlink.net
December, 1999Most of the document is devoted to dismissing comments and testimony as having no merit. It is noteworthy that the fundamental question about the validity of lie detectors is not dismissed but pushed aside with the statement:
DOE concludes as a matter of law that it is no longer free to act favorably on comments arguing generally against establishment of a counterintelligence-scope polygraph examination program because of information and claims about deficiencies in polygraph reliability (p. 10)
In other words, lie detectors may be of questionable validity but DOE will proceed anyway.
DOE ignores the important issue that lie detector testing was never a condition of employment for most of the people targeted for the testing. When I came to LANL more than 20 years ago, a lie detector test was neither an implicit nor an explicit condition of employment. DOE is imposing examination by lie detector as an ex post facto condition of employment. It is very different when lie detector testing is made a condition of employment at the time of hiring. The applicant can then consider that requirement when he decides whether or not to accept employment. I suspect that when taking a lie detector test becomes a condition of employment, LANL will have a very difficult time recruiting the caliber of scientist that it needs. I am disappointed that laboratory management and the University of California are silent on even these aspects of the proposed lie detector program.
Consent by the Subject
The Orwellian nature of this process is most clearly shown by the requirement that the subject give his written consent, both before and after the examination. DOE has dropped the word voluntary but states:
DOE may not administer a polygraph examination unless DOE has obtained written consent from the individual (p.30)
and:
DOE and its contractors must deny an incumbent access to any position in section 709.4(a)(1)-(8), consistent with section 709.5 if the individual refuses to take a counterintelligence polygraph examination. (p. 31)
and to avoid any ambiguity:
"DOE recognizes that in some instances, the individuals skills are intrinsically linked to a program identified in section 709.4(a)(1)-(8) and access to that program being denied, it may not be possible to reassign that individual within the local commuting area. In such circumstances, DOE may have no reasonable option than to terminate that individual's employment (p.32)…DOE believes that contractor employees should be treated similar to federal employees under this regulation whenever possible (p. 33)
The specialized skills in the groups targeted for lie detector testing would seem to make them very strong candidates for termination should they refuse to submit to the testing or should they refuse to agree to the statements on the consent form.
A Possible Felony
The threat of losing one's job and career by refusing to submit to the lie detector test is thus very real. Regardless, DOE describes the terms on the consent form that the subject is being asked to sign as follows:
The individual is asked to sign a form that states that the individual consents to the polygraph examination and that no threats have been made or promises extended to the individual to obtain his or her agreement to take a polygraph examination.(p. 41)
If the subject feels that he is being threatened with a loss of job and career and that is the reason he is agreeing to submit to the lie detector test, signing this form could reasonably be construed as lying to a government official, which could be prosecuted as a felony. One need only look to the prosecution of Henry Cisneros, the former Secretary of HUD, to see what a simple lie can lead to. DOE is mandating that the subject sign a possibly false statement in order to keep his job.
Loss of Constitutional Protections?
Why is DOE requiring that the subject sign a form containing a potential falsehood? The answer is that DOE interprets the signing of this form as waiving the protections of the fourth and fifth amendments:
The proposal does not violate the Fourth Amendment because an individual must give his or her consent before taking the polygraph examination. The fifth amendment is not violated because the proposal provides an individual an opportunity to consult with an attorney and contains a statement of the privilege against self-incrimination (p. 17)
DOE's sensitivity to the right against self-incrimination is given very clearly in the following excerpt:
…before administering the examination, the examiner must advise the individual of his or her privilege against self-incrimination. DOE recognizes and respects the individual's privilege in this regard. However, exercise of that privilege will constitute a refusal to submit to the examination or a termination of the examination (p. 45)
Any attempt to exercise basic constitutional rights will be "respected" by DOE but will lead to a termination of the examination and likely to a loss of employment.
DOE is retaining the option to turn information learned during this process, regardless of whether it bears on espionage, over to whomever it deems appropriate. If this information were learned under duress, it would be "tainted" and unusable but since it is given "voluntarily", there are no restrictions on its further use.
The DOE interpretation of the fifth amendment is rather bizarre since the fifth amendment is a protection against being forced to testify against yourself. This whole process is about nothing else than forcing somebody to testify against himself. Having access to a lawyer does not circumvent the fifth amendment. Furthermore, DOE is not allowing a lawyer to be present during the lie detector test or any "in-depth interview" that follows:
DOE believes that the presence of legal counsel or other witnesses in the examination room would be a distraction to the individual and the examiner and would interfere with conducting the examination.(p. 40)
Legal counsel or witnesses may not be present in the examination room or during any interview that may occur as part of the polygraph examination. (p. 40)Anybody arrested while committing armed robbery or mayhem would be granted fourth and fifth amendment protections and be accorded the presence of an attorney during any interrogation. A DOE employee or contractor seeking to keep his job will be treated far more harshly. Signing the consent form is not unlike signing a blank confession.
The "In-Depth Interview"
There are some limitations on what can be asked during the actual lie detector test, when the subject is actually wired up. However, if the lie detector operator decides that there are "unresolved issues" (a subjective judgment), the subject undergoes an "in-depth interview" The definition of "unresolved issues" is very vague:
Unresolved issues refers to an opinion which indicates that the analysis of the polygraph charts revealed consistent, significant, timely physiological responses to the relevant questions in personnel screening (p. 68).
DOE chose not to define the term "in-depth interview". The only thing that is clear is that the subject is not attached to the lie detector at this point. The range of questions that the lie detector operator can explore during an "in-depth interview" seems unlimited:
DOE will explore only relevant topics that require resolution (p. 34)
Given that at this point, the subject has waived his constitutional protections, including the right to have an attorney present, and has no right of appeal, the subject is totally at the mercy of the lie detector operator.
Expertise, Secrecy and Reproducible Science
The lie detector operators receive a total of thirteen weeks of training (p. 54) supplemented by forty hours of continuing education each year (p. 53). With this limited training, they are allowed to conduct up to five examinations in any twenty-four hour period (p. 51). They are viewed as so infallible that their results are not subject to appeal or independent review:
DOE has decided that it is not appropriate to establish an appeals process..(p. 36)
DOE will not establish a policy of releasing written copies of examiners opinions and conclusions or the questions asked and charted responses…(p. 37)In addition, they see themselves accomplishing during a brief examination something that a psychiatrist would be reluctant to claim after conducting years of therapy:
…the polygraph examination provides an internal view of how the individual understands his or her behavior, a view that is rarely seen by anyone other than the individual (p. 19)
Whatever this means, it is far more than simply determining who is working for another government. They feel qualified to look into your soul.
The extreme secrecy of the whole process adds to the lack of confidence. The secrecy cannot to protect the subject, because even the subject is not allowed to see the raw data or the final report. In addition, DOE does not commit itself to keeping the results confidential within DOE so, by inference, DOE intends to supply the results to other agencies and organizations as it sees fit. The concerns with protecting "investigative techniques of the Department" (p. 37) implies that the testing will not be a simple question and answer session but will involve subterfuge. Not allowing the data to be released, even with the consent of the subject, eliminates any possibility of peer review. By inference, DOE must be concerned that its techniques would not bear up under expert scrutiny or that their results would not be repeatable. Avoidance of expert peer review undercuts any claims of the process being scientifically sound.
Conclusion
The proposed lie detector testing has no safeguards or protections for the subject and is a major assault on civil liberties. The lie detector operator is granted absolute power without appeal or independent review. The subject is required to waive his constitutional protections, probably unwittingly, by signing a consent form. For most subjects, the consent form contains a major falsehood, a statement that "no threats have been made or promises extended" when in fact the threat of termination of employment is very real. Signing the consent form with this falsehood could be a felony.
Submitting to the lie detector testing will be a difficult personal decision and places a lot of confidence in the lie detector operators. However, if one does submit, it may be wise to request a written clarification that the subject is submitting under duress, motivated by the threat of loss of employment. One should point out that signing this form, as is, could constitute a felony.
The lie detector operators are here because DOE is convinced that the workforce is replete with people who pose a danger to national security. They will likely feel pressure to show how widespread these dangers are and how necessary their process is. When they cannot find any espionage, they may well focus on any malfeasance by the subject. There are no limits on DOE pursuing any misbehavior, even those far removed from espionage, during the "in-depth interview".
For those not yet subject to this program of lie detector examinations, be aware that these programs tend to grow and not shrink. The numbers subject to lie detector testing was recently reduced but not in a way that looks very permanent. For you who may feel removed from this process, I finish with a poem attributed to Pastor Martin Niemoller, the outspoken German anti-Nazi:
First they came for the Communists,
and I didn't speak up,
because I wasn't a Communist.
Then they came for the Jews,
and I didn't speak up,
because I wasn't a Jew.
Then they came for the Catholics,
and I didn't speak up,
because I was a Protestant.
Then they came for me,
and by that time there was no one
left to speak up for me.