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PREPARED STATEMENT OF MARK S. ZAID, ESQ.*

BEFORE THE COMMITTEE ON JUDICIARY,
UNITED STATES SENATE

WEDNESDAY, APRIL 25, 2001

"ISSUES SURROUNDING THE USE OF POLYGRAPHS"

Mr. Chairman, distinguished members of the Committee, thank you for the opportunity to appear before you and offer my comments on issues surrounding the federal government's use of polygraphs. I applaud the Committee's interest in this topic.

This is, of course, an extremely important and timely topic. In the wake of the arrest of FBI Special Agent Robert Hanssen on espionage charges, there has been a knee-jerk reaction that something more must be done to better protect our national security interests. I fully agree with that sentiment. However, every time a spy is caught, or a lapse in security is detected, a public outcry for change erupts.[1] And each time this occurs there are those who lobby to expand the use of polygraph examinations as the means by which to expose those who would betray our nation, steal our secrets or just simply lie while a federal employee. We must not react so quickly to these understandable concerns. Unfortunately, the FBI has already caved in to public pressure and expanded its polygraph testing in order to quell the flames of this more recent outcry. Yet, expanding polygraph use is more akin to throwing gasoline on the embers of a dying fire. Even when assuming the utility of the device, the polygraph machine causes far greater harm to our country than creates a benefit.

For nearly the last two years I have represented unsuccessful applicants for federal employment who have fallen victim to the government's polygraph policies. Presently, there are two lawsuits, which are the first of their kind, pending against the Federal Bureau of Investigation ("FBI"), Drug Enforcement Administration and the United States Secret Service ("USSS") that challenges their use of pre-employment polygraph examinations.[2] I also routinely represent or advise current federal employees or government contractors within the law enforcement and intelligence communities who encounter difficulties in security matters, which oftentimes involves polygraph examinations.

My testimony today will address the existing policy issues surrounding the use of polygraphs by the federal government, the manner in which federal agencies utilize the device and the consequences that arise from its use. I will also briefly summarize the legal issues pending in the two civil lawsuits. While I will not present detailed evidence regarding the science of the device, given that there are those far more qualified than I testifying on this aspect, I will cite to specific scientific studies where relevant.

Overview Of Testimony

With my testimony, I wish to emphasize six key points. In listening to today's testimony, this Committee should not be under the mistaken impression that the science will determine the outcome of the policy. In the end, the continuation of the current federal polygraph programs requires a hard policy choice involving equating a balance between harm and benefit. My key themes unequivocally tilt that balance against utilizing the device.

What Actually Is A Polygraph?

A modern polygraph machine measures respiration at two points on the body; on the upper chest (thoracic respiration), and on the abdomen (abdominal respiration). Movements of the body associated with breathing are recorded such that the rate and depth of inspiration and expiration can be measured. The polygraph machine also measures skin conductance or galvanic skin response. Electrodes attached to the subject's fingertip or palm of the hand indicate changes in the sweat gland activity in those areas. In addition, the polygraph measures increases in blood pressure and changes in the heart rate. This measurement, known as the cardiovascular measurement, is obtained by placing a standard blood pressure cuff on the subject's upper arm. Finally, the polygraph may also measure, by means of a plethysmograph, blood supply changes in the skin which occur as blood vessels in the skin of the finger constrict due to stimulation.

A polygraph examiner purports to interpret these readings while asking a series of questions. The examiner forms an opinion of the subject's truthfulness by allegedly comparing the physiological reactions to each set of questions. A number of extrinsic factors, however, effect polygraph validity. Because the examiner must formulate the questions, supplement the data with his own impression of the subject during the exam, and infer lies from a combination of the data and his impressions, the level of skill and training of the examiner will effect the reliability of the results. A polygraph examiner's interpretation of polygraph results is not, in fact, true evidence of conduct. It is merely the opinion of an individual with no knowledge about any of the facts surrounding the subject matter of the questions.

"The roots of the modern lie detector stretch back to antiquity. Like modern methods, early techniques to ferret out lies often relied on the behavior exhibited by liars - sweaty palms, dry mouth, shifting gaze, racing pulse. In China, for example, suspected liars were fed a handful of dry rice. If they could spit it out, the thinking went, they were telling the truth. If the rice stuck to their tongue, they must have something to hide."[4]

Past Congressional Positions Against Polygraph Use

This hearing, of course, is not the first time the Congress has directed its attention to polygraph policies. Congressional representatives and Committees have consistently derided the use of polygraph examinations. Some examples follow.

The late Senator Sam J. Ervin, Jr., once stated about polygraph testing that

In 1964, a subcommittee of the House Government Operations Committee concluded that there was no adequate evidence to establish the validity of the polygraph.[6] In 1974, a House Committee chaired by Congressman Moorehead recommended that polygraph usage "be completely discontinued by all government agencies for all purposes."[7] In 1979, the Oversight Subcommittee of the Select Committee on Intelligence of the U.S. House of Representatives was notified that polygraph testing was a central component of the preemployment screening process for applicants for positions in most federal law enforcement and intelligence agencies. Approximately 75% of those denied security clearances by the CIA or NSA resulted from the polygraph. Based in part on this information, the subcommittee urged the director of the CIA to institute research on "the accuracy of the polygraph in the pre-employment setting and to establish some level of confidence in the use of that technique."[8] To date, no credible research supporting the use of preemployment polygraph screening has been published.

In November 1983, the Office of Technology Assessment ("OTA") issued a report entitled "Scientific Validity of Polygraph Testing: A Research Review and Evaluation". The report concluded that "the available research evidence does not establish the scientific validity of the polygraph test for personnel security screening" and that the "mathematical chance of incorrect identification of innocent persons as deceptive (false positives) is highest when the polygraph is used for screening purposes."[9]

Particularly in light of this report, additional hearings were held and The Employee Polygraph Protection Act of 1988, 29 U.S.C. sec. 2001 et seq., was ultimately enacted.[10] It generally prohibits the private sector from using polygraphs in preemployment screening and sharply curtails the permissible uses of the polygraph in specific-incident investigations. Prior to the enactment of this legislation, it was estimated that a minimum of 400,000 truthful employees were wrongfully labeled deceptive and suffered adverse employment consequences each year. The federal government, however, exempted itself from the provisions prohibiting preemployment testing.

On September 29, 1997, Dr. Drew C. Richardson, a FBI Supervisory Special Agent, testified before the Senate Judiciary Committee and condemned the use of the polygraph machine. He testified, in part, that "[w]ithin the Bureau, polygraph examiners who have little or no understanding of the scientific principles underlying their practice, report to mid-level managers who are largely ignorant of polygraph matters. These mid-level managers in turn report to executives, who have real problems for which they seek needed solutions (e.g., the need to protect national security from the danger of espionage, and the need to hire employees with appropriate backgrounds). These executives are left unable to evaluate that polygraph is not a viable solution and do not comprehend that ignorance and mis-information are built into their own command structure."[11]

Most recently, the FY2000 Intelligence Authorization Act asserted that "[p]olygraphing has been described as a 'useful, if unreliable' investigative tool." The Senate Intelligence Committee instructed the Central Intelligence Agency ("CIA") and FBI to assess "alternative technologies to the polygraph" and report back to the Committee within ninety days.[12]

The Federal Government's Use Of Polygraph Screening Tests

The majority of those circumstances where a polygraph is utilized is in the screening of federal applicants for employment or a current federal employee. The questions will typically differ between applicants and current employees. The former will have to respond to lifestyle questions (drug usage, sexual activities), while the latter is predominantly limited to counterintelligence questions (unauthorized disclosure of classified information, contact with foreign personnel). Depending upon the agency, the format of the test will also differ.

There are no peer-reviewed scientifically accepted studies that demonstrate the validity of such screening tests. Even the government's own experts agree on this point.[13] Thus, unlike an investigation into a specific crime, there is no particular reason why a screening examination is being administered in that no specific allegation is being explored that has a perceived basis of merit. The tests are nothing more than fishing expeditions.[14]

Applicants For Federal Employment

Federal agencies use the polygraph machine in preemployment settings in order to indiscriminately weed out individuals and avoid the need to conduct an in-depth background investigation. This permits the agency to avoid spending time and resources on individuals they may possibly later seek to reject from employment.[15] As a result, however, thousands of innocent individuals are falsely labeled drug users, drug dealers, terrorists and/or spies without any reasonable opportunity to ever clear their name.[16] After receiving a false-positive reading that falls outside an agency's defined acceptable parameters, the applicant is simply left out in the cold while the agency continues to maintain the posture that the applicant is a liar. The applicant's conditional offer of employment is immediately rescinded.

Although applicants and employees will be told their polygraph results will be kept confidential, the information is often shared with other intelligence and law enforcement agencies, whether that be federal, state or local. Sharing is permitted through the routine use exception of the Privacy Act.[17] Not only does this result in irreparable harm to these applicants, but it denies the federal government's access to qualified and capable employees. Yet when it suits the federal government's needs, an agency will not hesitate to overlook an otherwise deceptive polygraph reading or denounce the polygraph as unreliable.[18]

Current Federal Employees

The extent to which current federal employees are subject to polygraph testing, and the consequences from an inconclusive or deceptive reading, varies from agency to agency. Those agencies that do conduct polygraph testing of their employees, particularly from within the intelligence community, typically conduct routine counterintelligence examinations every five years or so. Depending upon the results, employees may face adverse personnel actions, loss of their security clearance[19] or administrative limbo.

More detailed examples are below.

Utility Versus Policy

In debating the need for the polygraph, you will often hear how successful the device has been in enticing examinees to confess to all sorts of crimes or acts. There is no significant dispute that use of the polygraph has indeed led to confessions. The question is what prompted the confession? The answer is that it is often not the polygraph as a device, but the method of interrogation that led to the confession. The perceived false notion that polygraph machines accurately detect lies can lead to the extraction of confessions from those who are either not that bright, as with many criminals, or who simply genuinely believe in the utility of the device. Law enforcement personnel throughout this country all have stories of how suspects have been persuaded to confess because of the use of a "lie-detector". Yet, the device was nothing more than a police car antenna (a law enforcement officer would honk the horn after the individual provided a "false" response) or a photocopying machine (which would print out a piece of paper that indicated the suspect was "lying").

The scientific community, as well as the government, admits to the existence of false-positives, identifying someone as guilty when they are really innocent, though the figures vary. Still, in announcing the FBI's intention to expand its polygraph program, Attorney General John Ashcroft admitted in a press conference that the false-positive rate is 15%.[20] Yet, despite knowing that innocent persons will be falsely accused, no adequate protections exist in any agency to address this obvious problem. Moreover, the existence of false-negatives, i.e., guilty individuals who pass as innocent, significantly contributes to the failure of the government's polygraph policies. Those who successfully generate a false negative response, of course, have avoided being caught. Yet, those who unfortunately generate a false-positive fall victim to an unending process of scrutiny when they have done nothing wrong.

Former FBI Special Agent Mark Mallah's experiences illustrate the problem. In January 1995, he was asked to undergo a polygraph test. The examination was a routine national security screening. Special Agent Mallah was not under suspicion at the time. However, following the examination, he was accused of "deception" with respect to the question on unauthorized contact with foreign officials. Two weeks later, he was instructed to report to Washington, D.C. where he underwent two additional consecutive days of polygraph examinations and lengthy interrogations. The polygraphers continually insisted that he was being deceptive, but Special Agent Mallah continually denied the accusations. He was then placed on administrative leave with pay pending further investigation.

The FBI conducted a major and intrusive investigation which included the raiding of his home and seizure of personal belongings. For a two month period, he was even placed under twenty four hour surveillance, seven days a week. The FBI interviewed numerous friends, acquaintances, former roommates, colleagues, and members of his family. The FBI even accused one of his friends of being an accomplice and administered a polygraph test, which the individual "passed". Special Agents showed up unannounced and surprised his wife at her place of work, and asked to interview her right then and there. When she was eventually interviewed, the FBI asked her to also take a polygraph, which she declined to do. The FBI asked both of Special Agent Mallah's brothers to take a polygraph test. One agreed, and he "passed." Another Special Agent told one of Special Agent Mallah's friends that there was "significant evidence" against him. This same agent told Special Agent Mallah's brother he was certain that he was guilty.

After five months of investigation, he returned to work as a Special Agent entrusted with a "top secret" clearance, a weapon and a badge. Yet, despite his reinstatement, the "problem" still existed. In October 1995, the FBI wrote that he was "the subject of a security reinvestigation involving your inability to resolve issues relating to your associations with foreign nationals...as well as your susceptibility to coercion as a result of your concealment of these matters." No specifics were ever provided, and Special Agent Mallah still denies to this day that these allegations had any merit. Finally, the investigation was terminated in September 1996, nearly two years after it began. The final outcome was a letter of censure and a two week suspension for a trivial administrative issue and a minor discrepancy in his FBI employment application. The letter of censure was silent about unauthorized contacts with foreign officials, which was the alleged national security issue that launched the investigation in the first place. Even though he had been finally exonerated, in disgust with what occurred, Special Agent Mallah voluntarily resigned from the FBI with a clean record.

Current Federal Use Of Polygraph Examinations

Polygraph examinations are administered throughout the federal government, primarily by those agencies within the law enforcement and intelligence communities. Those agencies that are more heavily utilizing the device now include the FBI, USSS, CIA, Drug Enforcement Administration, National Security Agency, Department of Energy, Department of Defense, Bureau of Alcohol, Tobacco and Firearms, Defense Security Service, and the U.S. Marshall's Service. Of course, polygraph use applies not only to federal employees, but also to independent contractors as well.

"The polygraph ... has achieved a new status in the world of counterintelligence in the past five years. The CIA and the FBI have polygraphed at least 40,000 job applicants and employees in their search for drug users and would-be spies. According to intelligence and law enforcement officials, the polygraph has become the nation's number one tool for safeguarding national security against penetration by foreign agents."[21]

Though polygraphers for federal agencies all receive the same initial training at the Department of Defense's Polygraph Institute, the manner by which a polygraph is administered will vary between agencies. Of course, the abuses that occur also vary between agencies. Some examples are detailed below.

Federal Bureau of Investigation

The FBI has had a long history with the polygraph. In the late 1930s, J. Edgar Hoover, the icon director of the FBI, frowned on its use because of a misidentification of a kidnapping suspect in Florida. It was generally prohibited after this episode for decades, except for use in limited circumstances. Throughout the tenures of different directors, the question of polygraphing current employees every five years on areas of espionage and sabotage routinely arose. Indeed, Judge William Webster considered expanding the program in 1978. The proposals were always rejected.[22] In the wake of the Aldrich Ames case, the current FBI Director, Louis Freeh, also rejected implementation of routine polygraph examinations of employees.[23]

However, the FBI did modify its policy in March 1994, to polygraph any applicant for a full-time position with the FBI, no matter the individual's level of responsibility. The FBI's polygraph screening focuses exclusively on counterintelligence issues, the sale and/or use of illegal drugs, and the accuracy and completeness of information furnished by applicants in their employment applications. It has been estimated that approximately 20%-40% of all FBI employee candidates each year fail the polygraph examination, typically due to responses to the drug use question.[24]

In the wake of the Hanssen case, the FBI has recently expanded its polygraph screening program. By Memorandum dated March 16, 2001, the FBI announced that beginning March 28, 2001, it would institute counterintelligence-focused polygraph examinations to employees who occupied certain assignments or occupations.[25] It was estimated that approximately 500 employees would be polygraphed over the next sixty days. Id. at 3. With respect to those employees who experience trouble with the polygraph, the Memorandum noted:

Id. Those employees who refuse to take the test will be subjected to administrative actions which may include transfer, a finding of insubordination and disciplinary action or a reevaluation of the employee's security clearance. Id. at 3-4. Those who may encounter trouble with the FBI's polygraph will certainly take no comfort in knowing of the experiences of Special Agent Mallah. Nor are the FBI's assurances that no adverse actions will be taken based solely upon the polygraph results necessarily binding. The same assurances are falsely provided to applicants.

The FBI has noted in correspondence that it "uses the polygraph as an aid to investigation and considers it highly reliable when used by a competent and ethical examiner. It is one part of the screening process and is designed to address issues that may not be resolved by more traditional investigative methods."[26] Donald Kerr, the Assistant Director of the FBI's Laboratory Division, informed Senator Charles E. Grassley by letter dated October 28, 1997, that the polygraph "is not a substitute for, but merely one component of, a thorough and complete background investigation". Yet, an applicant who fails, or registers inconclusive during, a polygraph examination is automatically excluded from employment and their conditional employment offer is immediately rescinded.[27] No background investigation is conducted to verify the information, nor is the applicant provided a formal opportunity to challenge the polygraph results.[28]

Some of the specific concerns regarding the FBI's polygraph program includes:

I have included with my testimony copies of several sworn declarations executed by former FBI applicants who detail their ordeals at the hands of FBI polygraphers. See Exhibit "1".

Central Intelligence Agency

The call for the FBI to expand its polygraph program is often heard amidst statements that the CIA routinely polygraphs its employees. The intended message is that the CIA must then be more security conscience than the FBI, and that since the policy seems to be working over at the CIA, the FBI should follow suit. The fact, however, is that CIA's use of the polygraph is fraught with abuse and problems.

In the wake of the Aldrich Ames fiasco in 1994, the CIA vigorously implemented an intensive polygraph review. The result has been that in excess of 300 employees remain in polygraph limbo. These individuals registered a significant physiological response to a security question but there is little or no collaboration to support suspicion of wrongdoing. Many of these cases are referred to the FBI for further investigation where they are typically viewed with contempt, and accorded low priority because there is little to investigate. Yet, for the employees, this serves as the kiss of death to their career. No promotions will be granted, and no overseas assignments will be permitted. For a CIA employee within the Directorate of Operations, falling into this limbo is essentially the end of their career.[30]

Unfortunately, there is little that can be done to remedy this situation. The CIA makes it very difficult for these employees to retain legal counsel, and even more impossible for legal counsel to actually accomplish anything. The CIA will not release the governing regulations, primarily because it asserts the documents are classified. And even if counsel maintains a security clearance, the CIA will not permit access. On these types of issues, the CIA plays by its own rules.

Thus, it is not surprising that in 1997-98, CIA polygraphers reported to the Department of Justice's Public Integrity Section that they were instructed by CIA management to "fail" certain employees. Additionally, they revealed that they were taught how to sensitize examinees during pre-testing interviews so as to create the likelihood of false positives. Notwithstanding these sensational allegations, there is no evidence either the CIA or Department of Justice ever conducted an investigation.

Yet, the CIA's mistreatment of one of its former staff attorneys, Adam Ciralsky, provides further support for these allegations. The CIA fired Mr. Ciralsky and revoked his top-secret security clearance, in part, because he allegedly exhibited a "lack of candor" about relationships with associates who may have been tied to Israeli intelligence. Official CIA records, however, revealed that the CIA tried to manipulate Ciralsky's polygraph tests so as to transform demonstrably "non-deceptive" results into "deceptive" results. A CIA memo, written two weeks before Ciralsky's final polygraph, stated that CIA Director George Tenet "says this guy is outta here because of lack of candor. . . . Subject is scheduled for [another] poly. . . . Once that's over, it looks like we'll be waving goodbye to our friend." Thus, official records indicated that the CIA were set to base Ciralsky's dismissal on the outcome of a polygraph examination that he had yet to take. In fact, Ciralsky underwent and successfully completed counterintelligence polygraphs in 1993, 1996 and 1998, at which times his answers were consistently deemed to be "strongly non-deceptive." Yet when Ciralsky submitted to CIA polygraph examinations in August and October 1997, he was accused of "deception" with regard to issues and events which pre-dated, and hence were covered by, his earlier polygraphs.

Moreover, evidence exists that the CIA uses polygraph examinations as a means of retaliation against those employees who file EEO complaints or grievances. Within one to two months of filing such complaints, many employees have experienced a significant acceleration of their "routine" security reinvestigations, sometimes more than one to two years ahead of schedule. CIA employees typically will not face a periodic security reinvestigations until five years have passed, and because of budgetary and staff constraints many investigations do not occur until seven or ten years later.

United States Secret Service

Of all the agencies I have dealt with, I have received the most complaints concerning the conduct of USSS polygraphers. The stories I have been told have been genuinely consistent. The polygraphers have been abusive, hostile, arrogant, banged their fists on the tables or slapped their thighs and routinely yell or scream at examinees. Questions have been asked regarding marital infidelities and sexual relations with animals.[31] I have included with my testimony copies of several sworn declarations executed by former USSS applicants who detail their ordeals at the hands of USSS polygraphers. See Exhibit "2".

Although polygraph sessions are audiotaped, ostensibly in order to allow challenges to the manner in which examinations were conducted, the USSS steadfastly refuses to release the audiotapes, whether pursuant to the Freedom of Information Act, 5 U.S.C. sect. 552 (a) or through the legal discovery process.

Examples Of Other Systemic Problems Associated With Polygraph Testing That Occur Throughout The Federal Government

Many of the problems associated with polygraph testing are not isolated at one particular agency. Rather, they are endemic of the culture that exists within the federal government. Beyond those already identified above, these problems include:

The Polygraph's Failure To Expose Spies

Today, the outcry for increasing the use of polygraph examinations arises in the context of catching spies. Suspected spy Robert Hanssen was acknowledged never to have taken a polygraph examination during his entire FBI career. Yet, even if he had, the overwhelming likelihood is that this smooth operator would have passed. False-negative responses occur at a frequency far greater than false-positives. One of the most comprehensive studies conducted by the government of security screening polygraph examinations revealed a rate as high as 66%.[33]

In 1986 and 1991, Aldrich Ames, the former CIA official turned-spy, convinced his polygraph examiners that the deceptive readings he was allegedly displaying were easily explained away. As a result, Ames "passed" his tests. While the Ames case is indicative of wide-ranging problems that can arise solely through examiner conduct, it more importantly reveals that the polygraph had little deterrent value, at least for Ames, who had started his spying in 1985.[34]

Even worse, during the 1980s, approximately thirty Cubans who served as spies for the CIA passed extensive polygraph examinations. Following the subsequent defection of a Cuban intelligence officer and his debriefing, it was revealed that all of the CIA's "Cuban agents" were actually double-agents working for the Cuban Government. Each and every one of them had defeated the CIA's polygraph examinations.

In fact, it is a simple feat to defeat the polygraph, which undermines the entire purpose of utilizing it to determine the truth. The very persons most likely to be the subject of a polygraph examination can use any number of techniques to "truthfully" lie by using countermeasures. For those less skilled in the art of spycraft, various instructions on how to defeat the polygraph are publicly available in books and on the Internet.[35]

Legal Issues Surrounding Polygraph Challenges

The controversy surrounding polygraph reliability is not a subject unknown to the courts of this land. From the Supreme Court's decision upholding a blanket ban on the admissibility of polygraph evidence in military courts because "there is simply no consensus that polygraph evidence is reliable," United States v. Scheffer, 523 U.S. 303, 309 (1998), to the Ninth Circuit Court of Appeals decrying that the polygraph machine has developed the "misleading reputation as a 'truth teller'," United States v. Marshall, 526 F.2d 1349, 1360 (9th Cir.), cert. denied, 426 U.S. 923 (1976), step by step courts have limited the use of this alleged scientific device.

Surprisingly, in the wake of statutory prohibitions regarding the use of the polygraph as a screening device and continuing examples of its fallibility, federal agencies have increased their use of the device. The majority of applicants who are branded as liars by pre-employment polygraphs are invariably victimized by questions regarding drug usage. The events in question, i.e., incidents of marijuana being smoked, typically occurred years before the examination, often more than a decade earlier. Recalling the exact number of times is almost farcical, unless perhaps the applicant only used the substance once or twice on memorable occasions.

The fact that so many years have gone by significantly impacts upon the polygraph's reliability. United States v. Demma, 523 F.2d 981, 987 (9th Cir. 1975)(en banc) ("probative value of the [polygraph] evidence diminished by the lapse of time between the occurrence of the events and the taking of the test"). Of course, there is little difficulty for an applicant to recall the fact that they never used illegal narcotics even once in their life; a confession many government polygraphers seem to have trouble accepting based on their own personal biases.

As I mentioned above, the governments' polygraphers often have little sophisticated training and their professionalism ranges across the board. Some scream at applicants, pound their fists, ask inappropriate questions about sexual deviance, marital affairs and mental instability. Others may level accusations of lying, or even lie themselves in order to extract false confessions. Innocent victims of the polygraph are common, particularly because "[m]ultiple variables may influence the results of a polygraph test, including the motivation of the subject, his physical and mental condition, the competence, integrity, and attitude of the operator, the wording of the relevant questions, the appropriateness of the control questions, and the interpretation of the resulting graph." United States v. Givens, 767 F.2d 574, 585 (9th Cir. 1985). The bottom line is that "the polygraph test in fact relies upon a highly subjective, inexact correlation of physiological factors having only a debatable relationship to dishonesty as such. The device detects lies at a rate only somewhat better than chance." U.S. v. Piccinonna, 885 F.2d 1529, 1542 (11th Cir. 1989).

Applicants for federal employment

The two lawsuits that are now pending seek injunctive, declaratory and monetary relief for eleven plaintiffs pursuant to the Administrative Procedure Act, 5 U.S.C. sec. 701 et seq., the Federal Declaratory Judgment Act, 28 U.S.C. sec. 2201, and the Fifth Amendment to the Constitution of the United States. The first Complaint was filed on behalf of seven individuals on March 15, 2000. The second Complaint was filed for four individuals on October 11, 2000. Both complaints assert that the government is violating the plaintiffs' due process and privacy rights, as well as disregarding applicable agency regulations in rescinding employment offers based solely on polygraph results. The claims can be summarized as follows:

At this early stage in the litigation, the government has asserted the extreme position that applicants have no constitutional protections, that agency decisions to use polygraphs and then base suitability decisions upon the results are within their unchallengable discretion and that the only available relief exists through amending personnel records through the Privacy Act or reporting the alleged misconduct to the Office of Special Counsel. Unfortunately, these latter two suggested remedies offer nothing of the sort.[36]

The government's Motions to Dismiss both lawsuits have now been fully briefed, and the plaintiffs are awaiting the scheduling of oral arguments or a decision from the Court.[37]

CONCLUSION

No matter the science that may tend to support it, no matter the perceived utility that may be derived from it, the fact of the matter is that the use of polygraphs by the federal government consistently leads to false accusations against innocent persons of wrongdoing, and no adequate protections exist to prevent this from occurring. Moreover, the device routinely fails to identify those individuals who truly are committing criminal acts.

If the government truly wants to expose spies from within its ranks, it may wish to consider another creation of Dr. William M. Marston, the Harvard psychologist who many consider to be the father of the modern lie detector and the first to realize its commercial possibilities in the 1920s.[38] Marston, under his pseudonym "Charles Moulton", is probably more famous for having created the popular comic book character Wonder Woman. It is no coincidence that her magic lasso requires those who feel its bind to tell the absolute truth. To discover if other Robert Philip Hanssens exist among its ranks, the federal government may as well put its faith in Wonder Woman's magic lasso than to rely on the accuracy of the polygraph. Both are derived from notions of science fiction.

Our judicial system is designed to free ten guilty people in order to protect one innocent person from being punished. Continuing use of the polygraph stands that very principle on its head, and disgraces the honor and loyalties of many otherwise trustworthy and dedicated Americans. The utilization of polygraph examinations for screening purposes should, therefore, be stopped.

__________________________

* Of Counsel, Lobel, Novins & Lamont, 1275 K Street, N.W., Suite 770, Washington, D.C. 20005. Tel. No. (202) 371-6626; Fax No. (202) 371-6643; E-Mail: [email protected] Mr. Zaid specializes in litigation and lobbying on matters relating to international transactions, torts and crimes, national security, foreign sovereign and diplomatic immunity, defamation, the First Amendment, and the Freedom of Information/Privacy Acts. Additionally, Mr. Zaid serves as the Executive Director of The James Madison Project, a non-profit organization with the objectives of reducing secrecy, promoting government accountability, and educating the public on national security matters. The views expressed by Mr. Zaid are his own and do not necessarily reflect the views of any organization or entity with which he is or has been affiliated.

[1]For example, following the Walker family espionage cases in 1985, Defense Secretary Caspar W. Weinberger appointed a commission to study the problem of protecting classified defense information against espionage. The commission recommended expanded use of the polygraph as a counterespionage tool. "Defense Officials Urge Efforts to Counter Espionage", Aviation Week and Space Technology, Dec. 2, 1985, at 24.

[2]See Croddy et al. v. FBI et al., Civil Action No. 00-0651 (Mar. 15, 2000 D.D.C.)(EGS); John Doe #6 et al. v. FBI et al., Civil Action No. 00-2440 (Oct. 11, 2000 D.D.C.)(EGS). The defendants have filed Motions to Dismiss in both cases, and the parties are awaiting the scheduling of oral arguments or a decision from the Court. Copies of the pleadings in these cases can be found at the following websites: www.nopolygraph.com, www.stopolygraph.com and www.antipolygraph.org. Additional information regarding polygraph policies can be found at www.jamesmadisonproject.org and www.fas.org/sgp/othergov/polygraph/index.html.

[3]It is beyond the scope of this hearing to truly and properly address this very important question, but some examples include having counterespionage experts train security investigators, requiring all employees to file detailed annual financial disclosures and the creation of databases that examine employees' personal foreign travel, foreign contacts and outside activities. Obviously, the necessary balance to ensure some adequate level of personal privacy must be taken into consideration, as well as precautions to prevent abuse and allow for challenges.

[4]"New Facts about Shaving Revealed by Lie Detector!" "Are polygraph tests lying to us?", Baltimore Sun, November 3, 2000.

[5]Lykken, David T. A Tremor in the Blood: Uses and Abuses of the Lie Detector 213 (1998).

[6]See Use of Polygraphs as "lie detectors" by federal agencies: Hearings Before a Subcommittee of the Committee on Government Operations, 88th Cong. (1964).

[7]Abram S. The Complete Polygraph Handbook (1989).

[8]Lykken, supra note 6 at 161.

[9]A copy of the report can be found at http://www.nopolygraph.com/otastudy.htm.

[10]See Employee Polygraph Protection Act: Hearing on S.185 Before the Senate Committee on Labor and Human Resources, 100th Cong., 1st Sess. (1988).

[11]See http://antipolygraph.org/hearings/senat.../richardson-statement.shtm.

[12]Wash Post Nat. Weekly, Aug. 2, 1999. The extent to which the CIA and FBI submitted a report is unknown. Additionally, The National Academy of Sciences, at the request of the Department of Energy, recently begun a 15 month review of current polygraph policies. See e.g., http://www4.nas.edu/webcr.nsf/MeetingDisplay2/BCSS-I-00-01-A? OpenDocument.

[13]Charles R. Honts, "Counterintelligence Scope Polygraph (CSP) Test Found to be Poor Discriminator", Forensic Reports, 5:215-218 (1992); -----, "The Emperor's New Clothes: Application of Polygraph Tests in the American Workplace", Forensic Reports, 4:91-116 (1991); Barland, G.H. et al, "Studies of the Accuracy of Security Screening Polygraph Examinations", Department of Defense Polygraph Institute, Fort McClellan, Alabama (1989).

[14]As Spinoza, one of the greatest Western thinkers and philosophers, wrote more than 300 years ago in his famous treatise "Ethica ordine geometrico demonstrata" (otherwise known as "Ethics")(1677): "He who would distinguish the false from the true, Must have an adequate idea of what is false and true."

[15]For example, the FBI has asserted in correspondence that the "polygraph is an effective investigative tool which can save many investigative man-hours, decrease the overall cost of investigations, and provide valuable investigative leads or information which could not otherwise be developed due to lack of evidence or other noteworthy information." Copies on file with the author.

[16]For example, according to an October 28, 1997, letter sent by Donald Kerr, the Assistant Director of the FBI's Laboratory Division, to Senator Charles E. Grassley, between March 1994, and October 1997, "the FBI conducted approximately 16, 200 preemployment polygraph examinations. Of those, 12,930 applicants (80 percent) passed and continued processing; 3,270 applicants (20 percent) were determined to be withholding pertinent information. When these individuals were interviewed about their unacceptable performance in the polygraph session, 1,170 (36 percent) admitted to withholding substantive information." See http://www.nopolygraph.com/kerr.pdf. While the FBI's definition of "substantive" is unknown, based on the above FBI figures up to 64 percent of those individuals (2,100) who were deemed deceptive by the polygraph examiner may have been or were innocent of any wrongdoing. Yet, their FBI files, which are available to other governmental agencies, now reflect that they lied about a stigmatizing topic.

[17]See 5 U.S.C. sec. 552a(b)(3).

[18]On February 3, 1997, James K. Murphy, the Chief of the FBI's Laboratory's Polygraph Unit in Washington, D.C. and a FBI polygraph examiner since 1978, submitted a declaration to the United States Military Court, Mid-Atlantic Region, Norfolk, Virginia, in the case of United States v. Ens. Patrick J. Jacobson, USN. He stated that "[i]t is the policy of The Department of Justice to oppose all attempts by defense counsel to admit polygraph results as evidence and to refrain from seeking the admission of favorable examinations which may have been conducted during the investigatory stage of a case...The FBI uses the polygraph as an investigative tool and cautions that the results should not be relied upon to the exclusion of other evidence or knowledge obtained during the course of an investigation...This policy is based upon the fact that, a) the polygraph technique has not reached a level of acceptability within the relevant scientific community, b) scientific research has not been able to establish the true validity of polygraph testing in criminal applications, c) there is a lack of standardization within the polygraph community for training and for conducting polygraph examinations." See http://www.nopolygraph.com/murphy.pdf. The following year, the Department of Justice told the U.S. Supreme Court that polygraph evidence should be inadmissible because of its inaccuracy. United States v. Scheffer, 523 U.S. 303 (1998). Thus, a serious inconsistency exists between the government's use of polygraphs in criminal cases and its extensive use of polygraphs to make vital security and preemployment determinations.

[19]Which is governed by internal agency regulations and Executive Order 12,968, 60 Fed.Reg. 40245 (August 7, 1995)(establishing appellate framework to challenge denial of security clearances).

[20]"Spy-Wary FBI Agrees to Polygraphs", Los Angeles Times, Mar. 2, 2001.

[21]"Spy Detection, Inc.; A Test Of Honesty? Check That", Washington Post, May 23, 1999, at B1.

[22]"FBI chief Freeh to explain polygraph dearth in wake of spy charges", Knight Ridder Newspapers, April 28, 2001.

[23]"Michael Kortan, an FBI spokesman, said FBI leaders worry that more polygraphs would generate more lawsuits and scores of agents would be placed in investigative limbo after 'false positive' readings - failing the polygraph out of nervousness when the person is telling the truth." Id.

[24]When the FBI implemented its polygraph program in 1994, that years' special agent class had already begun its training. It has been alleged that approximately half the class failed resulting in the FBI waiving the polygraph requirement until the next class.

[25]Copy on file with the author.

[26]Id.

[27]Problems with the FBI's polygraph examinations extends beyond new applicants. Many former FBI Special Agents, including those who had distinguished careers, have failed polygraph examinations when trying to either re-enter the FBI or attain a consulting arrangement. In solely considering the results of the polygraph machine to arrive at its suitability determination, the FBI literally accuses its former agents of having committed crimes while on duty with the FBI; acts that if true have still gone unpunished.

[28]However, the FBI official policy, as set forth in various correspondence, is that "[a]ny applicant who does not successfully pass an initial polygraph examination may request to be afforded a second polygraph examination; however, certain criteria must be met." Copy of correspondence on file with author. While the criteria is not publicly known, the FBI policy on this issue is contained in a Buairtel dated May 1, 1995, captioned "Special Agent Selection System (SASS) Polygraph Policy". Although applicants to the FBI have been notified by letter that the "FBI's policy regarding additional polygraph examinations is consistent for all applicants", there is absolutely no rhyme or reason to the manner in which the FBI grants retests. It is essentially an arbitrary process.

[29]Another recent example of the influence of polygrapher bias involves David Tenenbaum, an engineer for the Army Tank and Automotive Command in Michigan. Tenenbaum, a devout Jew, became a suspect in 1996 of spying for Israel. Based on an alleged confession made during a polygraph examination, the FBI searched Tenenbaum's home but discovered nothing. It was later determined that the "confession" was "nothing more than the polygraph examiner's opinion. The polygrapher ... had concluded that 'because of devout religious beliefs and his strong affinity towards Israel, he would have provided restricted information to the Israelis based on his belief that the U.S. government should freely share information with one of its closest allies." "Government facing charges of racism", San Jose Mercury News, Oct. 13, 2000. Although no charges have ever been filed against Tenenbaum, his security clearance access was suspended.

[30]Scientists employed at nuclear laboratories in the United States face similar problems in light of the Department of Energy's desire to expand polygraph testing in the wake of the Wen Ho Lee case. While failure of the test alone allegedly will not result in termination of the employee's position, the individual will be transferred to work on less sensitive projects - a transfer that effectively destroys the careers of most scientists.

[31]The American Polygraph Association condemns the use of personal and intrusive questions. It does not condone any type of inquiry into sexual preferences or activities. See http://www.polygraph.org/apa5.htm.

[32]"Polarized Over Polygraphs", National Journal, Sept. 9, 2000, at 2801.

[33]Barland, G.H. et al, "Studies of the Accuracy of Security Screening Polygraph Examinations" (Department of Defense Polygraph Institute, Fort McClellan, Alabama, 1989) at iii. The 1983 report issued by the Office of Technology Assessment noted false-negative results approaching 30%.

[34]See e.g. David Wise, Nightmover 146-47,210-211 (1995); Tim Weiner et al., Betrayal 89-91 (1995).

[35]For example, for $47.45 you can order "How to Sting the Polygraph" written by Douglas William, a former police polygrapher, which instructs you on ways to beat the polygraph. See http://www.polygraph.com/.

[36]The Privacy Act does not permit challenging agency actions or "opinions", and the government is taking the position that polygraph results are nothing more than the "opinion" of the polygrapher. The Office of Special Counsel does not have jurisdiction to hear claims against many of the agencies that utilize polygraph examinations, such as the FBI, CIA or NSA, and it has yet to accept for investigation even one polygraph complaint.

[37]Time, unfortunately, did not permit a full legal analysis into issues surrounding use of the polygraph throughout the United States. Upon request, I would be more than willing to provide the Committee a detailed legal analysis of legal challenges asserted in the state and federal court systems, as well as an analysis of federal regulations governing polygraph examinations.

[38]In 1915, Marston devised a primitive lie detector based on blood pressure. He was one of the first to realize the lie detector's commercial possibilities. In 1938, Look magazine described how Marston sometimes used his lie detection techniques in marital counseling. He also showed up in full-page ads testifying to the close shave offered by Gillette razors: "New Facts about Shaving Revealed by Lie Detector!" "Are polygraph tests lying to us?", Baltimore Sun, November 3, 2000.




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