CHAPTER 4. PERSONNEL SECURITY - THE FIRST AND BEST DEFENSE So far as concerns the DoD and the Intelligence Community, the main purpose of personnel security programs is to protect the national security interests of the United States by insuring the reliability and trustworthiness of those to whom information vital to those interests is entrusted. Because the government is so completely dependent on cleared personnel to safeguard classified information, the personnel security system is at the very heart of the government's security mission. Without adequate personnel screening, the rest of the security mission would be a worthless facade and a waste of resources. Recent history is regrettably all too rich in proof of the damage that a single cleared person can cause. The Commission believes that the personnel security program will remain the centerpiece of the Federal security system in the post Cold War era, particularly as we move to a new classification system in which more information is moved out of compartments and made available to greater numbers of people. For this reason, the Commission is recommending enhancements to the personnel security program. These enhancements will result in increased costs, but the Commission believes these costs will be offset by other improvements we suggest. The process of granting clearances will always be controversial. It makes determinations about security risk by examining personal background information to form a judgment that can have serious consequences for the individual and for the government. There is no perfectly reliable or unarguably correct way to predict whether an individual will become a security problem in the future. In the end, all clearance decisions are judgments, hopefully well informed and carefully made, but nevertheless fallible. From time to time the process will fall short, either to the detriment of an individual when a clearance is denied, or to the detriment of the government when a serious security problem develops. The Commission finds that the clearance process is needlessly complex, cumbersome, and costly. Security clearances are sought for too many persons who have no real need for a clearance. There are too many different forms in use. There is insufficient automation and little interconnectivity between agencies. Investigation and adjudication are practiced inconsistently among agencies, resulting in reciprocity problems, delays, and increased cost to both government and industry. All too frequently clearances granted by one agency are not accepted by another, or even by another program manager within the same agency. The Commission believes that these shortcomings in the Federal personnel security system can be remedied. Our goal is to establish a security clearance standard the application of which will be tracked in a communitywide data base and will be fully transferable and valid among all government agencies. THE PROCESS BEGINS
PERSONNEL SECURITY - THE FIRST AND BEST DEFENSE
So far as concerns the DoD and the Intelligence Community, the main purpose of personnel security programs is to protect the national security interests of the United States by insuring the reliability and trustworthiness of those to whom information vital to those interests is entrusted. Because the government is so completely dependent on cleared personnel to safeguard classified information, the personnel security system is at the very heart of the government's security mission. Without adequate personnel screening, the rest of the security mission would be a worthless facade and a waste of resources. Recent history is regrettably all too rich in proof of the damage that a single cleared person can cause.
The Commission believes that the personnel security program will remain the centerpiece of the Federal security system in the post Cold War era, particularly as we move to a new classification system in which more information is moved out of compartments and made available to greater numbers of people. For this reason, the Commission is recommending enhancements to the personnel security program. These enhancements will result in increased costs, but the Commission believes these costs will be offset by other improvements we suggest.
The process of granting clearances will always be controversial. It makes determinations about security risk by examining personal background information to form a judgment that can have serious consequences for the individual and for the government. There is no perfectly reliable or unarguably correct way to predict whether an individual will become a security problem in the future. In the end, all clearance decisions are judgments, hopefully well informed and carefully made, but nevertheless fallible. From time to time the process will fall short, either to the detriment of an individual when a clearance is denied, or to the detriment of the government when a serious security problem develops.
The Commission finds that the clearance process is needlessly complex, cumbersome, and costly. Security clearances are sought for too many persons who have no real need for a clearance. There are too many different forms in use. There is insufficient automation and little interconnectivity between agencies. Investigation and adjudication are practiced inconsistently among agencies, resulting in reciprocity problems, delays, and increased cost to both government and industry. All too frequently clearances granted by one agency are not accepted by another, or even by another program manager within the same agency.
The Commission believes that these shortcomings in the Federal personnel security system can be remedied. Our goal is to establish a security clearance standard the application of which will be tracked in a communitywide data base and will be fully transferable and valid among all government agencies.
THE PROCESS BEGINS
Requesting a Clearance
Except where a clearance is required for initial employment, the clearance process begins when management determines that a worker requires access to classified information or requires the authority to change information or systems in ways which may affect the integrity or availability of information. Management submits a clearance request form, an investigation is conducted, and the results are forwarded to an independent adjudicative center, which determines whether the individual is suitable for a security clearance. Clearance decisions are subject to appeal and review through formalized administrative procedures. The government conducts similar investigations on all Federal civilian employees in the executive branch and on military members to determine whether they are suitable for Federal employment or service. These position suitability determinations differ from clearance decisions in that they are not made according to standardized criteria. Rather, the hiring component, not an independent adjudicative center, makes the determination, and fewer procedures are in place to appeal adverse decisions.
The Commission learned that thousands of costly security clearances are requested annually for persons who do not require actual access to classified information or technology or the authority to modify sensitive information or systems, and who do not otherwise occupy sensitive positions. For example, guards, shipyard workers, various trades craft, and maintenance, custodial, concession, and cafeteria workers are routinely submitted for clearance even though they only require access to a controlled area (facility access) and thus may receive only superficial or inadvertent exposure to classified information. Unfortunately, many of these personnel have complex backgrounds which, when applied against security clearance criteria, require extensive investigation and administrative due process, thereby overburdening an already overtaxed system. This only serves to delay significantly the processing of legitimate requests and increases costs.
The Commission recommends that clearances be requested only for personnel who require actual access to classified information or technology. For most of those who merely require facility access, a position suitability determination based on the results of a National Agency Check with Inquiries (NACI) should be the maximum allowed.
The Commission found that many managers consider the clearance process slow and inefficient. Because there is no cost incurred for submitting clearance requests, military commanders and program directors often submit an excessive number of clearance requests to ensure that they receive an adequate number of cleared personnel to meet their needs. Investigative and adjudicative organizations, many of which face steadily declining budgets, must accept all requests, resulting in runaway costs and delays throughout the system. A solution is needed that will impose discipline at the requester level, while insuring that the system accommodates essential clearance requests quickly and efficiently.
A fee-for-service funding mechanism, such as industrial funding or a revolving fund, can impose a sense of cost on agencies that request clearances. Rather than use appropriated funds, industrially funded agencies charge customers for services provided and finance operations from this income. Fee-for-service operations tend to be more efficient and appropriately scaled to size because customers must consider the cost of the service when making requests. For example, the Office of Personnel Management (OPM), which operates on a revolving fund, found that investigative requests steadily decreased after it instituted industrial funding. Similar decreases in clearance requests would likely occur with the adoption of an industrial funding mechanism throughout the DoD and the Intelligence Community (to include industry). Fee schedules could be developed that would allow agencies and organizations requesting clearances to trade off the advantages of expedited processing against higher costs. The Commission recognizes that converting to a new funding strategy cannot be accomplished overnight. However, we believe that it is time to begin purposefully moving towards this new strategy.
The Commission recommends that fee-for-service mechanisms be instituted to fund clearance requests within the DoD and the Intelligence Community.
Prescreening and Fairness
Prescreening is the process of assessing the likelihood that individuals will be cleared before they are formally submitted for a clearance. It generally involves the completion of a personal history statement or security questionnaire and/or interviews with the subject or supervisors. Prescreening saves a considerable amount of time and money by insuring that only those individuals with a reasonable chance of obtaining a clearance are submitted for processing. All agencies in the DoD and the Intelligence Community prescreen applicants to some degree. For example, in the DoD, prescreening is conducted at military enlistment centers and on all persons considered for SCI access. The effectiveness of this program is evident in the very low clearance denial rates for these individuals.
The Commission learned that substantial problems may develop if government organizations ask private firms to prescreen their own employees for a security clearance. Such firms are concerned about legal liability if they conduct prescreening as agents of the government. Contractors may interpret the relevant security standards differently and are not able to waive the standards as do government organizations. Consequently, qualified individuals may needlessly be denied an assignment or even employment. Further, if the contractor performs the prescreening of its own employees instead of the government, those eliminated have no appeal rights.
Furthermore, suggestions have been made that some firms use the clearance process to weed out employees that they consider unsuitable. For example, government investigators conducting background checks sometimes find that the subject's managers and supervisors will not recommend the subject for clearance. In other cases, investigators discover that the individual whose name was submitted for clearance is not scheduled to work on a classified contract. In these instances the clearance denial can afford the contractor a convenient explanation for terminating the individual's employment. The Commission believes that it is the obligation of the contractor to nominate individuals who enjoy the full support of management within the firm.
The Commission recommends that formal prescreening of contractor personnel be solely performed by the government or an independent company hired by the government specifically for that purpose, not by the company that employs the personnel.
While most prescreening programs appear effective in weeding out problem cases, some special access programs have prescreened individuals without their knowledge or consent. While this practice is not widespread, it may result in adverse employment consequences and deprive the person of knowing the rationale for the employment consequences or having the right to appeal. The Commission believes that unconsented prescreening should not be conducted unless warranted by extraordinary circumstances, such as cover or counterintelligence operations.
The Commission recommends that within the DoD and the Intelligence Community, individuals (including employees of contractors) considered for a contractual or employment related security clearance or access may be formally prescreened only with their full knowledge and consent, unless conducted pursuant to procedures approved by the security executive committee.
Forms and Automation-Ending the Paper Trail
The Commission found that there are literally hundreds of different forms designed to establish clearance and access eligibility. For example, there are over 45 different prescreening forms in use throughout the government and industry, all of which request essentially the same information. Individuals must often complete several such forms to obtain access to different programs, resulting in delays and ultimately in increased costs.
A number of forms and personnel security questionnaires are used to apply for security clearances. None are accepted laterally. Currently, the Office of Management and Budget (OMB) supports the establishment of a single form for all positions in government that require a clearance or are otherwise designated as sensitive. The NISP has developed such a standard form to replace all other personnel security questionnaires, but it has not yet been adopted. Until a standard government form is adopted, the Secretary of Defense and the Director of Central Intelligence should require that all investigative agencies within the DoD and the Intelligence Community reciprocally accept the government approved personnel security questionnaires of other agencies.
The Commission recommends that:
a) The personnel security questionnaire devised by the NISP be adopted for use throughout the Department of Defense and the Intelligence Community.
b) A standard prescreening form be developed for use throughout the Department of Defense and the Intelligence Community.
The Commission supports the development of standardized forms in an electronic format as a way to facilitate reciprocity and reduce costs. Currently, most clearance request forms and questionnaires are paper-based. Accordingly, handling times add weeks to the process of conducting background investigations. Moreover, as many as 30 percent of these questionnaires are rejected due to missing or incomplete data, adding as much as three months to the clearance process and thereby driving up costs. Significant savings will be realized when personnel security questionnaires are developed in an interactive, electronic format that guides the completion of each response and ensures that only fully completed forms are submitted. The Commission believes that automation is crucial to improving efficiency and responsiveness throughout the clearance process. Examples of ongoing and needed initiatives include:
o The CIA and the OPM have issued laptop computers to field investigators so that field reports can be submitted electronically rather than dictated and typed at separate locations.
o Some agencies are exploring the use of computer administered security interviews as a way to gather information from subjects in a more cost effective manner. Computer administered interviews cost as little as $20 to $30 per interview, versus up to $200 for a subject interview.
o Military members frequently arrive at assignments without the required security clearance, driving up costs as they await clearances to perform duties. One adjudicative organization has proposed that linkages be developed among investigative indices, adjudicative data bases, and personnel data bases, forming an electronic data interchange that would ensure almost all military members arrive at their next assignment with clearance in hand.
The Commission recommends that the Secretary of Defense and the Director of Central Intelligence invest in automation to increase timeliness, reduce cost, and improve the efficiency of the entire personnel security program.
In 1993, the DoD accounted for the majority of cleared personnel in the Federal Government: about 60 percent of the over 800,000 individuals cleared to the Top Secret and SCI levels; 97 percent of the 2.24 million individuals cleared to the Secret level; and 99 percent of the 151,000 cleared to the Confidential level. With such a large number of cleared personnel, any attempt to increase investigative requirements for the DoD will result in substantial cost increases.
Currently, Federal agencies conduct more than 15 types of investigations. However, the majority fall into the following three categories:
o The National Agency Check (NAC) or Entrance National Agency Check (ENTNAC), which involves records checks of national law enforcement and government agencies.
o The National Agency Check with Inquiries (NACI), which includes the records checks described above plus written inquiries to local law enforcement agencies, former employers and supervisors, listed references, and schools attended in the previous five years.
o The Single Scope Background Investigation (SSBI), which is a full field investigation with a scope of 10 years that includes the checks described above plus credit checks, subject, reference, and neighborhood interviews, as well as verification of birth, citizenship, education and employment.
Investigative Requirements-Streamlining the Process
In 1991, National Security Directive 63 established the SSBI as the single investigative requirement for access to Top Secret and Sensitive Compartment Information throughout the Federal Government. A 10-year scope was adopted as a compromise between the 15-year scope of the special background investigation and the five-year scope of the background investigation. While not required by DCID 1/14, certain agencies and programs augment SSBIs with some form of screening polygraph.
NSD 63 ordered that SSBIs would not be duplicated and would transfer between agencies. However, some agencies, citing variability in investigative quality, take advantage of a loophole in NSD 63 to "upscope" investigations conducted by other organizations. The variability in the quality of investigations stems from differences in use of telephone interviews (considered a substandard practice by many), number of sources contacted and number and diversity of developed leads pursued. Some agencies report results in full, detailed narratives while others use summaries. These inconsistencies serve as an obstacle to reciprocity and add to processing delays.
The Commission believes that the SSBI is a reasonable investigative requirement for access to specially protected information under the new classification system. However, it can be made more efficient by refining the scope and eliminating unproductive leads that are expensive and costly to develop. A 1991 study by the DCI's Personnel Security Working Group (PSWG) determined that 90 percent of adjudicative issues are developed within a seven year scope. Moreover, the Commission learned from the investigative community that requiring investigators to interview neighborhood sources at every residence and to conduct education and birth record checks in person is costly, time consuming and rarely elicits significant adjudicative information. They suggest that refining the SSBI to address these concerns will drive down costs without affecting the quality of the investigation. For example, subjects could be required to provide verification of birth and education rather than using investigative time to pursue these leads.
Currently, there is no common investigative requirement for Secret or Confidential access in the Federal Government. Military enlisted personnel and officers, upon entry into the military, receive some variant of a NAC that serves as the basis for granting Secret and Confidential clearances. This is the lowest investigative requirement in government. Federal civilian employees are granted Secret and Confidential access on the basis of a NACI or a limited background investigation.
As the Commission proposes to downgrade a significant amount of information from higher to lower levels of protection, we are concerned by Intelligence Community representatives who have stated that they will oppose downgrading information if the only investigative requirement for generally protected access is a NAC. They do not believe that the NAC provides an adequate assessment of trustworthiness or reliability. The Commission concurs and believes that the only way to move more information out of compartments, thereby increasing its availability to customers, is to increase the investigative requirement for access to classified information that is generally protected. (Footnote 11)
The Commission found substantial support in the Defense and Intelligence Communities for increasing the Secret clearance requirement to a NACI plus credit check. The Stilwell Commission and the NISP made similar recommendations. While this initiative will increase the cost of each investigation by 50 percent (from $48 to $72)12, offsets will be realized through an overall reduction in the number of individuals who undergo full field investigations and reinvestigations and operational economies derived through greater availability of needed classified information to the customer community.
The Commission recommends:
a) The investigative standard for a Secret Compartmented Access clearance be an SSBI with a scope of seven years. Moreover, investigators should not be required to conduct education and birth record checks in person or neighborhood checks other than the most recent residence of six months or more.
b) The investigative standard for a Secret clearance be a NACI plus credit check, with expansion as appropriate to follow up only on issues likely to result in adverse adjudication.
Continuing Evaluation-Reinvestigations and Safety Nets
The personnel security program continually assesses the integrity and trustworthiness of the cleared work force through periodic reinvestigations. US espionage cases over the last 20 years have shown that most damage to national security is caused by already cleared personnel, those insiders who volunteer to sell or give classified information to foreign governments. Very few applicants intend to commit espionage at the time they seek employment. Currently, individuals cleared to the Top Secret or SCI levels are reinvestigated every five years, and some agencies or programs may require a screening polygraph. Those cleared to the Secret or Confidential levels are reinvestigated every 10 years, although the DoD, with over 2 million cleared personnel, is only current to 15 years.
The Commission believes that current reinvestigation policies should be refined to increase efficiency. For example, an aperiodic reinvestigation interval would offer a greater deterrent effect and provide agencies with more flexibility to focus resources on priority investigations. Adjudicative facilities also have indicated that, based on revocation experience, a seven year reinvestigation interval for a Secret Compartmented Access clearance and a 10-year interval for a Secret clearance are the most efficient.
The Commission recommends that:
a) The reinvestigation standard for a Secret Compartmented Access clearance be an SSBI. Reinvestigations will be conducted on an aperiodic basis, but not less than once every seven years.
b) The reinvestigation standard for a Secret clearance be a NAC, local agency check and a credit check. Reinvestigations will be conducted on an aperiodic basis, but not less than once every 10 years.
While reinvestigation provides an important way to monitor the integrity of the work force, safety nets are also needed to ensure that personnel do not become counterintelligence risks after they obtain a clearance. Studies have shown that many American spies in the 1980s turned to espionage as a way to resolve personal problems or crises. Some were disgruntled workers who wanted to strike out at the system for perceived injustices, some were faced with pressing financial problems, others were struggling with conflict-ridden family situations and still others had alcohol or drug abuse difficulties. Many saw espionage as the only way to resolve their problems. They volunteered to sell or give classified information to foreign governments after convincing themselves that they could spy safely and not be detected.
While only a very small percentage of employees with personal problems become involved in espionage or other serious security transgression, the damage that can be caused by even one person with sensitive access serves to illustrate the value of programs that help employees resolve personal problems. A few convicted spies have stated that at the time they began spying they were emotionally distraught and in need of counseling. Employee assistance programs provide short-term counseling and referral services for a variety of problems, including financial, family, vocational, emotional, and substance abuse. Recognizing the value of these programs in increasing worker productivity, many private corporations and some government agencies have established Employee Assistance Programs or contract out for these services. National security organizations have an even greater stake in insuring that such services are available to their employees.
The Commission commends those agencies that have established Employee Assistance Programs and recommends that all agencies in the Defense and Intelligence Communities ensure that similar programs or contractual services are available to employees, particularly those with access to specially protected information.
Clearance Processing-Time Is Money
Delays in the investigative and adjudicative process contribute directly to customer and government costs. As far back as 1981, the General Accounting Office (GAO) reported to Congress that nearly a billion dollars was wasted annually because of investigative backlogs at the Defense Investigative Service. The GAO recommended solving this "$980 million problem" by increasing appropriations for the DIS by $12.5 million.
The Commission found that there is no performance standard for timeliness in completing investigations and adjudications. The Commission repeatedly heard from the customer community that 90 days is an appropriate standard for completion of the average investigation and adjudication (65 days for the investigation). However, the DIS, which has contended with declining resources, completes SSBIs in an average of 149 days (including about 40 days for conducting overseas leads) and does not charge a fee. The OPM completes SSBIs in 35, 75 or 120 days, and charges a variable fee. A major SAP uses a private firm that completes investigations in an average of 34 days but, if directed, terminates some cases when significant adverse information is developed. While private firms cannot handle a substantial volume at this time, contracting out investigations in special circumstances, such as priority cases, may enhance competitiveness and further lower cost by preventing the development of backlogs and delays.
The Commission found that several adjudicative organizations were quite timely in their processing. Others, however, required as much or more time to complete the adjudication than was expended on the investigation. Processing and appellate review of individuals facing a possible loss or denial of a clearance also range in processing time from 120 days at one organization to two years for organizations that offer an evidentiary hearing. The Commission believes these areas are particularly amenable to cost savings through process improvement.
The cost directly attributable to delays in the investigative process in FY 1994 could be as high as several billion dollars (assuming that the DoD incurs an average cost of $250 per day beyond the 90-day standard for each worker who is unable to perform his/her duties while awaiting a security clearance). In addition, the DIS is scheduled to take further cuts through FY 1999 that will substantially increase average investigation completion times, resulting in additional billions of dollars in lost productivity as workers are assigned other suboptimal duties while awaiting clearances.
Delays in the clearance process also contribute to increased costs for industry. In today's difficult contracting environment, many firms that do not hold classified contracts on a continuing basis are handicapped in pursuing new contracts because clearance eligibility lapses on key personnel. A six- to nine-month delay can result while contractors await clearance revalidation. Should the contract involve state-of-the-art battlefield technology, this loss in time could equate to a loss of life for our forces. Waiting time for personnel involved plus delay in contract deliveries amounts to a significant cost to the American taxpayer.
A private firm with government contracts reported that it has 57 employees in the Washington, DC area who have been waiting six to nine months for clearances at a cost to the company, and ultimately the government, of approximately $2.6 million.
The Commission recommends that:
a) All investigative, adjudicative, and appellate organizations begin an orchestrated process improvement program with the goal of continuing to ensure fairness and quality while vastly improving timeliness.
b) Standard measurable objectives be established to assess the timeliness and quality of investigations, adjudications, and administrative process and appeals performed by all such organizations within the DoD and the Intelligence Community.
c) As long as an individual has been investigated within the last 10 years, interim clearance at the previously maintained level may be granted based upon a favorable review of a personnel security questionnaire.
d) Standard interim access procedures be established throughout the community for those not previously cleared to the generally protected and specially protected levels.
Adjudicative Standards and Criteria
Adjudication is the process of determining whether an individual meets established criteria for access to classified information. Once a background investigation has been completed, the entire investigative packet, including records of any prior investigations, are forwarded to an adjudicative center. An adjudicator determines whether problem behaviors are present, and, if so, whether the behavior is severe enough to warrant a denial or revocation of a security clearance. Factors that enter into the decision include the seriousness, recency, frequency, and motivation of the behavior as well as any mitigating factors.
The Commission reviewed the adjudicative criteria used in the DoD and the Intelligence Community, visited adjudicative and appellate operations, met with senior officials regarding their adjudicative philosophy and sought the basis for a number of adverse adjudications occurring in the past 5 years that have resulted in public controversy. The Commission notes that virtually all of the adverse adjudications that have resulted in recent public or congressional outcry appear to have occurred in either special access or special intelligence programs at a time when very limited procedural safeguards were made available to personnel working within such programs. In October 1993 the last of these programs instituted procedural safeguards for those who face denial or revocation of their special access. Those safeguards, discussed below (see pp. 55-65), should provide much better protection, but the Commission remains concerned about the lack of reciprocity of adjudications. Efforts are underway to establish standard adjudicative criteria for the entire community and these must be brought to fruition.
The Commission also believes that the security executive committee should, as a first priority, develop a single governmentwide standard for granting security clearances for both Secret and Secret Compartmented Access. This common standard should eliminate the lack of reciprocity among government agencies and between the government and contractors.
The process of developing common standards should also address concerns that have been expressed by civil liberties groups and others as to whether the criteria strike the right balance between the government's need for security and the rights of the individual. The Commission is pleased to observe that such issues as sexual orientation no longer are per se bars to clearance or access. In this regard, the Commission notes that the Attorney General recently issued a statement on nondiscrimination in employment within the Department of Justice and the FBI issued investigative guidelines and security clearance adjudication guidelines. The Commission has not had an opportunity to consider these guidelines in depth, but believes that the principles expressed in these guidelines could be the basis for governmentwide standards.
There are two sets of adjudicative criteria in the DoD and the Intelligence Community. A Director of Central Intelligence Directive (DCID) contains the adjudicative criteria for SCI determinations. While SAPs do not usually require access to SCI, they may require that personnel meet at least the DCID criteria. A DoD regulation contains the adjudicative criteria for Confidential, Secret, and, Top Secret for the military.
The NISP has developed a set of adjudicative standards that merges Top Secret and SCI requirements. These standards could be used in granting Secret-Compartmented Access clearances. Parallel standards should be established for Secret clearances.
Implementation of standards for adjudicating background investigations can eliminate multiple readjudications. For example, the Commission found that the Defense Industrial Security Program sometimes grants clearances on the basis of precedent or case law amassed through years of appeal hearings. In some cases, adjudicative decisions appear to deviate substantially from adjudicative norms followed by other organizations in the DoD. As a result of a few decisions, various special access programs and Federal agencies have developed a wholesale distrust of the industrial clearance process, leading them to readjudicate industrial security clearances. The establishment and enforcement of a single adjudicative standard would eliminate the need for costly readjudications.
Savings would also be realized within departments and agencies that have suitability requirements not related to security which they apply in processing candidates for employment. Such assessments could be accomplished in less time and at less cost if the requirement to also readjudicate security-relevant information is eliminated.
The Commission recommends that the Secretary of Defense and the Director of Central Intelligence develop and adopt a common set of adjudicative criteria for access to generally protected and specially protected information.
DoD Adjudicative Facilities
The DoD currently has 18 separate adjudicative organizations but is in the process of consolidating them into eight facilities. Staffing of the various adjudicative centers varies widely (one center will have a staff of one) and most are neither timely in their actions nor responsive to their customers. Virtually all face significant budget reductions despite the fact that several are already substantially understaffed and underequipped. Few adjudicative organizations have strategic plans for integrating their information with the customer base or employing automation to manage the process.
The DoD community would benefit substantially from consolidating its adjudicative operations. By building on the most successful adjudicative processes and automation models, consolidation would improve the efficiency, effectiveness, and consistency of the adjudicative system. Research by PERSEREC has clearly demonstrated that larger adjudicative facilities tend to be more efficient. The direct savings of having a single adjudicative facility in the DoD pale in comparison to the savings to be realized through increasing the timeliness and customer responsiveness of personnel security programs.
The Commission believes that the NSA should be excluded from the consolidation of adjudications in the DoD. At the NSA, the clearance process is inextricably linked to the hiring process much as it is for the CIA. The Commission believes that it could be counterproductive to integrate such employment-related adjudications into the central adjudication facility.
The Commission recommends that all DoD adjudicative entities, except the NSA, be merged into one organization reporting to the appropriate Under Secretary or Assistant Secretary of Defense.
The Commission examined the practice of numerous program managers, particularly those within SAPs, exercising their option to readjudicate already cleared individuals. This adjudication is ostensibly for "access" authorization and not for clearance, but the process is virtually the same and may be repeated over and over again depending on the number of programs involved.
Recently, 149 engineers at a major defense contractor were all cleared for SCI to work on an existing contract. After the contract was completed, these same engineers were badly needed for another SCI contract in the same facility and complex. However, it took months for the engineers to be re-adjudicated and approved for the second SCI program.
The Commission is not convinced that such readjudications provide additional security benefits and is concerned about the significant costs resulting from the delays that such readjudications impose upon the system. The Commission believes that if SAP and other special program managers truly have personnel security requirements that are not being addressed in the clearance process, they should take action to insure their requirements become incorporated into current and future adjudicative standards. Beyond that, validation of an existing clearance should be all that is required to give an individual access to information once it has been determined that the individual has a need to know the information.
The Commission recommends that:
a) Any individual who has an existing clearance not be readjudicated.
b) Program managers be limited to the following prerogatives when making access determinations:
1) Verifying that the individual has the requisite clearance.
2) Verifying that the individual has a need to know the classified information.
Virtually all agencies employ risk management to grant exceptions to the adjudicative standards for high risk/high gain individuals. This takes into account operational needs, unusual expertise, or other factors. However, few record these exceptions in shared information systems. Any conditional clearance or waiver of normal adjudicative criteria should be readily identifiable to other organizations that may subsequently employ the individual. This will be facilitated by implementation of central clearance verification as recommended below.
The Commission recommends that agencies identify conditional clearances or waivers through use of the standard codes in a new central data base.
In this section of its report, the Commission will deal with certain procedural protections and administrative remedies that may or may not be available when security clearances are denied or revoked.
In order to give its considerations some focus and manageable limits, the Commission has elected to deal only with those questions to which its particular attention was called by the Conference Report that accompanied the Defense Authorization Act For l994. Section 1183 of that Act directed the Secretary of Defense to "conduct a review of the procedural safeguards available to Department of Defense civilian employees who are facing denial or revocation of security clearances," and further directed that this review, the results of which are to be reported to the Congress by not later than March l, l994, should specifically consider the following:
(A) "Whether the procedural rights provided to Department of Defense civilian employees should be enhanced to include the procedural rights available to Department of Defense contractor employees."
(B) "Whether the procedural rights provided to Department of Defense civilian employees should be enhanced to include the procedural rights available to similarly situated employees in those government agencies that provide greater rights than the Department of Defense."
(C) "Whether there should be a difference between the rights provided to both Department of Defense civilian and contractor employees with respect to security clearances and the rights provided with respect to sensitive compartmented information and special access programs."
These questions were further elaborated by the Conference Report, as follows:
The conferees direct the Secretary to ensure that the review specifically address each of the following procedural safeguards in the context of the denial or revocation of security clearances with respect to civilian employees of the Department of Defense: (l) notice of the reasons for the proposed denial or revocation; (2) an opportunity to respond; (3) the right to a hearing or other appearance before a tribunal; (4) the right to be represented by counsel; (5) the availability of trial-type procedures, such as the opportunity to present and cross-examine witnesses; and (6) the opportunity to appeal any final decision. If the Secretary determines that DoD civilian employees should not be provided with procedural rights that are as protective as those afforded to DoD contractor employees with respect to any of the foregoing matters, the Secretary's rationale for each such difference should be set forth in the report.
The Conference Report then added this comment:
The conferees note that the subject of security clearances within the Department of Defense is undergoing detailed review by the Joint Security Commission established by the Secretary of Defense and the Director of Central Intelligence, which is scheduled to complete its work by February l, l994. The conferees agree that the Secretary should obtain the views of the Commission on the issues set forth in the conference agreement, but note that the final responsibility for addressing these issues and issuing an implementing regulations rests with the Secretary.
The Commission has adopted this comment as its framework. Because both the broader questions posed by the Act, and the more exact questions posed by the Conference Report, take as their baseline the procedural safeguards available to DoD contractor employees, some preliminary discussion is necessary in order to understand that baseline. It is also necessary to understand how the procedures and remedies that lie along that baseline compare with the safeguards that are available to civilian DoD employees, and with the different safeguards that apply when special access approvals are denied or revoked on security grounds other than need-to-know grounds.
DoD Contractor Personnel
Background investigations relating to DoD contractor personnel are conducted by the Defense Investigative Service. If an investigation develops information that must be adjudicated in order to determine if a security clearance should be denied or revoked, the case is referred to the Directorate for Industrial Security Clearance Review (DISCR), which conducts the adjudicative process, as it also does in cases involving contractor personnel doing classified work for some 20 other government agencies or organizations, not however including the CIA, or the NSA. The adjudicative process is authorized and directed by EO 10865 (l960), as amended by EO l0909 (l961), and an implementing regulation, DoD Directive 5220.6. The Director of DISCR reports to the Deputy General Counsel of the DoD.
Thousands of cases are referred to the DISCR each year. If in any case the DISCR is able to make the requisite finding of clear consistency with the national interest, based on the criteria set forth in Directive 5220.6, that finding resolves the case and the clearance is granted. Otherwise the DISCR prepares a Statement of Reasons which resembles a civil complaint and must state in detail (so far as national security considerations permit) the reasons why it may not be clearly consistent with the national interest to grant or continue a clearance. The Statement of Reasons must be provided to any person to whom it relates. Such persons also are informed that they are obliged to answer every allegation in the Statement of Reasons within 20 days, that they have a right to a hearing before an Administrative Judge, that the government will be represented by counsel at that hearing, and that they may also be represented by an attorney of their own choice and at their own expense. There is no provision for the assignment of defense counsel at public expense.
If the hearing right is exercised, there is some opportunity for discovery, essentially limited to proposed exhibits and non-privileged documents in the control of the DISCR. Testimony at the hearing is taken under an admonition by the Administrative Judge that the Federal false statement statute, which carries criminal penalties, is applicable to that testimony. Witnesses are subject to cross-examination, except that under some circumstances, again for reasons of national security, the right of cross-examination may be curtailed or denied. Although witnesses may be requested to appear or instructed by their agencies or employers to appear, and are paid per diem and travel expenses if they do so, neither government counsel nor the defense has the power to compel the attendance of witnesses by subpoena. The government has an initial burden to show that the allegations in the Statement of Reasons have some substantial support, but the ultimate burden-on the issue of clear consistency with the national interest-falls on the other side. Defense evidence may be submitted not only in rebuttal, but also in mitigation or extenuation. The Federal Rules of Evidence are used as a guide. The Administrative Judge renders a written decision, which may be appealed by the losing party to a three-member Appeal Board, which reviews the record and rules on alleged errors. The Administrative Judge and the members of the Appeal Board are attorneys and are part of the DISCR organization.
If no hearing is requested, the case is decided by an Administrative Judge on the written record, including the Statement of Reasons, documents that provide the basis for the allegations in the Statement of Reasons, any answer or objections to the Statement of Reasons, and any other material submitted in rebuttal, mitigation or extenuation. Decisions made on such a record are also reviewable by the Appeal Board.
DoD Civilian Personnel
The procedural safeguards and administrative remedies available to DoD civilian personnel, and to military personnel as well, are prescribed by another DoD regulation, namely 5200.2-R. This regulation provides that no final adverse action can be taken, in any matter involving a personnel security determination, unless the person concerned has been given: (l) a written statement of the reasons for the proposed action, as specific and detailed as Privacy Act and national security considerations permit; (2) an opportunity to respond in writing to that statement, to whatever authority the head of that person's component within the DoD may designate; (3) a written decision by an identified official, within 60 or at most 90 days thereafter, again stating reasons as specific as Privacy Act and national security considerations permit; and (4) an opportunity to appeal to a higher authority designated by the person's component within the DoD.
The opportunity to submit a written response, although the regulation is not explicit on the point, implicitly includes the chance to submit any materials in support of such a response, whether in order to rebut the factual allegations or to explain any mitigating or extenuating circumstances. Likewise, although the regulation does not explicitly refer to representation by counsel, as a practical matter any person desiring to retain counsel at his or her own expense could hardly be prevented from doing so.
The regulation also reserves to the Secretary of Defense the authority to bypass the prescribed procedures and to find that a person is ineligible for a clearance, if national security interests so require. That authority may not be delegated by the Secretary, and so far as the Commission knows, it has never been invoked. A similar proviso is contained in the directive applicable to contractor personnel, but again as far as the Commission knows, it too has never been invoked.
The regulation, in an appendix, sets forth the same adjudicative criteria as the directive applicable to DoD contractor personnel.
Differences and Comparative Advantages
It is not the role of the Commission to attempt to pass judgment on the legal sufficiency of any of these procedural safeguards or remedies. If any of them is legally defective, either on its face or as it might be applied in any particular case, an appropriate plaintiff will presumably come forward and any claims will then be duly determined by the courts, with the benefit of adversary briefs and on the basis of a properly developed factual record.
There are, however, policy issues raised by the differences between the sets of safeguards available to DoD contractor employees on the one hand and DoD civilian employees on the other. As the Commission sees it, the most fundamental differences are the following: contractor personnel have the assurance that they will have a chance to review all documents on which a decision is based, whereas civilian employees, although in practice they may be provided with such materials, appear to have no such assurance; contractor personnel, unlike civilian personnel, have a right to a trial-type hearing, at which the government has an initial burden of showing that its allegations have some substantial support, at which witnesses testify subject to cross-examination, and at which the Federal Rules of Evidence are used in at least a guideline sense; and more generally, the cases involving contractor personnel, assuming the hearing right is exercised, are handled in a more formal manner, akin to judicial proceedings, with the government's side represented by a qualified trial attorney and with the final decision in the hands of an Administrative Judge who is also an attorney, and a three-member Appeal Board also composed of attorneys.
It is the premise of the questions posed in the Conference Report to which we have already alluded, and it is also the position of the American Bar Association, which has been outspoken on the matter, that the procedural safeguards available to DoD contractor personnel are superior to the safeguards to which DoD civilian personnel are entitled. However, it is not at all self-evident that this is so.
To begin with, as nearly as the Commission can tell, the right of a contractor employee to demand a trial-type hearing before an Administrative Judge is made absolute by the applicable directive, whether or not there are any factual disputes that need to be resolved. Not even civil litigants operating under the Federal Rules of Civil Procedure have as broad a right. On the contrary, those rules effectively foreclose any opportunity for a trial in any case in which the material facts are undisputed, and the only genuine issues concern the significance of those facts. In addition, contractor employees are evidently free to demand a trial-type hearing not only in circumstances where they do not contest the government's allegations and do not have any rebuttal evidence, but also where they desire only to present some information that may be extenuating or mitigating. Even assuming that such a broad hearing right may be superior from an employee's standpoint, and may be available in other contexts involving for example the denial or revocation of professional licenses, that does not mean that such a right is required in the name of fundamental fairness, or that is should become the universal standard in connection with decisions that are as highly discretionary and judgmental as clearance decisions.
Second, while it is true that contractor employees have the right to be represented by counsel at their own expense, that right is empty for those who cannot afford that expense or obtain pro bono representation. Such persons are left with the prospect of facing an experienced trial attorney alone and without representation. Civilian employees may also go unrepresented, but they are not caught up in a system in which there is an experienced trial attorney on the government side. Further, even where contractor employees are able to avail themselves of the right to counsel, that may be only because their employers agree to bear the expense, which is not a possibility in cases involving civilian DoD employees. In our estimation, although we haven't seen any evidence on the point, there is a somewhat lower chance that an employee union might come forward to pick up the expense of such employees.
Third, in contractor employee cases, the employee's right of appeal from an adverse decision is confined by strict scope-of-review limits. The Appeal Board may not consider any evidence not considered by the Administrative Judge. Nor is the Appeal Board free to reverse a decision except on grounds that it was arbitrary, capricious, or contrary to law, or that the factual findings were unreasonable, or that procedural error was committed. These same constraints do not exist in civilian employee cases. The appeal authorities in those cases can take an entirely fresh look and make what they believe to be the appropriate decision, without regard for the lower-level decision, which is apt to be far less detailed than a decision of an Administrative Judge in the DISCR process. Further, while either losing party, which may be the government, can appeal the decision of an Administrative Judge, in civilian employee cases there does not appear to be any provision for appeals of decisions that are favorable to the employee.
Fourth, the system of adjudicating contractor employee cases has a rigidity that can work against the employee. No allowance is made in that system for the value that such employees may bring to the classified work being performed by their employers. No matter how high that value, it does not figure in the adjudicative criteria, and it is therefore ignored. The civilian employee system, however, is flexible enough to take account of that value. In that system, either at the lower level or the appeal stage, decisions can be influenced by arguments that the employee is a big contributor, that any security risk is manageable, and therefore that the risk should be taken. There is also a good chance that supervisors within an employee's component will actually come forward to champion such arguments or to make other arguments on the employee's behalf.
We do not say any of this to denigrate in any way the DISCR process. Rather we make these points only to show that the policy debate is not one-sided, and because it is very unclear to us whether, given a choice between the DISCR process and the existing arrangements, civilian DoD employees would opt for the former. It is even more unclear to us that military personnel, who have an understandable confidence in their own chain of command, would opt for the DISCR process.
We come now to the specific questions posed by the Conference Report, which were directed to the Secretary of Defense but as to which the views of the Commission were invited. These questions asked why, in each of six different respects, "DoD civilian employees should not be provided with procedural rights (in connection with the denial or revocation of a security clearance) that are as protective as those provided to DoD contractor employees."
1. Notice of the reasons for the proposed denial or revocation. In this respect, as the Commission understands, any difference between the rights afforded to the two classes of employees is a matter of degree. The Statement of Reasons that commences the DISCR process is apt to be a more detailed statement than the notice provided to civilian employees. Without attempting to draw any fine lines, the operative principle here should be that affected employees are entitled to a statement that adequately informs them of the factual basis of any proposed adverse action, and that identifies the adjudicative criteria that are relevant under the circumstances.
2. An opportunity to respond. Here again the Commission believes that this opportunity is already afforded to both classes of employees. In any event, the Commission believes that it should be.
3. The right to a hearing or other appearance before a tribunal. A hearing and a trial-type hearing are not synonymous terms. Many forms of proceedings, including some more informal than those now available to civilian DoD employees, could accurately be described as hearings, even though they don't have the characteristics typically associated with trials, such as live testimony subject to cross-examination and precise rules governing the admissibility of evidence. The real issue here is not whether there should be a right to some sort of hearing, because civilian DoD employees already have that right. The issue is whether the hearing rights of civilian employees and contractor employees should be conformed, which is an issue we discuss in a moment, under the caption "The availability of trial-type procedures."
So far as concerns the right to an "appearance before a tribunal," the Commission understands that as matters stand today, civilian DoD employees cannot demand, with any assurance that the demand will be granted, an opportunity to appear personally before any designated adjudicative authority that is considering whether to deny or revoke a clearance. The Commission believes such an opportunity should exist.
4. The right to be represented by counsel. This right exists today, although it is diluted by the fact that employees who retain counsel must do so at their own expense, and the cost may be beyond the means of many employees. We note again that contractor employees, particularly senior officials, may have an important edge here, because for them, unlike civilian DoD employees, there is at least a possibility that the employer may agree to bear the cost of any legal representation. The Commission also believes that while the right to counsel is secured to civilian employees in the sense that there is nothing to stop them from consulting an attorney if they choose to do so, such employees should be explicitly informed, as are contractor employees, that they have this right.
5. The availability of trial-type procedures, such as the opportunity to present and cross-examine witnesses. The availability of such procedures to DoD contractor employees, and their unavailability to DoD civilian employees, is the most dramatic difference between the two adjudicative systems. The hard question posed by the Conference Report is whether such procedures should be extended to the civilian employees.
The Commission recognizes that there may be complex legal issues that come into play here, and that the nature of those issues may vary from one individual case to another, depending for example on such circumstances as whether the person affected is an initial applicant for a clearance or already holds a clearance, whether the denial or loss of a clearance leads to the loss of a job, and whether and if so how far and in what way the person's reputation may be impaired or the person may otherwise be stigmatized by an adverse decision. Again, however, any legal issues are for courts to determine, and are beyond the purview of the Commission.
On balance, from solely a policy standpoint, the Commission does not favor the idea of extending trial-type procedural protections to civilian DoD employees.
As already noted, the hearing rights currently granted to contractor employees are broader and more absolute in important respects than even the hearing rights available to civil litigants whose claims and defenses are adjudicated in the Federal courts. No matter what interests such litigants may have at stake, they are not entitled to a trial, and their claims or defenses may be resolved against them on the basis of written submissions, unless they are able to show that there is something to have a trial about-namely, a material factual dispute that needs to be resolved. Contractor employees faced with a denial or loss of clearance, however, are evidently entitled to a trial-type hearing, on demand, without making such a showing.
The extension of such a broad hearing right to civilian employees could well result in a great many trial-type hearings in cases involving only undisputed facts. It would certainly have the result of putting a great many more discretionary clearance decisions into the hands of judges. It would also introduce new and significant delays into the system, because it is unquestionably the fact that cases handled under the DISCR process, if trial-type hearings are demanded, on the average take far longer to resolve than cases adjudicated on a written record. Such delays are not merely a matter of inconvenience. One practical effect is that persons who are applicants for an initial clearance, and have been assigned to positions requiring a clearance, cannot move into those positions so long as the clearance outcome remains in doubt. Other difficulties arise if a person already holds a clearance that is threatened with revocation. If that clearance is a job requirement and is suspended pending the outcome of the revocation proceedings, the person cannot perform the job in the meantime. If the clearance is not suspended pending the outcome, a security risk must be taken in the meantime. In all these circumstances there is a price to be paid, not just by the employee but also by the government.
To be sure, there will always be cases that do involve serious factual disputes, and in which the existence or non-existence of those facts and the credibility of witnesses might be determined with more certainty if trial-type procedures were employed. There may also be cases in which an experienced Administrative Judge might be better able to apply the clearance criteria even to undisputed facts than other adjudicators. These considerations, however, do not persuade the Commission to alter its policy advice. Trial-type procedures are at their most effective in promoting fairness and accuracy only when both sides are equally represented. In the DISCR process only the government is sure to be represented. The same would be true if the DISCR model was followed for DoD civilian employees. The Commission is also influenced in its view by the fact that such employees are less likely than contractor employees to lose their jobs, or to incur serious damage to their careers, if a clearance is denied or revoked. And the Commission is also influenced by its doubt that, if given the choice, most civilian employees would prefer the DISCR process to the system now in place.
At the same time, the Commission believes that the fairness of the system now in place can and should be improved. In particular, the procedural protections now available to DoD civilian employees should be expanded to include the same explicit right to review any documents on which a proposed denial or revocation of a clearance may be based, or which are germane to such a proposed action, that is presently afforded to DoD contractor employees. This opportunity should be afforded as early in the process as possible, so as to make it useful to the employee in preparing an initial written response to the allegations set forth in statement of reasons that commences the process.
6. The opportunity to appeal any final decision. This right exists today. Indeed in some ways, as already noted, the appeal available to civilian employees may be a more valuable right than the appeal available to contractor employees, because the latter is constrained by scope-of-review limits whereas the former gives the employee a true "second bite at the apple." Nevertheless, the Commission realizes that the appeal procedures vary from one DoD component to another and believes that these procedures should be standardized and should provide for review by appeal boards consisting of three members. In the Commission's view these boards should have a diverse membership, including at least one senior official in the employee's DoD component and, in the absence of an attorney adviser to the board, one attorney. Part of the purpose here would be to ensure a broad perspective, and a review that is not solely in the hands of security officials.
The Commission recommends that:
a) The DISCR process, with its trial-type procedures, not be adopted as the model for the adjudication of security clearance cases involving DoD civilian employees.
b) All DoD civilian employees facing the possible denial or revocation of a security clearance be explicitly informed that they have a right to counsel.
c) Any documents on which a proposed denial or revocation of a security clearance is based, or which are germane to such a proposed action, be made available for timely review by the affected DoD civilian employee, so far as applicable privileges and national security considerations permit.
d) Any DoD civilian employee be given the opportunity to appear personally before any adjudicative authority that is considering whether to deny a clearance to such an employee, or to revoke a clearance held by such employee.
e) Any DoD civilian employee have a right to appeal any adverse clearance decision to an appeal board consisting of three members, one of whom should be a senior official in the employee's DoD component and another of whom, unless the board has an attorney, should be an attorney. (Footnote 13)
Even though issues relating to military personnel are outside the bounds of the recent congressional inquiries that the Commission took as its framework, the Commission has considered whether there is any good reason why DoD military personnel should be treated any differently than DoD civilian personnel in regard to the denial or revocation of security clearances. In the Commission's view there is no such reason, and it is bolstered in that view by the fact that the DoD regulation applicable to civilian personnel, 5200-2-R, is similarly applicable to military personnel.
The Commission recommends that, so far as concerns the denial or revocation of security clearances, DoD military personnel be afforded all the same rights as DoD civilian personnel.
Special Access Approvals
The Commission now turns its attention to another question posed by the Congress in the 1994 Defense Authorization Act, which was "whether there should be a difference between the rights provided to both Department of Defense civilian and contractor employees with respect to security clearances and the rights provided with respect to sensitive compartmented information and special access programs."
This question arises because DoD Directive 5220.6, which is the regulation applicable to the denial or revocation of contractor employee clearances, explicitly provides that it "does not apply to cases for access to sensitive compartmented information or a special access program"; because DoD 5200.2-R, which is the regulation applicable to the denial or revocation of civilian employee clearances, may or may not be followed in connection with the denial or revocation of access to a SAP; and because denials or revocations of access to Sensitive Compartmented Information (SCI) is governed by DCID 1/14, issued under the authority of the Director of Central Intelligence, which establishes yet another set of procedures.
These different procedures owe their existence to the fact that special access and SCI security determinations have historically involved the application of more selective and stringent adjudicative criteria than clearance determinations. If the Commission's basic classification system recommendations, and its recommendation that there be a common set of adjudicative criteria, are adopted, the rationale for these different procedures would disappear. There would no longer be any separate special access determinations, except on need-to-know grounds. The clearance decisions would then settle the matter of eligibility for all purposes, either at the Secret level or at the Secret Compartmented Access level. The denial or revocation of clearances in DoD contractor personnel cases would be subject to the DISCR process, and the Commission believes that DoD civilian employee cases should then be subject to existing DoD procedures (the 5200.R-2 procedures), as modified by the Commission's recommendations in this section of its report.
If on the other hand the Commission's classification system and adjudicative criteria recommendations are not adopted, with the result that SAP and SCI access determinations continue to be based on separate and more demanding requirements than clearance determinations, then further judgments will need to be made about the procedural safeguards that should apply to the denial and revocation of an access approval. In that event, the Commission believes that the appropriate safeguards for both DoD civilian and contractor employees are those prescribed by DoD 5200.2-R, again as modified by the recommendations in this section of the report. The Commission does not recommend that the denial or revocation of an access approval, if such an approval remains distinct from a clearance decision, be made subject to the DISCR process, even as to DoD contractor employees.
The polygraph is a controversial investigative technique. While some argue that the polygraph is the most effective information gathering procedure available, others point to its lack of scientifically established validity, the overreliance on passing polygraph examinations as a "guarantee" of trustworthiness, and the belief that it is unacceptably intrusive and violates personal privacy. The Commission was asked to undertake an objective review of the Federal personnel security screening polygraph program to determine how well it works, how it could be improved, and whether it should be continued. (Footnote 14)
The polygraph (Footnote 15) is a multichannel instrument that records changes in respiration, cardiovascular activity, and skin resistance in response to questions. According to polygraph theory, when a subject gives a false response to a relevant question (questions of concern to security adjudicators), the physiological reaction will be greater than the reaction to other questions (control or irrelevant questions). However, contrary to popular belief, there is no physiological response that is unique to deception. The reactions measured by the polygraph can be caused by a variety of emotions. This fact underlies much of the controversy surrounding the polygraph.
The polygraph process consists of a pretest interview, test phase, and posttest interview. During the pretest interview the polygraph examiner tries to establish rapport with the subject, reviews with the subject the background history statement, familiarizes the subject with the polygraph instrument if necessary, and then enters into a detailed explanation and discussion of the exact questions that will be asked during the test phase of the exam. It is generally not explained to the subject that there will be two or more different types of questions asked during the examination. There are questions of primary interest such as "Are you engaged in espionage?" or "Within the last 5 years have you used, possessed or sold any narcotics or dangerous drugs?" These questions are also known as "relevant" questions. Also included are a series of questions designed to assist the examiner in calibrating the subject's responses to the relevant questions during the test phase. Depending upon the polygraph technique used, such a question may be an irrelevant question (Are you wearing shoes?) or some type of a control question (Have you ever betrayed the trust of someone who depended on you?). The subject may or may not be asked to lie in response to the control questions and at present, most subjects are not told to lie. The examiner, who is a trained investigator and usually highly skilled in interrogation, will encourage the subject to "come clean" on each of the relevant questions while at the same time attempting to restrict or minimize the subject's answers to the control questions.
Significant admissions to relevant issues are explored fully through interrogation. Unimportant admissions are excluded by modifying the questions with, "Except for what you have disclosed to me, have you ever . . . ?" This process continues until the subject is able to answer all questions with a "yes" or "no" and the examiner is convinced the subject will properly respond to all types of questions posed during the exam, that is, a guilty subject will react to the relevant questions while an innocent subject will react most significantly to the control questions.
During the test phase the subject is attached to the polygraph instrument and is limited to responding "yes" or "no" to the relevant and control questions asked. The test phase is generally very short in duration. During the posttest phase, the subject is given an opportunity to explain any reaction to certain questions. Standard interrogation techniques are employed, but only responses to relevant questions are explored with the subject. If the subject offers an admission, the test is readministered with the question causing the reaction changed to "Other than what you have told me, . . . ?" or a new set of questions are asked that focus more narrowly upon the issue(s) in question. This process continues until the subject no longer reacts to any of the (modified) relevant questions, the subject terminates the interview, or the examiner determines that additional testing may need to be conducted at a later time.
Establishing the proper examination setting is challenging for the examiner and can be very stressful to both innocent and guilty subjects. Even innocent subjects have to undergo an extremely unpleasant self-examination, before a government investigator, regarding highly personal information, while knowing that the whole proceeding is being recorded. Many Commissioners were troubled by the wide latitude given to examiners and the possibilities for abuse, especially where relevant and control questions are used to elicit highly personal information of questionable relevancy to security screening. While attempts can be made to minimize the discomfort level for innocent subjects such settings can and do result in anguish and in complaints of abuse.
Applications of the Polygraph
The DoD and the Intelligence Community use the polygraph in the following areas: specific issue investigations (criminal and security), personnel security screening, and operations (vetting and validation of intelligence sources). The Commission evaluated the use of the polygraph in personnel security screening only. Specific issue investigations and operational uses of polygraph were outside the scope of this review.
Two types of polygraph examinations are currently used in personnel security screening: the counterintelligence-scope (CI-scope) polygraph and the full-scope polygraph. The CI-scope polygraph focuses on espionage, sabotage, terrorism, subversion, mishandling of classified information, and unauthorized contacts with representatives of foreign governments. The full-scope polygraph covers all of the CI-scope questions and a number of issues that pertain to both security and suitability for employment (questions that have been inaccurately labeled "lifestyle"). These questions may address any of the following issues: criminal history, serious financial problems, use of illegal drugs, excessive use of alcohol, falsification of information on the personal history statement, and serious nervous or mental disorders. Questions about sexual orientation are no longer asked during polygraphs. The entire polygraph process (pretest, test and posttest) in the DoD and the Intelligence Community is recorded (video and/or audio). The recording is justified on quality control grounds, but it also raises concern because it creates a record of extremely sensitive, personal information about the applicant.
Screening polygraphs, particularly the full-scope polygraphs, are more controversial than specific issue polygraphs because they cover a wider range of personal matters and are administered to individuals who are not suspected of specific wrongdoing. Polygraph opponents argue that screening polygraphs are intrusive dragnets for information and that individual privacy interests outweigh the government's need for such wide-ranging searches. Proponents contend that screening polygraphs are used only to seek information that is relevant to trustworthiness and therefore to national security interests. They point out that these same issues are addressed in personal history statements, personal interviews, and background investigations and that the basis for asking them derives from approved adjudicative criteria.
The CIA and the NSA are the only agencies that use full-scope polygraphs to screen applicants for employment. For these agencies, the screening polygraph serves both security and suitability functions. They require the polygraph as a condition of employment because any employee of these agencies may have access to a broad range of classified information in the course of his or her regular duties. The DoD, which uses a CI-scope polygraph only, has been limited by Congress to 5,000 screening polygraphs per year (with major exceptions such as the NSA, the NRO, and cryptographers). The DoD's use of the screening polygraph is not related to employment. Rather, these polygraphs are administered to people who already occupy sensitive positions but require access to a specific or several sensitive programs for which the polygraph has been established as a requirement.
The following arguments have been made in favor of the polygraph:
a. A Unique Source of Information: Officials at the CIA and the NSA point out that the polygraph elicits important adjudicative information that is often not obtainable by other investigative methods, such as personal history statements, personal interviews, and background investigations. In fact, the most important product of the polygraph process is more likely to be an admission made during the interview than a chart interpretation. While senior officials at the CIA and the NSA acknowledge the controversial nature of the polygraph process, they also strongly endorse it as the most effective information gathering technique available in their personnel security systems. They argue that without the polygraph, the quality of their work force would suffer immeasurably.
The DoD uses a CI-scope polygraph only after individuals have been thoroughly investigated and favorably adjudicated. Nonetheless, DoD officials report that they have obtained significant security and counterintelligence admissions that were not developed through the prescreening and investigative process. The DoD catalogues and reports these results annually to Congress.
The utility of the polygraph in eliciting important adjudicative information is not in doubt. In addition, the Commission found that the suitability or "lifestyle" questions (particularly those that address criminal activity and illegal drug use) have always elicited the most information. Research studies have supported these views:
o In 1980 a working group of the DCI Security Committee found that the polygraph examination process was superior to other investigative methods in eliciting adverse information that ultimately resulted in denial or revocation of access.
o An April 1991 study by the Personnel Security Working Group, (an Intelligence Community interagency working group), unequivocally identified the polygraph as the most productive source of derogatory information in the screening arena, eliciting such information in 70 percent of the cases in which it is used.
o A September 1993 CIA study cited the following polygraph benefits: it enables the CIA to forgo random drug testing for staff employees or those with staff-like access; it facilitates the flow of classified information within the organization; it enables the CIA to use minimal internal information systems security checks; and it reduces the need for domestic physical security countermeasures.
b. Deterrence: Screening polygraph programs arguably have a deterrent effect. Applicants who believe that the polygraph will elicit disqualifying information may be deterred from applying. Cleared personnel also may be deterred from misconduct because they know that they will be required to take a polygraph in the future. In fact, the CIA's Inspector General noted that the polygraph has been instrumental in reducing the incidence of fraud and other wrongdoing at the CIA. In addition, a 1993 study by the DCI's Counterintelligence Center and an Intelligence Community research project have concluded that the polygraph is a significant espionage deterrent.
c. Cost-Effectiveness: The CIA and the NSA, two agencies that routinely use full-scope polygraphs to screen applicants, present a strong case that the polygraph serves as an efficient and effective cost-containment hiring tool. When admissions made by a subject during a polygraph test result in a disqualification, these agencies are saved the considerable cost and time of conducting a background investigation. In addition, the CIA's Office of Medical Services reported to the Commission that full-scope polygraphs enable it to detect and screen out 50 percent to 75 percent of the most troubled applicants. They expressed concern that if the suitability questions were reduced or eliminated this would result in increased terminations for cause, security breaches, and medical, legal, and administrative costs arising from contested terminations and increased psychiatric difficulties in the work force.
The following arguments have been made against the polygraph:
a. Lack of Scientific Validity: In 1983, the Congressional Office of Technological Assessments concluded that: "There appears, as yet, to be no scientific field evidence that polygraph examinations . . . represent a valid test to prescreen or periodically screen government employees." A 1991 government review of the polygraph in personnel security applications reaffirmed the earlier study and concluded that "the number and quality of screening studies is insufficient to provide a basis for reliable estimates of validity." The Commission reviewed many other studies as well. The results of these studies were too varied to allow for definitive conclusions about the validity of the polygraph when used for personnel security screening. The Commission also met with various research experts in polygraph and related fields and learned that due to the extraordinary difficulty of conducting screening polygraph validity research, the scientific validity of the polygraph is yet to be established.
Many polygraph proponents and some research experts believe that it is unnecessary to study the validity of the polygraph process, meaning its accuracy in distinguishing truth from deception. They contend that as long as the polygraph elicits admissions to screen out unsuitable applicants and actual security risks, questions about the polygraphs validity remain academic. However, if the polygraph does not have established scientific validity in the screening arena, judgments about truthfulness based solely on chart interpretation will continue to be controversial. 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. Furthermore, arguments could be made that the polygraph may not have the same effect on a nonbeliever; that is, unless the validity of the process can be demonstrated, 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.
b. Intrusiveness: Polygraph testing can be a highly intrusive and emotionally grueling process. Some claim that this results in lost talent when suitable individuals refuse to participate in a polygraph examination. Other individuals and organizations have argued that there can be no justification for the use of the polygraph. The Department of State has refused to use the polygraph for personnel security screening, even for those with access to the most highly protected information. The ACLU views the polygraph as an unacceptable invasion of privacy, an affront to human dignity, a violation of self-incrimination prohibitions, and an unreasonable search and seizure.
Comparison or control questions are frequently identified as the most intrusive aspect of the polygraph. Control questions are used to elicit untruthful or uncertain responses from subjects (for example, "Have you ever violated the trust of a close friend?"). Physiological reactions to these questions are compared to reactions to the relevant questions (for example, "Have you ever committed a serious crime?"). It is assumed that "innocent" subjects will react more strongly to the control questions than the relevant questions, while the reverse will be true for "guilty" subjects. For this reason, "innocent" subjects frequently experience the control questions as intrusive or embarrassing (indeed, the intent is to generate some degree of discomfort) and worry that their responses will be kept in a permanent record.
The DoD has developed a less intrusive type of control question called the directed lie. In this technique, the examiner directs the subject to lie in response to certain questions (the control questions) so that a physiological reaction can be obtained while lying. Directed lie control questions differ from other types of control questions in that the subject is specifically instructed to lie to these questions and no admissions are solicited or allowed. Knowing their true purpose, people generally experience these questions as less intrusive. Research is currently under way to further validate this technique.
As unpleasant as the polygraph process may be to some individuals, the Commission did not find any ground swell of antipolygraph feeling among the government and contractor personnel who are most heavily exposed to it. On the contrary, available surveys suggest the majority of those who take a screening polygraph believe that the examinations are conducted fairly and professionally.
c. Over reliance: In the absence of admissions, polygraph tests are not infallible: truthful subjects sometimes "fail" and untruthful subjects sometimes "pass." When the polygraph test result is used as a primary determinant of "truth," there will be occasions in which innocent people are falsely accused and guilty people avoid detection.
Despite assertions to the contrary, adjudicative decisions have been made on the basis of polygraph chart interpretations without admissions. Managers and security officers who make decisions based on polygraph test results need to be aware of the fallibility of the polygraph screening process. Also, the Commission is concerned that, in times of declining financial resources, agencies may be tempted to rely more on the polygraph at the expense of more thorough investigations, decreasing the checks and balances provided to the personnel security process by background investigations and financial checks and increasing the likelihood of spies being hired or allowed to continue espionage activities started after initial employment.
Despite the controversy, after carefully weighing the pros and cons, the Commission concludes that with appropriate standardization, increased oversight, and training to prevent abuses, the polygraph program should be retained. In the CIA and the NSA, the polygraph has evolved to become the single most important aspect of their employment and personnel security programs. Eliminating its use in these agencies would limit the effectiveness of security, personnel, and medical officers in forming their adjudicative judgments. However, the Commission unanimously endorses the adoption of procedural safeguards and oversight (discussed later in this section) to ensure that the technology is used in a reliable, consistent, and ethical manner. We support the standardization of the process to ensure basic fairness and reciprocity. We believe that the intrusiveness of the procedure should be minimized and mechanisms should be put in place to resolve ambiguous results quickly and efficiently.
The Commission believes that polygraph examinations should be limited to CI-scope for all security screening examinations, except for applicants seeking staff positions at the CIA and the NSA. Almost all of the Commissioners believe that polygraph examinations for these CIA and NSA staff applicants can be restricted without reducing security benefits. The Commission recommends that polygraphs for applicants for CIA and NSA staff positions consist of only the CI-scope questions plus questions on serious criminal conduct and recent drug use. This ensures uniformity between the two agencies and eliminates broader questions about financial problems, alcohol use, nervous or mental disorders, and falsification of any information on the personal history statement. The record indicates that the questions about serious criminal conduct and recent drug use are much more likely than the other questions to produce information of significant value in making security and suitability decisions. These restrictions on the polygraph for CIA and NSA staff applicants will limit its intrusiveness without sacrificing its security benefits. A CI-scope polygraph should be used for all reinvestigations, even for CIA and NSA employees. One of the ten Commissioners believes that the CIA and the NSA should be permitted to use the questions currently being asked during applicant screening polygraphs examinations, with due regard for the need to standardize the questions as soon as possible.
The Commission is concerned about overreliance on the polygraph. Under the security scheme we have proposed, the polygraph would not be a general requirement for access to classified information: a NACI plus credit will be required for access to generally protected information and an SSBI for access to specially protected information. Nor would the polygraph necessarily be a requirement for access to multiple specially protected programs, as it is today in the DoD. Instead, the polygraph should only be an option in those rare instances when the Secretary of Defense or the Director of Central Intelligence approves its use for particular controlled access activities, or if required as a condition for staff employment at the CIA or the NSA.
The Commission recommends that:
a) The screening polygraph should be used by those DoD and Intelligence Community organizations that currently employ it as follows:
1) Polygraph examinations should be limited to CI-scope for all security screening examinations except for initial applicants seeking staff positions at the CIA and the NSA.
2) The screening polygraph examinations of initial applicants at the CIA and the NSA should be limited to CI-scope plus questions on serious criminal conduct and recent drug use.
3) A CI-scope polygraph should be used for all reinvestigations, even for the CIA and the NSA.
b) The polygraph should not serve as a bar to clearance reciprocity or the exchange of classified or sensitive information.
c) The intrusiveness of control questions must be minimized, strict oversight must be established to prevent abuses, information elicited by control questions must not be kept in a permanent record unless it relates to criminal activity, and procedures must be adopted to ensure compliance with these requirements.
d) Physiological reactions, without admissions, to questions during a polygraph examination should not be used to disqualify individuals without efforts to independently resolve the issue of concern.
The Commission is aware of the potential for abuse and the actual past abuses associated with polygraph programs. For example, in some instances examiners have pursued issues beyond the scope of the inquiry. We believe that the polygraph process must minimize intrusiveness as much as possible. This can be done by training examiners in less adversarial methods and by implementing rigorous quality control procedures. While a number of safeguards have been built into the current system (such as internal polygraph quality control procedures and Inspector General reviews), the Commission believes that an external, independent, centralized oversight mechanism is needed to monitor the programs and manage complaints. Such a mechanism would provide a focal point for tracking and investigating reports of abuse and ensure that the polygraph programs are responsive to the concerns of polygraph subjects.
The Commission recommends that an independent, external mechanism be established by the security executive committee to investigate and track polygraph complaints. This mechanism also should monitor and oversee the polygraph programs' compliance with standards and conduct periodic satisfaction surveys of polygraph subjects.
The Commission found that the personnel security screening polygraph program is characterized by a complicated web of inconsistent and misunderstood practices. Agencies vary as to when or if it is required, where or how it is administered, the subject areas covered, and what techniques are employed in administering the tests. For example, the Commission finds no acceptable reason why the CIA and the NSA should cover different subject areas in their full-scope polygraphs. The Commission also is concerned that the same questions are worded differently and are therefore open to differing interpretations, decreasing confidence in the objectivity of the process. The Commission believes that these differences should be minimized.
The Commission recommends that standards be developed to ensure consistency in the administration, application and quality control of screening polygraphs.
The need for standardization and consistency is also evident in the contractor world. The NSA is the only agency that requires full-scope polygraphs for all contractors prior to granting access to compartmented information. The DoD requires only a CI-scope polygraph for their contractors, but generally grants access prior to (and sometimes without) administering a polygraph. (Footnote 16) The CIA requires only CI-scope for those contractors outside its facilities but full-scope polygraphs for those contractors with regular working access to its facilities and computer systems. Such inconsistent applications should be eliminated.
The Commission believes that enhanced efficiency and cost savings can be realized by establishing one organization to serve as the executive agent for conducting polygraphs on contractor personnel who do not require regular working access to government facilities. The executive agency would oversee the operation of joint polygraph facilities at strategic sites that would serve to maximize the efficient accomplishment of a maximum number of examinations. The executive agency would also coordinate the scheduling of all contractor polygraph examinations to economize on travel requirements. Most importantly, an executive agency would facilitate the standardization of the CI-scope polygraph as well as the reciprocal acceptance of polygraphs throughout the DoD and the CIA intelligence community. The joint investigative service (described in chapter 7) would be a logical organization to perform this service.
The Commission recommends that:
a) The CI-scope polygraph be adopted as the standard for all contractor personnel.
b) Polygraph examinations for all contract personnel working at contractor facilities be conducted under the auspices of a single entity.
Training, Research, and Development
Many believe that the single most significant variable in the polygraph process is the competency and integrity of the examiner. Any polygraph technique, no matter how benign, can be used in an abusive way by an improperly trained or misguided examiner. Competence is a primary requirement for ethical practice. For this reason, the Commission believes that it is essential for examiners to be formally trained and professionally certified under a single entity. Polygraph examiners also should be required to maintain professional certification through a formal continuing education program.
The Commission recommends that certification of polygraph examiners under the auspices of a single entity should be mandatory. Mandatory requirements for recertification also should be established.
Most polygraph training is conducted at the DoD Polygraph Institute (DoD/PI), although the CIA trains its own examiners and some from the NSA. In the interest of efficiency and consistency, the Commission believes that all government polygraph training and certification should be conducted by a single entity. Incorporating the CIA training program into the DoD Polygraph Institute would standardize and enhance the quality of polygraph training provided by the government. The DoD Polygraph Institute also should be made a national or Federal polygraph institute and, if subject to relocation due to base closure, consideration should be given to locating the institute closer to its customer base.
The Commission recommends that the CIA polygraph school be consolidated into the DoD Polygraph Institute to form a national polygraph institute that would conduct all training and certification of government polygraph examiners.
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. The Commission realizes that these recommendations have been made in the past, with little effect. A greater commitment must be made to sustain funding of research to establish the validity of the polygraph in personnel security screening applications.
The Commission believes that research is also needed to determine which polygraph techniques work best in which situations and with which subjects. The ongoing development of scoring algorithms and computerization would increase the objectivity of the polygraph process and provide a basis for addressing countermeasure threats. We also believe that research should explore other methods of detecting deception that could be used in conjunction with or in place of the polygraph.
The Commission recommends a robust, interagency-coordinated and centrally funded research program (Footnote 17) should be established with the DoD/PI as executive agent. The polygraph research program must concentrate on the development of valid and reliable security and applicant screening tests and standardize their use.