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USE OF THE POLYGRAPH IN SECURITY CLEARANCE DETERMINATIONS

 

     On March 31, 1998 a divided Supreme Court, in Unites States v. Scheffer, held that the results of a polygraph exam could be banned from use in a criminal trial by either side because there is simply no consensus that polygraph evidence is reliable. The Court found that the scientific community and the State and Federal courts are extremely polarized on the matter.(1) The Scheffer case resulted from a Court Martial in which the defendant had attempted to introduce the results of a polygraph in support of his testimony that he did not knowingly use drugs, but the government argued against its reliability. Five of the concurring and dissenting justices noted: "there is much inconsistency between the Government's extensive use of polygraphs to make vital security determinations, and the argument it made in that case stressing the inaccuracy of these tests."(2) The majority of the Court found nothing inconsistent however, in the polygraph's use by the Government for personnel screening and as a tool in criminal and intelligence investigations because, it said, such limited out of court uses of polygraph techniques differ in character from and carry less severe consequences than the use of polygraphs as evidence in a criminal trial.(3)

The Court noted that between 1981 and 1997, the Department of Defense conducted over 400,000 polygraph examinations to resolve issues arising in counterintelligence, security, and criminal investigations. Justice Stevens in a dissenting opinion supported its use by DoD, because, he said, its polygraph operators were trained in its own Polygraph Institute, "which is generally considered the best training facility for polygraph examiners in the United States".(4) The Supreme court's opinion has put to rest any argument against the continued use of this technique as a tool in national security investigations.

A number of Federal agencies require applicants to undergo a polygraph exam as part of the hiring process for employment screening. They are the Central Intelligence Agency, Defense Intelligence Agency, Drug Enforcement Agency, Federal Bureau of Investigation, National Security Agency, and National Reconnaissance Office. The White House, National Security Council, State Department and Congress have not adopted polygraph screening. Even among the agencies that use the polygraph, the scope, methods, and procedural safeguards may diverge.(5)

The use of the polygraph in security clearance investigations has a long and controversial history and even before the Scheffer case there was a well reported dichotomy of opinion regarding its validity. The 1997 Report of the Commission on Protecting and Reducing Government Secrecy summarizes this divergence of opinion stating:

Senior officials from agencies that use the polygraph see it as a significant tool because of its utility in generating admissions of wrongdoing, either during the pre-test, test, or post-test period. The polygraph saves time and money, and it serves as a deterrent by eliminating some potential applicants from seeking a highly sensitive position in the first place. The polygraph examination is conducted before the background investigation, saving additional resources should the applicant be rejected as a result of polygraph admissions. According to a May 1993 NSA letter to the White House, over 95% of the information the NSA develops on individuals who do not meet federal security clearance guidelines is derived via voluntary admissions from] the polygraph process.(6)
 

The Report notes that not only do many senior Intelligence Community officials believe that the polygraph is useful, but also believe that it is scientifically valid. It further notes the reservations that many other have for using the polygraph as a fact-finding tool stating:

Although the polygraph is useful in eliciting admissions, the potential also exists for excessive reliance on the examination itself. A related concern is that too much trust is placed in polygraph examiners' skills, creating a false sense of security within agencies that rely on the polygraph. The few Government-sponsored scientific research reports on polygraph validity(as opposed to its utility), especially those focusing on the screening of applicants for employment, indicate that the polygraph is neither scientifically valid nor especially effective beyond its ability to generate admissions (some of which may not even be relevant based on current adjudicative criteria).(7)
 

A 1989 Department of Defense Polygraph Institute (DoDPI) study found that 60 percent of subjects were incorrectly cleared in a test that measured the subject's knowledge or guilt of a crime. The results of this test concluded that the ability to identify those guilty or knowledgeable of a crime was significantly worse than chance.(8) The Supreme Court in the Scheffer case referred to various studies which placed accuracy from 50% to 90%.(9)

The courts are divided on whether to admit evidence obtained during a polygraph, some disallowing it on the basis that it is not scientifically valid, while others leaving it to the discretion of the trial judge. The supreme Court continues to leave the question of its admissibility to the individual courts, deciding only that a blanket exclusion is not unconstitutional. Statements made during the course of a polygraph exam are not admissible in a criminal case unless given voluntarily, because of the Constitutional protections of the Fifth and Fourteenth Amendments.(10) However, the denial of a security clearance or access to classified information, or the denial of or loss of employment because of the withholding of a security clearance is not a criminal sanction, so even if a polygraph test were required, the Fifth Amendment right against self incrimination would offer no protection.

Federal administrative agencies handling employee appeals of adverse actions deal with polygraph results in a number of ways. The Defense Office of Hearings and Appeals which decides appeals of security clearance decisions, has held that admissions by an applicant made during a polygraph examination may be admissible even though the results of polygraph examination are not.(11), Such "results" would include the polygraph charts and the polygraph operator's interpretation of those chart, The DOHA Appeal Board has held that Paragraph D.6 of DoD Directive 5210.48 which states that: "no adverse action will be taken solely on the basis of a polygraph examination chart that indicates deception" does not bar the use in evidence of applicant's admissions. DoD Reg. 5210.48-R provides, however, that the "results of an analysis of the polygraph charts may be considered to have probative value in administrative determinations.(12)

The Federal Merit Systems Protection Board, another government agency which considers appeals of adverse employment actions, including whether the proper procedures have been followed in security clearance decisions, does allow the results of polygraph tests into evidence if a foundation is laid establishing the reliability of the test. The MSPB, while finding that polygraph results may be admissible, does not hold that the result of such tests must be accepted into evidence.(13) That decision is left to the presiding official to determine what weight is to be given such evidence.(14)

The MSPB, in a 1980 case, listed a number of factors to be considered in determining the reliability of polygraph evidence. The rigorous test of reliability established in that case was in 1997 substantially diminished in a case allowing into evidence an investigator's summary of the results of a polygraph test which the investigator had found in the files of an earlier police investigation. The basis for admitting it in 1997 was that it was a "public record or report" admissible under Rule 803(8) of the Federal Rules of Evidence, and that the problem of "double hearsay", went simply to the weight not the admissibility of the evidence.(15)

The MSPB allows both the employee and the government to bolster its case with polygraph evidence, but tends to give more weight to tests which support the government's case than those which support the employee's version of the truth.(16) The MSPB's use of polygraph evidence has been affirmed by the Federal Circuit Court of Appeals, holding that it is within the province of the presiding official's credibility determinations.(17)

The Use of The Polygraph by the Department of Defense

The use of the polygraph for any Department of Defense program is governed by DoD Directive 5210.48, which states the DoD policy, and DoD Regulation 5210.48-R which implements it. This Directive and Regulation apply not only to the military Departments but also to the Defense Intelligence Agency and the National Security Agency which are components of DoD. They do not cover its use by the other agencies dealing with national security information except to the extent that DoD personnel may be assigned or detailed to them.

A polygraph examination is mandatory for employment by or assignment to the DIA and the NSA, and for assignment or detail of DoD employees to the CIA.(18) It is also mandatory for employment, assignment or detail to any DoD "special access programs".(19) For any other personnel security investigation it may only be used to resolve serious credible derogatory information, and then only with the consent of the examinee.(20) Moreover, no adverse action may be taken solely on the basis of a polygraph examination chart that indicates deception except upon the written finding by the Secretary or Under Secretary of Defense, or a Secretary of one of the Military Departments that the classified information in question is of such extreme sensitivity that access under the circumstances poses an unacceptable risk to the national security.(21) In addition to the above uses, polygraph examinations are authorized by DoD in connection with security clearance matters only to supplement investigations of federal felonies, of unauthorized disclosure of classified information or of alleged acts of terrorism, to determine eligibility of foreign nationals for access to classified information, or when requested by the subject of a personnel security investigation for exculpation with respect to allegations arising during the course of an investigation.(22)

Procedures for Administering a Polygraph

The procedures for administering polygraphs for DoD programs is spelled out in Part D of DoD 5210.48-R. There is no requirement that a person undergo a polygraph for any reason, however the refusal do to so may be a bar to employment by certain of the DoD agencies such as the DIA, or NSA or assignment to the CIA, or may bar employment on any special access programs.

The person to be interviewed must consent in writing, must be given timely advance notice of the time and place of the polygraph and of the right to have counsel present, and must be advised of the privilege against self-incrimination and of the right to terminate the examination at any time.(23) However, This information is often given to the examinee after he or she is already in the examining room, too late to be effective. The examinee, who may have traveled some distance to attend the examination is placed in the position of having to reschedule, or worse in their own eyes, of appearing to be uncooperative and having something to hide. Frequently, given the timing and context,, the person chooses not to have counsel to their later regret.

The DoD regulation spells out the exact manner in which the examination must be conducted. No relevant question may be asked during the polygraph examination that has not been reviewed with the examinee before the examination, and all questions must have a special relevance to the inquiry. The probing of a person's thoughts or beliefs, or questions on subjects that are not directly relevant to the investigation, such as religious or political beliefs, or beliefs and opinions about racial matters are prohibited.(24)

The examining room where the test is conducted will generally contain only a desk in which the polygraph instrument is installed if it is an older mechanical model, or on which the more modern computer version is placed. The modern version of the instrument consists of a computer which generates lines on a video screen, duplicating the lines drawn by a series of pens on a moving scroll of graph paper on the older mechanical versions.

In addition to the desk, the room will generally contain only a chair for the operator, and chairs for the person examined and his or her counsel. An observation room is normally adjacent to the examination room connected by a one way mirror. The observation room will contain a speaker connected to the examination room, and listening and recording devices to record the examination. The examination may be, but is not always witnessed by another investigator from the adjacent room and it may be recorded.

The role of counsel is limited but important. Counsel may not answer for the examinee, but the examinee and counsel may adjourn to discuss a response before it is given. Counsel's presence is also important to advise on possible self-incrimination issues. Of course, any adjournment during the questioning will be noted in the report of the polygraph operator. Counsel can be in the examining room during the preliminary questioning and may sometimes be allowed during the actual running of the polygraph, but other times may be required to observe the actual testing through the two-way mirror in the adjacent room. Since all of the questions asked during the actual test will have been reviewed prior to the examinee being place on the polygraph machine, there will have been ample time to for counsel and the person examined to object to any question.

The presence of counsel cannot be overestimated. It has a restraining effect on overly aggressive polygraph examiners, and a calming effect on the examinee. In the end however, it will not create truthful answers out of deceptive ones nor allow a dishonest person to "beat the machine". If legal counsel is retained, it should be as early as possible in the process, since counsel can advise on the necessity, if any, of taking the examination, and on the areas of possible self-incrimination.

In general, from an applicant's point of view, unless it is one of those circumstances where a polygraph examination is absolutely required, since one's refusal to take one cannot be used as a basis for adverse action he is better off not taking it.

 Copyright Sheldon I. Cohen

ENDNOTES

1. No. 96-1133, March 31, 1998, Slip. Op. 4-9.

2. Id, Concurring Op. 2.

3. Id, Slip Op. 8, f.n. 8.

4. Id. Dissenting Op. 4-6, f.n. 7.

5. Report of the Commission on Protecting and Reducing Government Secrecy, 90 (1997)(hereinafter referred to as the Report).

6. Report, 90.

7. Report, 90. The Report cites: House Permanent Select Committee on Intelligence, Report on United States Counterintelligence and Security Concerns (1986); Office of Technology Assessment, Scientific Validity of Polygraph Testing: A Research Review and Evaluation--A Technical Memorandum, OTA-TM-H-15 (Washington, D.C.: Office of Technology Assessment, November 1983); House Permanent Select Committee on Intelligence, United States Counterintelligence and Security Concerns; Department of Defense Polygraph Institute, Study of the Accuracy of Security Screening Polygraph Examinations. For additional information and examples of studies that found the polygraph to be scientifically valid in certain applications see, Department of Defense Polygraph Institute, Bootstrap Decision Making for Polygraph Examinations, final report of DOD/PERSEREC Grant No. N00014-92-J-1795 prepared by Charles R. Hotness and Mary K. Devout (Grand Forks: University of North Dakota, 24 August 1992); Charles R. Honts, Theory Development and Psycho physiological Credibility Assessment (Boise: Boise State University, 1996); Charles R. Honts, 1994 Final Report: Field Validity Study of the Canadian Police College Polygraph Technique, Science Branch: Supply and Services Canada, contract #M9010-3-2219/01ST (Grand Forks: C. Honts Consultations, 1994); Christopher J. Patrick and William G. Iscono, "Validity and Reliability of the Control Questions Polygraph Test: A Scientific Investigation," SBR Abstracts, Psychophysiology 24, no. 5(September 1987):604-05.

8. Gordon Barland, Charles R. Honts, and Steven Barger, Studies of the Accuracy of Security Screening Polygraph Examinations (Fort McClellan: Department of Defense Polygraph Institute, 24 March 1989), iii. The Report at p. 90, notes, however, that The DoDPI study was conducted in a controlled setting, and, therefore, may not accurately reflect the conditions under which a polygraph is normally taken.

9. Slip, Op. 6, Dissenting Op. 14.

10. South Dakota v. Neville, __U.S.__, (1983); Schmerber v. California; 384 U.S. 757, 764 (1966).

11. DOHA ISCR Case. No. 94-1057 (Aug. 11, 1995)(Appeal Bd. Decision).

12. DoD 5210.48-R, Chap. 1, Para. C. D.1.

13. Hillen v. Department of the Army, 35 MSPR 453 (987).

14. Meier v. Department of Interior, 3 MSPR 247 (1980).

15. Woodward v. Office of Personnel Management, 74 MSPR 389 (1997).

16. Compare cases favoring the government: Roberts v. Department of the Treasury, 8 MSPR 764 (1981); Flores v. Department of Labor, 13 MSPR 281 (1982); Washington v. Department of Navy, 21 MSPR 370 (1984); Friedrick v. Department of Justice, 52 MSPR 126, aff'd Fed. Cir. No 92-3219(10/07/92);91); with cases favoring the employee; Perez v. Department of the Navy, 4 MSPR 52 (1981); Williams v. Department of HUD, 23 MSPR 213 (1984); Moen v. Federal Aviation Administration, 28 MSPR 556 (1985); Ballew v. Department of the Army, 36 MSPR 400 (1988); Robancho v. Department of the Navy, 52 MSPR 425 (1992).

17. Kumferman v. Department of the Navy, 785 F.2d 286 (Fed Cir. 1986).

18. DoD Dir. 5210.48, Para. D.7, 8.

19. A Special Access Program is defined as: "a program established for a specific class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level." E.O. 12958, Sec. 4.1(h) (1995). These are sometimes called "black" programs, the very existence of which is classified.

20. DoD Dir. 5210.48, Para. D.12(f).

21. DoD Dir. 5210.48, Para. D.6, 9, G.1.

22. DoD Dir. 5210.48, Para. D.12.

23. DoD Dir 5210.48, Para. D.1 - D.4.

24. DoD Dir 5210.48, Para. D.4.                                                              

 

 

 
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