[Senate Hearing 107-294]
[From the U.S. Government Publishing Office]



.                                                       S. Hrg. 107-294
                ISSUES SURROUNDING THE USE OF POLYGRAPHS
=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 25, 2001
                               __________

                          Serial No. J-107-16

                               __________

         Printed for the use of the Committee on the Judiciary










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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina       PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania          JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona                     HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JEFF SESSIONS, Alabama               RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas                CHARLES E. SCHUMER, New York
MITCH McCONNELL, Kentucky            RICHARD J. DURBIN, Illinois
                                     MARIA CANTWELL, Washington
                      Sharon Prost, Chief Counsel
                     Makan Delrahim, Staff Director
         Bruce Cohen, Minority Chief Counsel and Staff Director














                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.    87
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     2

                               WITNESSES

Capps, Michael H., Deputy Director for Developmental Programs, 
  Defense Security Service, Alexandria, Virginia.................     5
Iacono, William G., Professor, Department of Psychology, 
  University of Minnesota, Minneapolis, Minnesota................     8
Keifer, Richard W., Past President, American Polygraph 
  Association, Apopka, Florida...................................    68
Smith, Jeffrey H., Partner, Arnold and Porter, Washington, D.C...    15
Zaid, Mark S., Esq., Counsel, Lobel, Novins and Lamont, 
  Washington, D.C................................................    19

                         QUESTIONS AND ANSWERS

Responses of Michael H. Capps to questions submitted by Senator 
  Leahy..........................................................    95
Responses of Michael H. Capps to questions submitted by Senator 
  Grassley.......................................................   100
Responses of William G. Iacono to questions submitted by Senator 
  Leahy..........................................................   101
Responses of William G. Iacono to questions submitted by Senator 
  Grassley.......................................................   103
Responses of Richard W. Keifer to questions submitted by Senator 
  Leahy..........................................................   104
Responses of Richard W. Keifer to questions submitted by Senator 
  Grassley.......................................................   105
Responses of Mark S. Zaid to questions submitted by Senator Leahy   105
Responses of Mark S. Zaid to questions submitted by Senator 
  Grassley.......................................................   109

                       SUBMISSIONS FOR THE RECORD

Mallah, Mark E., former Federal Bureau of Investigation Special 
  Agent, statement...............................................    89
Maschke, George W., Co-founder of AntiPolygraph.org, statement...    91
Renucci, Pascal, former government defense contractor employee, 
  statement......................................................    92
Roche, William, Detective, statement.............................    94








                ISSUES SURROUNDING THE USE OF POLYGRAPHS

                              ----------                              


                       WEDNESDAY, APRIL 25, 2001

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:03 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch, Specter, and Durbin.

 OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
                       THE STATE OF UTAH

    Chairman Hatch. I would like to welcome everybody to this 
Judiciary Committee hearing on issues surrounding the use of 
polygraphs as a counterintelligence screening tool. We have a 
number of distinguished witnesses with us here today, and on 
behalf of the Committee, I want to thank all of you for being 
here.
    Earlier this year, we all became aware of a very disturbing 
situation at the FBI where one of its agents, Robert Hanssen, 
was accused of being a Russian spy. The alleged security 
compromises are vast and, if true, are severely damaging to our 
National security. In the wake of the Hanssen case, the FBI 
instituted new interim procedures to improve its internal 
security. FBI Director Freeh has appointed William Webster to 
lead a comprehensive internal security review at the FBI and to 
recommend more permanent measures to improve internal security.
    The interim security measures already implemented include 
the use of polygraphs. Now, it is quite possible that the 
permanent changes to FBI's internal security regime will 
include polygraphs in one way or another.
    I see this hearing as an important first step in evaluating 
the changes occurring at the FBI. I expect to hear from Judge 
Webster in the future to discuss this ongoing evaluation and 
recommendation. I would also anticipate that, at the 
appropriate time, we would hear from Director Freeh concerning 
the decisions the FBI will make based upon the work of the 
Webster Commission.
    The purpose of today's hearing is to take the initial step 
of educating the Judiciary Committee on polygraphs, their 
accuracy and reliability, as well as the policy and potential 
legal issues that may arise from the use of polygraphs as a 
screening tool in the counterintelligence context. This should 
be helpful to members and staff as we evaluate whatever new 
internal security plan the FBI decides to implement.
    There is a wide variety of opinions and research on the use 
of polygraphs. There are those who believe they are completely 
unreliable and actually detrimental to security. Others see 
polygraphs as an important tool in an overall security program. 
Today, we will begin to look at the science and policy behind 
the use of polygraphs as a counterintelligence tool.
    For myself, I appreciate the complexities of this issue. As 
a former Chairman of the Labor Committee, or as it is now 
called, the HELP Committee, I have some experience with the use 
of polygraphs in private sector employment settings. Many 
members and I were concerned with the lack of uniform standards 
and the other abuses that were occurring with employment-
related polygraphs in the private sector.
    In 1988, with the assistance of my friend and then Chairman 
of the Labor Committee Senator Kennedy, we passed the Polygraph 
Protection Act of 1988. The Act banned the practice of making 
submission to polygraphs a condition of employment in most 
private sector settings. During the hearings we held on that 
bill, we heard many horror stories about how private employers 
were abusing polygraphs and the hardships to employees that 
occurred therefrom.
    Significantly, however, the Act exempted Federal, State, 
and local government entities. Different considerations and 
controls may exist in the government context, particularly with 
respect to classified information, which require an independent 
analysis as to whether polygraphs, despite whatever limitations 
they may have, should remain a useful tool to be used by the 
government.
    I know many people, including the members of our panel 
today, have strong and divergent views on that issue. I am 
looking forward to hearing the testimony and reading it and 
eventually evaluating the steps taken by the FBI to improve its 
internal security. Now, despite differing views on the 
approach, I know everyone here shares the goal of protecting 
our country's most sensitive information and maintaining a 
vigorous and effective counterintelligence program.
    At this point, I will put the statement of the 
distinguished Democratic leader on the Committee, Senator 
Leahy, into the record, without objection.
    [The prepared statements of Senator Leahy and Senator Hatch 
follow:]

   Statement of Hon. Patrick Leahy, a U.S. Senator from the State of 
                                Vermont

    Today, the Committee will conduct a hearing on ``Issues Surrounding 
the Use of Polygraphs.'' No doubt this a worthwhile subject for a 
hearing. This is, however, but one of the important issues that is 
raised by the arrest last February of FBI Special Agent Robert Phillip 
Hanssen on espionage charges. This Committee has oversight jurisdiction 
over the Department of Justice and the FBI and has both the duty and 
the responsibility to examine how the FBI exercises its critical 
national security and counter-intelligence missions. Yet instead of 
scheduling a comprehensive hearing to review the actions that the FBI 
has undertaken to protect our national security, Members of this 
Committee may read in press reports about interviews given by ``senior 
bureau officials . . . to discuss their actions,'' and about notes 
reflecting high-level meetings with the FBI Director ``which were 
provided by the bureau'' to the press. [See New York Times, April 22, 
2001.]
    The Hanssen case may be the most serious case of espionage in this 
nation's history. According to allegations in a 100-page affidavit 
filed in federal district court in the Eastern District of Virginia, 
for more than 15 years Hanssen used his position in the FBI's elite 
counter-intelligence unit to sell highly sensitive, classified 
information to the KGB. It is alleged that, over the years, Hanssen 
gave the KGB computer disks, volumes of documents and information about 
our government's efforts to collect intelligence on the Soviet Union 
and the Russian Federation. Worst of all, information Hanssen allegedly 
provided to the KGB led to the execution of two of undercover agents 
who were working for the United States. The full extent of the damage 
done to this country's security is not yet known and may never be 
known.
    I appreciate that the allegations against Hanssen are the subject 
of a pending criminal investigation. Obviously, we must not do anything 
to interfere with the work of the grand jury or to prejudice the 
constitutional rights of Mr. Hanssen, who has not been convicted of, or 
as yet formally indicted for, any crime. Moreover, we should not do 
anything to distract the prosecutors and government agents responsible 
for investigating and prosecuting this matter from their duties in the 
case. Finally, any oversight examination done by the Committee must be 
exercised cautiously and with due concern to avoid any appearance of 
undue political pressure and without the slightest implication that any 
Senator seeks to influence the outcome of a pending criminal matter or 
the discretion of a prosecutor or a judge.
    That being said, there remains much about the Hanssen case that 
cries out for public oversight hearings by this Committee. It is simply 
astounding that a security breach of the magnitude described in the 
affidavit in the Hanssen case could have been allowed to go on 
unnoticed under the very nose of one of this nation's most elite law 
enforcement agencies for such an extended period of time. Further, 
according to press reports, a senior FBI investigator specifically 
warned that there could be a mole in the bureau's own ranks over two 
years ago, but his views were rejected. The Hanssen case therefore 
raises serious questions about the FBI's internal controls and security 
procedures and more generally about the FBI's ability to objectively 
and accurately assess allegations of misconduct by its own agents.
    This is not the first time that these concerns have been raised 
about the FBI. The debacles at Waco and Ruby Ridge, the allegations of 
former FBI chemist Frederick Whitehurst about the mishandling of 
evidence at the FBI crime laboratory and allegations that FBI agents 
illegally leaked confidential law enforcement information to 
informants, who were members of organized crime, are all still fresh in 
the public memory. After hearings on Ruby Ridge in 1995, the 
Subcommittee on Terrorism, Technology and Government Information, ably 
led by Chairman Arlen Specter, noted the tendency of the FBI, when 
investigating itself, to accord its own agents ``undue deference'' and 
to accept their stories at face value without a probing inquiry. (p. 
1131). I cannot help but wonder whether a similar explanation accounts 
for the failure of the FBI to detect Hanssen's alleged espionage for 
nearly 15 years, not to mention its rejection of the specific warnings 
of one of its own investigators about a mole within its ranks.
    Questions of this sort, particularly when they arise repeatedly, 
tend to erode public confidence in the competence and integrity of law 
enforcement agencies and government institutions. In the end, the loss 
of the trust of the American people is a far greater threat to the FBI, 
and to our government generally, than the betrayal of a single agent.
    I am aware that, in the wake of Hanssen's arrest, FBI Director 
Freeh has asked for a review of the FBI's security programs to be 
conducted by Judge Webster, who was the FBI Director during part of the 
time that Hanssen allegedly conducted his espionage activities. While I 
have great respect for Judge Webster, his prior position may cause some 
to question any conclusions and recommendations he may reach. I wrote 
to Judge Webster in February asking that he keep me advised of the 
progress of his examination, its expected completion date and his final 
conclusions and recommendations, if any, but to date have received no 
response.
    Although an internal FBI review is appropriate, it is clearly no 
substitute for oversight hearings before this Committee, particularly 
given the FBI's dismal record in investigating itself. In its report on 
Ruby Ridge, the Subcommittee on Terrorism, Technology and Government 
Information noted that ``adequate and independent oversight of the FBI 
is crucial to avoid, at a minimum, the appearance of institutional bias 
within the FBI.'' By definition, the responsibility of exercising 
adequate and independent oversight falls upon this Committee, not the 
FBI. I therefore do not believe that this Committee should defer 
fulfilling its oversight responsibilities until the FBI review is 
completed, whenever that may be.
    Although, unfortunately, we will not be directly focusing on the 
Hanssen case today, we will be hearing testimony from some experts 
about the reliability of polygraph testing. Attorney General Ashcroft 
and others have expressed skepticism about any over-reliance on 
polygraph tests. I share their concerns. Historically, courts have 
almost always excluded polygraph evidence as unreliable. And, with a 
few exceptions, that has generally remained true even after the Supreme 
Court's decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 
579 (1993), which gave federal trial courts greater discretion to admit 
scientifically novel evidence. In fact, in 1998, the Supreme Court 
upheld the constitutionality of a military rule of evidence that 
categorically excludes all polygraph evidence in court martial 
proceedings. See United States v. Scheffer, 523 U.S. 303 (1998). 
According to Justice Thomas, writing for the Court, ``there is simply 
no way to know in a particular case whether a polygraph examiner's 
conclusion is accurate, because certain doubts and uncertainties plague 
even the best polygraph exams.'' Id. at 312.
    The routine use of polygraph testing in government employment 
situations raises even more troubling issues. For example, let us 
assume that polygraph tests are accurate 90 percent of the time, as 
some experts claim. If the police are investigating a crime, and a 
suspect agrees to take a polygraph, the results of that test may be of 
some value to the investigation even if there is a ten percent chance 
that they may be wrong. However, if you polygraph thousands of 
employees of a government agency on a routine basis, the ten percent 
error rate will mean that dozens or even hundreds of innocent employees 
will generate results indicating--falsely--that they are giving 
deceptive answers. While I am not saying that all use of polygraphs 
should be prohibited, particularly in the sensitive area of national 
security, I am very concerned that the rights of these innocent 
employees be carefully protected. In particular, denying a person a 
government job solely on the basis on a polygraph and without any 
corroborating evidence of deception or other unsuitability for 
employment may result in wrongly excluding many qualified people from 
government service.
    The FBI itself has apparently shared these doubts about polygraphs 
because, unlike other national security agencies, it has not routinely 
polygraphed its own agents and employees who have access to classified 
information. Nevertheless, according to recent press reports, the FBI 
has now undertaken to polygraph 500 of its own agents in reaction to 
the Hanssen arrest. I would like to know more about the FBI's recent 
about-face on polygraphs. I would also like to know whether the FBI 
plans to continue using polygraphs, as well as what other steps the FBI 
has taken or is considering taking as the result of the Hanssen case.
    Those are questions that will have to wait until another day and 
another hearing. Consequently, the record of this hearing will 
necessarily be incomplete. Moreover, until we begin meaningful and 
comprehensive hearings into the Hanssen case, the oversight 
responsibilities of this Committee will remain unfulfilled.

                                

Statement of Hon. Orrin G. Hatch, A U.S. Senator from the State of Utah

    I would like to welcome everyone to this Judiciary Committee 
hearing on issues surrounding the use of polygraphs as a 
counterintelligence screening tool. We have a number of distinguished 
witnesses here today, and on behalf of the Committee, I want to thank 
you for being here.
    Earlier this year, we all became aware of a very disturbing 
situation at the FBI where one of its agents, Robert Hanssen, was 
accused of being a Russian spy. The alleged security compromises are 
vast and, if true, are severely damaging to our national security. In 
the wake of the Hanssen case, the FBI instituted new, interim 
procedures to improve its internal security. FBI Director Freeh has 
appointed William Webster to lead a comprehensive internal security 
review at the FBI and to recommend more permanent measures to improve 
internal security.
    The interim security measures already implemented include the use 
of polygraphs. It is quite possible that the permanent changes to FBI's 
internal security regime will include polygraphs in one way or another.
    I see this hearing as an important first step in evaluating the 
changes occurring at the FBI. I expect to hear from Judge Webster in 
the future, to discuss his ongoing evaluation and recommendations. I 
would also anticipate that, at the appropriate time, we would hear from 
Director Freeh concerning the decisions the FBI will make based upon 
the work of the Webster Commission.
    The purpose of today's hearing is to take the initial step of 
educating the Judiciary Committee on polygraphs, their accuracy and 
reliability, as well as the policy and potential legal issues that may 
arise from the use of polygraphs as a screening tool in the 
counterintelligence context. This should be helpful to members and 
staff as we evaluate whatever new internal security plan the FBI 
decides to implement.
    There is a wide variety of opinions and research on the use of 
polygraphs. There are those who believe they are completely unreliable 
and actually detrimental to security. Others see polygraphs as an 
important tool in an overall security program. Today, we will begin to 
look at the science and policy behind the use of polygraphs as a 
counterintelligence tool.
    For myself, I appreciate the complexities of this issue. As a 
former Chairman of the Labor Committee (or as it is now called the 
``HELP'' Committee), I have some experience with the use of polygraphs 
in private sector employment settings. Many members and I were 
concerned with the lack of uniform standards and other abuses that were 
occurring with employment related polygraphs in the private sector. In 
1988, with the assistance of my friend and then-Chairman of the Labor 
Committee Senator Kennedy, we passed the Polygraph Protection Act of 
1988. The Act banned the practice of making submission to polygraphs a 
condition of employment in most private sector settings. During the 
hearings we held on that bill, we heard many horror stories about how 
private employers were abusing polygraphs and the hardships it caused 
employees.
    Significantly, however, the Act exempted federal, state and local 
government entities. Different considerations and controls may exist in 
the government context--particularly with respect to classified 
information--which require an independent analysis as to whether 
polygraphs--despite whatever limitations they may have--should remain a 
tool for use by government agencies.
    I know many people, including the members of our panel today, have 
strong and divergent views on that issue. I am looking forward to 
hearing the testimony and eventually evaluating the steps taken by the 
FBI to improve its internal security. Despite differing views on the 
approach, I know everyone here shares the goal of protecting our 
country's most sensitive information and maintaining a vigorous and 
effective counterintelligence program.

    Chairman Hatch. We have an excellent panel of witnesses 
with us here today. Michael Capps has been involved in the 
polygraph profession for over 26 years as an examiner, 
researcher, and educator. He is currently the Deputy Director 
for Developmental Programs for the Defense Security Service. 
Among his responsibilities is the oversight of the Department 
of Defense Polygraph Institute, for which he served over 5 
years as Director.
    Dr. William Iacono is the distinguished McKnight University 
Professor and Director of the Clinical Psychology Training 
Program at the University of Minnesota. He has served as a 
consultant regarding lie detection to various government 
agencies, including the U.S. Congress Office of Technology 
Assessment, the CIA, and the Department of Defense.
    Jeffrey Smith is currently an attorney in the law firm of 
Arnold and Porter and is a former general counsel at the CIA. 
He recently chaired a review of counterintelligence methods at 
the CIA. It is good to have you here again, Mr. Smith. We 
appreciate it.
    Mark Zaid is an attorney in private practice who has 
represented various government employees who have been affected 
by the use of polygraphs in the workplace.
    Richard Keifer is a former President of the American 
Polygraph Association and has been involved in the use of 
polygraphs for many years.
    We are grateful to have all of you here. We appreciate you 
taking time to be with us and to educate the Committee. We will 
turn to you first, Mr. Capps.

      STATEMENT OF MICHAEL H. CAPPS, DEPUTY DIRECTOR FOR 
 DEVELOPMENTAL PROGRAMS, DEFENSE SECURITY SERVICE, ALEXANDRIA, 
                            VIRGINIA

    Mr. Capps. Good morning, Mr. Chairman. I have submitted a 
written statement for the record.
    Chairman Hatch. We will put the complete statements from 
all of you in the record. If you can summarize in 5 minutes, we 
would appreciate it.
    Mr. Capps. OK, sir. Essentially, what I have done is talked 
about the history of polygraph, that there are 24 government 
agencies or government programs and about 500 polygraph 
examiners within the government. The use of polygraph in the 
government involves the protection of the President, vetting of 
intelligence sources, protection of classified programs, 
confidential informant validation, part of counternarcotics, 
counterinsurgency, counterterrorism programs, screening of 
applicants in intelligence agencies, investigations of human 
rights, management of convicted sex offenders, investigation of 
food and drug tampering, location of assets concealed by 
convicted thieves and drug traffickers, and traditional 
criminal investigation.
    We have supported the use of polygraph by allied nations. 
As a matter of fact, the Defense Department just in the last 
couple of years has paid for the training of Russians to 
protect nuclear weapons by the use of polygraph.
    We have a consolidated training facility at the Department 
of Defense Polygraph Institute, where all Federal examiners 
receive their training. This training is taught at the master's 
level, and now examiners can receive a master's through the 
American School of Professional Psychology through their work 
at the Department of Defense Polygraph Institute.
    The impact of the government polygraph programs is best 
understood in the context of how they are used, and the use, 
sir, is not just to render an opinion that affects someone's 
employment because we do not render that opinion. The opinion 
is made by adjudicators or officials within the organization, 
not by polygraph examiners.
    I think another issue has to do with the research. The 
research is in two areas, that of laboratory and that of field 
work. Critics argue that polygraph is an imperfect tool, and we 
agree that it is an imperfect tool. We agree that the validity 
is not 100 percent and never will reach 100 percent, but we 
believe that the system today without the use of polygraph 
would be more flawed than it currently is.
    That is all I have at this time, sir.
    Chairman Hatch. Thank you, Mr. Capps.
    [The prepared statement of Mr. Capps follows:]

   Statement of Michael H. Capps, Deputy Director for Developmental 
                   Programs, Defense Security Service

    Mr. Chairman and Members of the Judiciary Committee, my name is 
Michael H. Capps. I am the Deputy Director for Developmental Programs 
for the Defense Security Service. Among my responsibilities is the 
oversight of the Department of Defense Polygraph Institute for which I 
served over five years as Director. I have been involved in the 
polygraph profession for over 26 years as an examiner, researcher, and 
educator. I was invited here today to respond to questions on issues 
surrounding the use of polygraphs.
    The instrument we now call the polygraph was introduced into 
federal service in the 1940s and, in addition to its standard role in 
criminal investigations, was used in such noteworthy events as 
investigative support for the Nuremberg Trials, counterintelligence 
support to the then-new atomic weapons facilities and investigations of 
crimes in prisoner-of-war camps.
    The U.S. government now has 24 polygraph programs, staffed with 
approximately 500 polygraph examiners. These men and women serve in all 
regions of the country and much of the world, in the military, 
intelligence, and law enforcement sectors. Current polygraph 
applications for the federal government include: protection of the 
President; vetting of intelligence sources; protection of classified 
programs; confidential informant validation; as part of 
counternarcotics, counterinsurgency, and counterterrorism programs; 
screening of applicants to intelligence agencies; investigation of 
human rights violations; management of convicted sex offenders; 
investigation of food and drug tampering; location of assets concealed 
by convicted thieves and drug traffickers, and; traditional criminal 
investigation. The U.S. government has supported the use of the 
polygraph among allied nations when mutual interests were at stake, 
such as when it supplied training and state-of-the-art polygraph 
equipment to Russia, to help them maintain security over their nuclear 
weaponry after the fall of Communism. It has, on numerous occasions, 
considered providing polygraph training for friendly governments, and 
the U.S. Department of Defense Polygraph Institute (DoDPI) regularly 
receives requests for polygraph training from these nations.
    The DoDPI is the U.S. government's consolidated training facility 
for polygraph examiners from all Federal agencies. To qualify for entry 
into the 13-week program, a candidate must be a U.S. citizen, be at 
least 25 years of age, hold a 4-year degree or demonstrate an ability 
to master graduate-level courses, have two years of investigative 
experience, have completed a background investigation to confirm a 
sound temperament and character, and be nominated and supported by his 
or her home agency. The DoDPI polygraph curriculum is taught at the 
master's degree level, and provides a balance of a challenging academic 
load and technical skills practica. Those students who satisfactorily 
complete the DoDPI education program are released to their home 
agencies, where they serve internships, and remain subject to quality 
control and continuing education requirements for their entire 
professional careers as Federal polygraph examiners.
    One of the recurring concerns for Congress has been the scientific 
foundation of the polygraph technique. In the last 30 years, scientists 
have given their attention to fundamental questions regarding 
polygraphy, such as the methods, reliability and validity. There is 
common agreement in the scientific community that modern polygraph 
techniques do produce very high inter-scorer agreement, usually in 
excess of 90%, and this compares favorably with many other common 
techniques in the behavioral sciences. Algorithms developed by the 
government and commercial entities in recent years hold the promise of 
even better reliability.
    While reliability has not been a major issue for federal polygraph 
programs, a controversy exists on the question of polygraph validity. 
There is a significant body of literature that demonstrates that 
polygraph decisions, based on techniques employed by the U.S. 
government for criminal investigations, have an error rate of perhaps 
10% or lower. However, these findings have been challenged by critics 
for many years because of unique problems associated with the research 
of polygraphy.
    Validation of the polygraph technique has taken two forms: 
laboratory research, and field studies. During laboratory studies, 
volunteer participants are given polygraph tests regarding whether they 
committed a mock crime that had been scripted for them by the 
researchers. Some examinees are programmed to be innocent, and others 
guilty. Laboratory studies provide an excellent opportunity to 
investigate variables of interest to the researcher, because they can 
be controlled with certainty. The shortcoming of laboratory research is 
that mock crimes are not as emotionally engaging to the volunteer 
examinees as is the experience of a field polygraph examination, for 
which failure may have serious consequences for the examinees who are 
suspected of real crimes. Critics point out that laboratory studies may 
be prone to underestimating error rates for innocent examinees (false 
positives) because these examinees are less concerned about being 
accused of the pretended crime than would be an innocent person accused 
of a real crime. Proponents concede this point, but note that the 
laboratory studies also show high accuracy with the examinees who were 
``guilty'' of the mock crime, an outcome that would not be expected in 
a simulated crime.
    Field research of polygraphy is an approach that takes advantage of 
cases that occur as part of existing polygraph programs. Examinees are 
actual criminal suspects who face real world consequences for a failed 
polygraph examination. The examiners have practical experience in the 
administration of examinations with criminal suspects, something 
usually lacking in laboratory designs. Polygraph decisions can 
subsequently be compared to other evidence, such as confessions, DNA, 
or other forensic tests, to determine how closely the polygraph outcome 
matches ground truth. Unlike laboratory studies, in which ground truth 
is known in every case, the ultimate truth in the field setting is more 
elusive.
    DoDPI administers an independent government-wide quality assurance 
program, to verify that the agencies conform to written policies in the 
preparation, conduct, reporting, and reviewing of their polygraph 
examinations. DoDPI quality assurance teams make scheduled site visits 
to each agency biannually. DoDPI inspectors do samplings of the work 
product of the participating agencies, and note deficiencies. DoDPI 
does not evaluate individual cases for accuracy of decisions, nor does 
it become involved in adjudicative issues as part of this quality 
assurance program. However, DoDPI does determine whether polygraph 
practices are consistent with relevant policies.
    The impact of government polygraph programs are best understood in 
the context of the larger process of which they are a part. While 
polygraphy is valued by those agencies that use it, polygraphers are 
not involved in determining the action an agency takes based on the 
results of a polygraph examination. Rather, these decisions are the 
responsibility of adjudication officers, hiring officials, 
investigating officers, or other agency customers of the polygraph 
reports, who must weigh the results along with whatever information is 
available from other sources. Questions regarding hiring, 
investigation, or prosecution in which polygraph results may be a 
consideration, are better answered by those responsible for those 
decisions.
    Counterintelligence screening of applicants and employees is one of 
the more controversial applications of polygraphy. Questions regarding 
the validity of this method are at the core of the debate. Critics 
argue that, as an imperfect tool, the polygraph wrongly classifies a 
percentage of both truthful and untruthful examinees, leading to grave 
consequences in both cases. I suggest that reducing the argument to 
this premise obscures a more relevant issue. First, let us agree that 
polygraphy is imperfect. Under the best of circumstances, errors occur. 
It is imperfect, like every personnel screening tool, including the 
personal interview, background investigation, credit check or 
employment check. However, a properly conducted polygraph screening 
program, with the level of oversight imposed on government polygraph 
programs, results in more adjudicable information than all other 
sources combined. If one takes the position that employment decisions 
should be made on methods that exclude polygraphy, we must agree that 
more errors will occur, not fewer. Second, there is a presumption that 
polygraph results dictate employment destiny. Typically, an adverse 
polygraph results triggers more investigative resources being brought 
to bear to help resolve the doubt. These resources could include an 
investigative interview, enhanced background investigation, or simply 
further polygraph testing. Only in a subset of cases where the 
polygraph results were initially unfavorable does the case remain 
unresolved, and even then, the ultimate employment action depends on 
decisions of those not involved in polygraphy.
    Because of the complexity of the counterintelligence polygraph 
screening process, only a tentative estimate of accuracy can be stated. 
An error rate of perhaps less than 5% is projected for examinees who do 
not demonstrate a significant response in a strictly 
counterintelligence polygraph examination (not including suitability 
coverage), under the combined condition that the examinee cooperates 
with all polygraph processes, including retesting, does not try to 
manipulate the examination, and clearly understands the questions. 
Retesting serves to reduce errors for that category of examinees. The 
error rate for examinees who demonstrate a significant response to the 
polygraph may be higher; however, this can be mitigated if subsequent 
examinations are more focused on discrete issues as opposed to the 
broad and general questions asked during an initial screening 
examination. Limiting the number of retests for examinees who 
demonstrate a significant response to the initial examination could 
reduce this error rate to less than 20%. Retesting practices are policy 
issues, however, not scientific issues.
    This concludes my prepared statement. I appreciate your willingness 
to entertain my comments, and I am now ready to answer your questions.

    Chairman Hatch. Dr. Iacono?

   STATEMENT OF WILLIAM G. IACONO, PROFESSOR, DEPARTMENT OF 
  PSYCHOLOGY, UNIVERSITY OF MINNESOTA, MINNEAPOLIS, MINNESOTA

    Mr. Iacono. Mr. Chairman, members of the Judiciary 
Committee, I want to thank you for having me here to testify on 
this matter of great importance to our country's security.
    I wish to begin by making clear there is no distinctive lie 
response. Polygraph operators try to determine if someone is 
lying by comparing responses to relevant versus control or 
comparison questions. Relevant questions deal with issues 
related to being a traitor to your country, while the control 
questions deal with possible misdeeds from your past.
    For example, the physiological response to the relevant 
question, ``Have you committed espionage?'' is compared to the 
response elicited by the control question, ``Did you ever 
violate a traffic law?'' Both questions are answered no. These 
tests are based on the idea that spies will be more 
physiologically aroused by the espionage question.
    But scientific research suggests that criminals or spies 
can pass the test by artificially augmenting their response to 
the control question. When asked whether he violated a traffic 
law, a spy need only lightly bite his tongue or commence mental 
arithmetic exercises to pass this test. Polygraph operators 
have no way of detecting the use of these countermeasures, and 
detailed instructions regarding how to employ them can be found 
in libraries and on the Internet, for instance, at the website 
antipolygraph.org. Someone who is clever enough to be a spy 
should be clever enough to learn these simple techniques to 
beat a polygraph.
    For an innocent person to pass, he must be more worried 
about answering a question about a traffic violation than about 
espionage. However, it is obvious to everyone which of these 
two questions is most important. Even though innocent, being 
asked about espionage is likely to be upsetting because your 
patriotism is being challenged and because your response to 
this question determines your future employment. The 
consequences of being physiologically aroused to a question 
about espionage are grave, even for innocent people. That is 
why they would be expected to fail polygraph tests in large 
numbers when the tests are scored in the standard way.
    In fact, the best studies of polygraph tests using real 
life cases and published in top scientific journals find that 
innocent people fare little better than chance on these tests, 
with 40 percent or more failing on average. This explains why 
large numbers of FBI applicants fail pre-employment polygraph 
exams, even after they have been judged to satisfy most of the 
FBI qualifications to be an agent.
    Surprisingly, however, when polygraphs are given to those 
already employed by the government, almost all of whom can be 
presumed to be innocent, very few individuals fail. This 
outcome is obtained because examiners understand that failing 
more than a handful of those with security clearances would be 
embarrassing to themselves and have potentially catastrophic 
consequences for government programs that depend upon having a 
stable, expertly trained workforce. In other words, post-
employment polygraphs are not scored following standard 
procedures. Examiners make subjective judgments that find few 
workers deceptive.
    In the absence of a scientific basis for their program, the 
government has turned to other arguments to justify polygraphs, 
claiming they have utility because they generate important 
admissions from employees. This argument has not been supported 
by data. Sworn statements of significant wrongdoing, firings, 
arrests, convictions, and list of spies uncovered as a result 
of polygraph tests have not been forthcoming.
    The government also argues polygraphs have a deterrent 
effect, a claim with no empirical support that is certainly 
unlikely to be true as employees learn that virtually no one 
fails polygraphs.
    At their invitation, I recently met with scientists at Los 
Alamos National Laboratory. I found them very concerned about 
protecting nuclear secrets. However, these scientists do not 
believe polygraph testing will accomplish this objective. They 
are worried because valued senior staff are retiring early and 
talented young prospects are turning away from lab employment 
rather than subject their careers and integrity to the 
polygraph equivalent of Russian roulette.
    To conclude, polygraphs are unlikely to catch spies and are 
likely to have deleterious effects on the recruitment and 
retention of the best employees. To the extent that their value 
derives from admissions made during testing, these admissions 
will only be forthcoming if examinees believe the tests work. 
The success of the government program thus depends on examinees 
being ignorant of the procedure, an unsafe assumption, 
especially when those tested are the kinds of smart people we 
want as intelligence officers and weapons scientists. Even if 
polygraph testing were as accurate as the government claims, 
long-term harm to national security may outweigh any benefits. 
Thank you.
    Chairman Hatch. Thank you, Mr. Iacono.
    [The prepared statement and attachment of Mr. Iacono 
follow:]

 Statement of William G. Iacono, Professor, Department of Psychology, 
            University of Minnesota, Minneapolis, Minnesota

    Mr. Chairman, members of the Judiciary Committee, I want to thank 
you for having me here to testify on this matter of great importance to 
our country's security.
    I wish to begin by making clear that there is no distinctive lie 
response. Polygraph operators try to determine if someone is lying by 
comparing responses to Relevant vs. ``control'' or comparison 
questions. Relevant questions deal with issues related to being a 
traitor to your country while the control questions deal with possible 
misdeeds from your past. For example, the physiological response to the 
relevant question ``Have you committed espionage?'' is compared to the 
response elicited by the control question ``Did you ever violate a 
traffic law?'' Both questions are answered ``no.'' These tests are 
based on the idea that spies will be more physiologically aroused by 
the espionage question. But scientific research suggests that 
sophisticated criminals or spies can pass the test by artificially 
augmenting their response to the control question. When asked whether 
he violated a traffic law, a spy need only curl his toes inside his 
shoe, lightly bite his tongue, or commence mental arithmetic exercises 
to pass this test. Polygraph operators have no way of detecting the use 
of these countermeasures, and detailed instructions regarding how to 
employ them can be found in libraries and on the internet. Someone who 
is clever enough to be a spy should be clever enough to learn these 
simple techniques to beat a polygraph.
    For an innocent person to pass, he must be more worried about 
answering a question about a traffic violation than about espionage. 
However, it is obvious to everyone which of these two questions is more 
important. Even though innocent, being asked about espionage is likely 
to be upsetting because your patriotism is being challenged and because 
your response to this question determines your future employment. The 
consequences of being physiologically aroused to a question about 
espionage are grave even for innocent people; that is why they would be 
expected to fail polygraph tests in large numbers when the tests are 
scored in the standard way. In fact, the best studies of polygraph 
tests, using real-life cases and published in top scientific journals, 
find that innocent people fare little better than chance on these 
tests, with 40% or more failing on average.
    This explains why large numbers of FBI applicants fail pre-
employment polygraph exams even after they have been judged to satisfy 
most of the FBI qualifications to be an agent. Surprisingly, however, 
when polygraphs are given to those already employed by the government, 
almost all of whom can be presumed to be innocent, very few individuals 
fail. This outcome is obtained because examiners understand that 
failing more than a handful of those with security clearances would be 
embarrassing to themselves and have potentially catastrophic 
consequences for government programs that depend on having a stable, 
expertly trained work force. In other words, post-employment polygraphs 
are not scored following standard procedures; examiners make subjective 
judgments that find few workers deceptive.
    In the absence of a scientific basis for their program, the 
government has turned to other arguments to justify polygraphs, 
claiming they have utility because they generate important admissions 
from examinees. This argument has not been supported by data. Sworn 
statements of significant wrongdoing, firings, arrests, convictions, 
and lists of spies uncovered as a result of polygraph tests have not 
been forthcoming. The government also argues polygraphs have a 
deterrent effect, a claim with no empirical support that is certainly 
unlikely to be true as employees learn virtually no one fails 
polygraphs.
    At their invitation, I recently met with scientists at Los Alamos 
National Laboratory. I found them very concerned about protecting 
nuclear secrets. However, these scientists do not believe polygraph 
testing will accomplish this objective. They are worried because valued 
senior staff are retiring early and talented young prospects are 
turning away from lab employment rather than subject their careers and 
integrity to the polygraph equivalent of Russian roulette.
    To conclude, polygraphs are unlikely to catch spies and are likely 
to have deleterious effects on the recruitment and retention of the 
best employees. To the extent that their value derives from admissions 
made during testing, these admissions will only be forthcoming if 
examinees believe the tests work. The success of the government program 
thus depends on examinees being ignorant of the procedure, an unsafe 
assumption, especially when those tested are the kinds of smart people 
we want as intelligence officers and weapons scientists. Even if 
polygraph testing were as accurate as the government claims, long-term 
harm to national security may outweigh any benefits. Thank you.

          Addendum to Oral Statement of William G. Iacono \1\

      Polygraph Screening of Federal Employees and Job Applicants
                      national security screening
    In view of the federal Employee Polygraph Protection Act of 1988 
(29 US Code, Chapter 22), which prohibits requiring employees or job 
applicants in the private sector to submit to polygraph testing, it is 
ironic that the federal government is the principal employer of 
polygraph examiners. Applicants for positions with the FBI, CIA, NSA, 
Secret Service, and similar agencies are required to undergo lie 
detector tests intended to supplement or substitute for background 
investigations. Current employees of some of these agencies, military 
personnel who hold high security clearances, and civil employees of 
defense contractors doing classified work may be required to undergo 
periodic tests for screening purposes. The Department of Defense 
conducted some 17,970 such tests in 1993.\2\ Most of these tests are 
referred to as counterintelligence scope polygraph tests by the 
government
---------------------------------------------------------------------------
    \1\ Distinguished McKnight University Professor, Professor of 
Psychology, Law, and Neuroscience, University of Minnesota, Director, 
Clinical Science and Psychopathology Research Training Program, 
recipient of the American Psychological Association's Distinguished 
Scientific Award for an Early Career Contribution to Psychology, the 
Society for Psychophysiological Research's Distinguished Scientific 
Award for an Early Career Contribution to Psychophysiology, Past-
President of the Society for Psychophysiological Research (1996-97) and 
former Member, Department of Defense Polygraph Institute's Curriculum 
and Research Guidance Committee. This addendum was adapted from W.G. 
Iacono and D.T. Lykken, ``The scientific status of research on 
polygraph techniques: The case against polygraph tests'' in D. Faigman 
et al. (Eds.), Modern Scientific Evidence: The Law and Science of 
Expert Testimony (second edition; in press). St. Paul, MN: West 
Publishing.
    \2\ Department of Defense Polygraph Institute, A Comparison of 
Psychophysiological Detection of Deception Accuracy Rates Obtained 
Using the Counterintelligence Scope Polygraph and the Test for 
Espionage and Sabotage question Formats. 26 Polygraph, 79-106 (1997), 
at 80. (hereafter DoDPI Study 1.)
---------------------------------------------------------------------------
    As a consequence of Public Law 106-65 (S. 1059) passed as part of 
the National Defense Authorization Act of 2000, potentially thousands 
of scientists and security personnel employed at U.S. weapons labs at 
Lawrence Livermore, Sandia, or Los Alamos must submit to polygraph 
tests as part of an effort to improve nuclear security. A relatively 
new procedure, the Test for Espionage and Sabotage (TES), or a nearly 
identical variant of this procedure, the Test for Espionage, Sabotage, 
and Terrorism (TEST), is used.
    As outlined in the recently promulgated Department of Energy (DOE) 
Rule 709 \3\ these counterintelligence polygraph examinations are to be 
limited to coverage of six topics:
---------------------------------------------------------------------------
    \3\ Part 709 ``Polygraph Examination Regulations"' in Chapter III 
of Title 10 of the Code of Federal Regulations.
---------------------------------------------------------------------------
1) espionage,
2) sabotage,
3) terrorism,
4) intentional unauthorized disclosure of classified information,
5) intentional unauthorized foreign contacts, and
6) deliberate damage or malicious use of a U.S. government or defense 
        system.
    Rule 709 has a number of interesting features that are similar to 
those governing the use of polygraph tests by other federal agencies 
and that are likely to stimulate law suits.\4\ These include the 
following:
---------------------------------------------------------------------------
    \4\ In anticipation of the DOE regulations, attorneys representing 
government employees and employee prospects have indicated a desire to 
sue the government based on adverse employee decisions made as a result 
of polygraph examinations.
---------------------------------------------------------------------------
 Prospective employees of the DOE or its contractors who refuse 
        to take a polygraph cannot be hired and incumbent employees 
        must be denied access to secret information.
 Using the results of a polygraph test as an ``investigative 
        lead'' can result in an administrative decision that denies or 
        revokes an employee's access to classified-information and may 
        lead DOE to ``reassign the individual or realign the 
        individual's duties within the local commuting area or take 
        other actions consistent with the denial of access.''
 These tests will be conducted at least every five years and 
        also on an aperiodic basis.
 Public comment on the proposed regulations revealed widespread 
        opinion that ``that polygraph examinations have no theoretical 
        foundation or validity.'' DOE decided, however, that ``as a 
        matter of law,'' the agency is mandated to conduct polygraph 
        examinations, and ``is no longer free to act favorably on 
        comments arguing against establishment of a counterintelligence 
        scope polygraph examination program because of information and 
        claims about deficiencies in polygraph reliability.''
    The TES \5\ includes four irrelevant questions (e.g., ``Do you 
sometimes drink water?'' ``Is today ______? '') and the following four 
relevant questions: ``Have you committed espionage?'' ``Have you given 
classified information to any unauthorized person?'' ``Have you failed 
to notify, as required, any contact with citizens of sensitive 
countries including China?'' ``Have you been involved in sabotage?'' 
The responses to the relevant questions are compared to the responses 
to four ``directed lie'' questions that serve as ``controls'' or 
comparisons by providing an example of a response to a known lie. The 
directed lies are questions that both the examiner and the examinee 
know will be answered falsely. These four questions are chosen from a 
list of acceptable alternatives, but may include any of the following, 
which the examinee is directed to answer ``No'': ``Did you ever violate 
a traffic law?'' ``Did you ever say something that you later 
regretted?'' ``Did you ever lie to a co-worker about anything at all?'' 
Examinees who show greater autonomic disturbance following the 
questions about espionage and sabotage, than they show following these 
directed lies, are classified as deceptive.
---------------------------------------------------------------------------
    \5\ Because the government has published information only on the 
TES, we will refer to this procedure in the remainder of this section.
---------------------------------------------------------------------------
    The field validity of counterintelligence scope polygraph 
examinations, including the TES, is unknown. However, the Department of 
Defense Polygraph Institute (DoDPI) has reported two laboratory studies 
of the validity of the TES.\6\ These both employed paid volunteers, 115 
of whom were innocent while 60 others were each required to enact 
simulated acts of espionage or sabotage. Of the innocent subjects, 14 
or 12.5% responded in the deceptive direction. Of the ``guilty'' 
subjects, 10 or 17% were misclassified as innocent.
---------------------------------------------------------------------------
    \6\ DoDPI Study 1, supra note 33; and Department of Defense 
Polygraph Institute, Psychophysiological Detection of Deception 
Accuracy Rates Obtained using the Test for Espionage and Sabotage. 27 
Polygraph, 68-73 (1998). Because inconclusive polygraph tests are 
typically repeated until they yield a conclusive verdict, inconclusive 
outcomes are not included in the calculation of accuracy rates in this 
study.
---------------------------------------------------------------------------
    It is obviously likely that innocent scientists or other persons 
with high security clearances would be more disturbed by the TES 
relevant questions asked during an official screening test than were 
these volunteers for whom the test carried no threat to their 
reputations or careers.\7\ The disturbance produced by the directed-lie 
questions, on the other hand, might be expected to be no greater in 
real-life than in simulated conditions of testing. Therefore, when 
innocent, loyal government employees with top secret classifications 
are subjected to the TES, one might expect many more to be classified 
as deceptive than the 12.5% suggested by the DoDPI studies. The actual 
rate of falsepositive diagnoses is probably close to the 43% level 
indicated by the real-life studies referred to in footnote 7.
---------------------------------------------------------------------------
    \7\ Field studies based on actual espionage cases are needed to 
determine how the TES works in real life when innocent persons 
reputations and careers are on the line. Such studies do not exist. 
However, there are studies of the accuracy of real life criminal 
polygraph tests that have been published in top journals such as Nature 
and the Journal of Applied Psychology. These journals routinely reject 
over 85% of submitted articles. The studies published in these journals 
indicate that approximately 43% of innocent subjects fail the polygraph 
when the decision is based on physiological responses to relevant and 
control questions. (for more details, see W.G. Iacono and D.T. Lykken, 
The Case Against Polygraph Tests in D. Faigman et al., Modern 
Scientific Evidence: The Law and Science of Expert Testimony. St. Paul, 
MN: West Publishing, 1997).
---------------------------------------------------------------------------
    When DOE scientists are subjected to the planned TES (or TEST), 
these data indicate that large numbers of innocent employees would be 
classified as deceptive if the test scores were relied upon. DOE's 
polygraph examiners avoid any such disastrous result because they know 
that the base rate of spying (the proportion likely to be spies) among 
such a highly screened and dedicated group is likely to be tiny. 
Consequently, they cannot fail 43% or even 12.5% of scientists without 
undermining their own credibility, creating a personnel management 
nightmare, and wreaking havoc on employee morale.
    Therefore, subjects who are more troubled by ``Have you committed 
espionage?'' than by ``Did you ever say something that you later 
regretted?'' are invited by the examiner to explain why they might have 
responded in this way. If the respondent's answer and demeanor satisfy 
the examiner, his ``fail'' is converted to a ``pass.'' Thus, by 
permitting the polygraph operator to be the ultimate arbiter, relying 
on whatever clinical skills or intuitions s/he may (or may not) 
possess, the frequency of false-positive diagnoses is kept to a low 
value. Nevertheless, if as few as 2% of the 10,000 workers potentially 
covered by Rule 709 receive final diagnoses of ``deception indicated,'' 
200 highly trained but probably innocent scientists would be implicated 
as spies in the first round of testing.\8\
---------------------------------------------------------------------------
    \8\ The Department of Defense Polygraph Program report to Congress 
for Fiscal year 2000 illustrates how polygraphers adjust the outcomes 
of their tests to minimize failing anyone [Department of defense 
Polygraph Program Annual report to Congress, Fiscal Year 2000, Office 
of the Assistant Secretary of Defense (2000); available at http://
www.fas.org/sgp/othergov/polygraph/dod-2000.html]. For fiscal year 
2000, 7,688 individuals were given counterintelligence scope polygraph 
tests but demonstrated ``no significant physiological response to the 
relevant questions and provided no substantive information.'' In other 
words, some undetermined number provided a substantial physiological 
response but passed because they did not make incriminating 
revelations. An additional 202 individuals produced significant 
physiological reactions and provided ``substantive information.'' Of 
these, 194 received ``favorable adjudication'' with the remaining 8 
cases still pending decisions, with no one receiving ``adverse action 
denying or withholding access'' to classified information. These data 
confirm that the government goes to extreme lengths to ensure no one 
fails these tests, but the also demonstrate that the tests have no 
utility.
---------------------------------------------------------------------------
    Although the controversy surrounding the DOE polygraph screening 
program has been focused on the high likelihood that innocent 
individuals will be judged to be spies, there is little evidence that 
the program will actually catch spies. The laboratory studies of the 
TES, which reported only 83% accuracy in identifying persons ``guilty'' 
of committing mock-espionage, overestimate accuracy for the real-life 
guilty in two important ways.
    First, consistent with real life screening test practices that help 
to keep the number failing these tests low, these studies did not 
conclude that deceptive polygraph tests were in fact failed if, during 
a post-test interview, an examinee offered information that reasonably 
justified why the test might be a false positive outcome. However, the 
design of the studies allowed only innocent test subjects this 
opportunity to ``talk their way out of'' a failed test because guilty 
people were instructed to confess as soon as the examiner confronted 
them with their deceptive test results. We do not know how many guilty 
individuals would have been mistakenly judged ``false positives'' had 
they been allowed to try to ``explain away'' the outcome of their 
examinations.
    Second, these DoDPI studies did not account for the likelihood that 
real spies would use countermeasures to defeat the TES.\9\ DOE 
scientists are not simpletons: if one or two are in fact spies, surely 
both they and their foreign handlers would have sense enough to be 
prepared to bite their tongues after each directed-lie question. Thus 
it is to be expected that the only weapons-lab scientists, with their 
highly specialized skills, who fail the projected DOE polygraph 
screens, will be truthful, honorable people who cannot offer a 
plausible excuse for failing their polygraphs. The most likely result 
of Rule 709 will be their ruined reputations and the government's loss 
of skilled, dedicated employees.
---------------------------------------------------------------------------
    \9\ Honts et al. have shown that 50% or more of guilty subjects in 
laboratory studies can defeat a polygraph test by engaging in 
countermeasures such as lightly biting the tongue, curling toes inside 
one's shoes, or doing mental arithmetic when control questions are 
asked. Skilled examiners could not determine when countermeasures were 
being used. Charles R. Honts et al., Effects of Physical 
Countermeasures on the Physiological Detection of Deception, 70 J. 
Applied Psychol. 177, 177-187 (1985); Charles R. Honts et al., Mental 
and Physical Countermeasures Reduce the Accuracy of Polygraph Tests, 79 
J. Applied Psychol. 252, 252-259 (1994).
---------------------------------------------------------------------------
    Besides the facts that these tests are not justified on scientific 
grounds and that they are clearly biased against truthful employees, 
there is no evidence that personnel screening tests have any true 
utility.\10\ No spy has ever been uncovered because of a failed 
polygraph test. Although the government has argued that the admissions 
individuals make when undergoing these tests provide valuable 
information, there is no evidence documenting that vital or even 
important information has been uncovered as a result of polygraph 
tests. It is possible that employee screening has a deterrent effect in 
that knowledge that one must pass such tests may discourage would be 
spies from seeking employment, and it may discourage the currently 
employed from entertaining thoughts about becoming a spy. However, 
there is no evidence to support such an assertion. Given the ease with 
which individuals can learn to defeat these tests coupled with the fact 
that almost no one is judged to have failed them,\11\ it is unlikely 
that they have any serious deterrent effect.
---------------------------------------------------------------------------
    \10\ In the Clinton Administration's Joint Security Commission 
Report [``Redefining Security,'' A Report to the Secretary of Defense 
and the Director of Central Intelligence, February 28, 1994, Joint 
Security Commission, Washington, D.C. 20505 ; available at http://
www.fas.org/sgp/libra/i?dex.html], it is noted that ``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.''
    \11\ See footnote 8 summarizing the DoD Fiscal year 2000 report.
---------------------------------------------------------------------------
    Opinions of DOE National Laboratory Senior Scientists Regarding 
                           Employee Screening
    Concerned that national laboratory employees must submit to 
periodic lie detector tests, a panel of the more senior national 
laboratory scientists and engineers undertook a detailed appraisal of 
the existing literature relating to the nature and validity of 
polygraph screening methods. Sandia's Senior Scientists and Engineers 
(``Seniors '') provide a service to the Laboratories as independent, 
experienced, corporate evaluators of technical issues. They are 
available as a group to assist Sandia management with technical reviews 
of particularly significant issues and programs. Implementation uses 
subpanels of the Seniors (helped as necessary by other Sandia staff) to 
conduct the initial, detailed review of issues or programs. The reports 
of the subpanels are then made available for review by all other 
Seniors prior to submission to management. The report of the subpanel 
studying polygraphs and security at Sandia was circulated in the fall 
of 1999.\12\
---------------------------------------------------------------------------
    \12\ Polygraphs and Security, A study by a Subpanel of Sandia's 
Senior Scientists and Engineers, October 21, 1999, Sandia, NM; 
available at http://www.fas.org/sqp/othergov/polVqraph/sandia.htmi.
---------------------------------------------------------------------------
    These Seniors, whose expertise is in physics, chemistry, and/or 
mathematics, do not pretend to be psychologists, psych ophysiologists, 
or psychometricians. But they do know how to read research reports and 
to evaluate statistical evidence and probabilities. In their Executive 
Summary, they concluded that
1) There were no adequate studies to support polygraph screening
2) It is impossible to predict what error rates to expect
3) Polygraph testing could drive away existing innocent, talented 
        workers who have provided value to national security programs, 
        and it would deter prospective, talented employment candidates 
        from considering a career in the national laboratories
4) Because few spies are likely to be detected, real subversives may be 
        more likely to become insidersparticularly if over-reliance on 
        polygraph testing leads to reduced emphasis on other security 
        and counterintelligence methods.
                               conclusion
    Personnel screening cannot be scientifically justified. If the 
polygraph charts obtained from security screening tests were scored 
objectively, large numbers of innocent employees would be expected to 
fail. They do not because the tests are scored subjectively, with few 
failing. Claims that these tests have deterrent value are not supported 
and are unlikely to be true as government employees learn that 
virtually no one fails these tests (see footnote 8). Claims that they 
have utility due to admissions made during testing are not supported by 
empirical evidence (again, see footnote 8). There is no evidence they 
catch spies, and it is likely that spies can learn to use 
countermeasures to defeat them. When bright, talented government 
workers and employee prospects come face to face with the requirement 
that now or in the future they will have to pass repeatedly a test that 
is the equivalent of playing Russian roulette with their careers, they 
are likely to opt for other careers. Over the long term, employee 
morale is likely to suffer, as will the nation's national defense as 
the best and brightest employees are lost to government employment.

    Chairman Hatch. Mr. Smith?

  STATEMENT OF JEFFREY H. SMITH, PARTNER, ARNOLD AND PORTER, 
                        WASHINGTON, D.C.

    Mr. Smith. Mr. Chairman, it is good to be back up in the 
Senate this morning and I commend you and the Committee for 
taking up this extremely important issue.
    The arrest of Robert Hanssen proved once again that no 
government is immune from espionage or treachery. The arrest of 
Aldrich Ames sent a shockwave through the CIA. The arrest of 
Robert Hanssen did the same to the Bureau. It is important, I 
think, to learn the right lessons from the Ames and Hanssen 
cases and not the wrong ones.
    I have been privileged over the years to look at these 
issues a number of times as Chairman of the Joint Security 
Commission, as Chairman of the special panel that looked at 
what went wrong with the Ames case at the CIA, as General 
Counsel of the CIA, and again more recently for Director Tenet. 
All of these reviews point to the importance of a thoroughly 
professional counterintelligence service and one cannot, and I 
know this Committee will not, examine the polygraph solely by 
itself without looking at the broader issues of our 
counterintelligence programs.
    The key to any intelligence officer is integrity. The first 
responsibility of an intelligence officer is to, obviously, 
prevent Pearl Harbors, and key to that, key to analysis, key to 
operations, is always integrity. And how one maintains 
integrity of an intelligence officer in a world that is 
shrouded in deception and steeped in secrecy is a very 
difficult issue. The job of a counterintelligence officer is to 
try to find an intelligence officer before he or she loses 
their moral bearings and engages in espionage. A polygraph can 
be an important tool in that, but it is by no means the only 
answer.
    As my colleague, Dr. Iacono, pointed out, polygraph is not 
perfect. Innocent people have failed them and guilty people 
have passed them. As the Senate Select Committee on 
Intelligence report on Mr. Ames, he passed two polygraph exams 
while he was actively conducting espionage for the Soviet 
Union. At the same time, the polygraph has produced important 
results and many of those are classified. Some, we might be 
able to talk about this morning. But it is certainly true that 
the polygraph has resulted in important admissions and 
disclosures directly related to intelligence activities as well 
as ordinary crime.
    In my view, there are three key elements that any polygraph 
program must have. First, the examiner must be a trained and 
experienced investigator with a long-term career opportunity at 
his or her employment agency. It should not be a dead-end job. 
Second, the agency must have procedures that will vigorously 
protect the rights and dignity of all employees. And third, no 
adverse personnel action should be taken solely on the basis of 
a polygraph examination.
    The FBI is now under pressure to make greater use of the 
polygraph. If it chooses to do so, it must do so wisely. Many 
of the reforms made in the wake of the Ames case improved 
counterintelligence efforts. Chief among these was greater 
cooperation with the CIA and the FBI.
    Other changes had a dark side. According to reports in the 
Washington Post, the FBI and the CIA reviewed the polygraph 
records of a large number of CIA employees and identified many 
who seemed to have problems. Under procedures required by law 
adopted in 1994, those cases were referred to the FBI, which 
subsequently opened criminal investigations. In some cases, the 
CIA identified and dealt with serious problems. Other cases 
revealed nothing more than a significant physiological response 
to a polygraph question. Many of these cases languished for 
long periods at the FBI before finally being returned to the 
CIA, where the officer could at last resume his or her career. 
More recently, CIA has implemented procedures to protect 
careers while these investigations proceed, but I remain 
concerned that we are still taking actions against individuals 
based solely on, in the absence of corroborating evidence, 
solely on significant physiological response to a focused 
counterintelligence question.
    If we are going to use the polygraph, Mr. Chairman, we have 
to use it right. If we had never begun to use the polygraph, a 
strong case could be made that we should not now start. But we 
are doing it and we have to use it using procedures that 
adequately balance the rights of the individual against the 
rights and the need to protect national security information. 
Thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Mr. Smith.
    [The prepared statement of Mr. Smith follows:]

  Statement of Jeffrey H. Smith \1\, Arnold and Porter, Washington, DC

    Mr. Chairman, it is a pleasure to appear before the Committee this 
morning, and I commend you for convening a hearing on this extremely 
important subject.
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    \1\ Partner, Arnold & Porter, Washington, DC. Former General 
Counsel, CIA, and former General Counsel, Senate Armed Services 
Committee.
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    The arrest of Robert Hanssen proved, once again, that no 
organization of this government is immune from espionage or treachery. 
Seven years ago, the arrest of Aldrich Ames sent a shock wave through 
the CIA. The recent arrest of Hanssen has done the same to the Bureau. 
Despite the pressure we all feel to respond quickly in order to prevent 
future counterintelligence breaches, it is important for us to learn 
the right lessons from both the Ames and Hanssen cases. In this regard, 
I commend you, Mr. Chairman, Senator Specter and the other members of 
this Committee for the leadership you are showing with respect to 
counterintelligence matters and for your desire to explore the complex 
policy and technical issues related to the use of the polygraph for 
counterintelligence purposes.
    I was privileged to serve as Chairman of the Joint Security 
Commission created by then-Secretary of Defense Les Aspen and Director 
of Central Intelligence Jim Woolsey in 1993 and 1994 to look at the 
security procedures of the government. Our final report made many 
recommendations, including several focused on counterintelligence and 
the polygraph. When Ames was arrested, Director Woolsey asked me to 
chair a special panel that looked at what went wrong in the Ames case. 
For that purpose, former Secretary of Defense Harold Brown and former 
National Security Adviser General Brent Scowcroft joined our 
Commission. Our review, as well as others in the Executive Branch and 
Congress, led to a number of important changes. I believe these efforts 
have produced marked improvement in counterintelligence. Probably the 
most important change was vastly better cooperation between the FBI and 
CIA. But the Hanssen case shows how far we still have to go.
    Our intelligence agencies are our first line of defense--our early 
warning system. Their most important job, at the end of the day, is to 
ensure there are no more Pearl Harbors. They must also provide 
unvarnished analysis to the President, Congress and other policymakers. 
It is imperative that their analysis be unaffected by policy 
considerations. On occasion, they are also required to carry out 
dangerous covert actions to achieve a national objective.
    In all roles--collection, analysis, and operations--the integrity 
of the individual officer is the single most important quality he or 
she must possess. Officers must maintain that integrity in a world of 
secrecy and deception. Secrecy and deception are integral aspects of 
intelligence and counterintelligence activities. It is absolutely 
imperative for intelligence officers, whether they be at the CIA, in 
the military services, or at the FBI, to maintain their ethical and 
moral bearings so that they can be scrupulously honest when dealing 
with their colleagues, conducting their analysis, and engaging in 
operations. In all professions integrity is important, but in few 
professions is integrity more critical than in the fields of 
intelligence and law enforcement. When an officer fails to maintain his 
or her integrity or loses his or her bearings, the consequences can be 
disastrous--as happened with Aldrich Ames and Robert Hanssen.
    Counterintelligence must identify officers who fail to maintain 
integrity or who have lost their bearings before they cause disastrous 
consequences. Counterintelligence is very hard work in any society--and 
it is especially hard work in a democratic society. We are an open 
society and correctly pride ourselves on being a trusting people. We 
have a healthy suspicion of authority, and we are leery of secrecy and 
uncomfortable with deception.
    The need for integrity points to a related, and I believe, critical 
point. We live in the Digital Age, in which information technology is 
diffusing into all areas of our public and private lives. Yet 
technology, by itself, cannot deliver security. At the end of the day, 
counterintelligence is all about people.
    As you have observed, Mr. Chairman, we cannot consider the use of 
the polygraph without an appreciation of the larger context of how we 
are organized to conduct counterintelligence and recruit people to do 
counterintelligence.
    Mr. Chairman, I fear that the United States has not adequately 
recruited, promoted, and rewarded the very best counterintelligence 
officers. Too often, counterintelligence and security officers are not 
widely admired within their organizations. I wonder, for example, how 
many graduate students in Russian studies at our top universities are 
approached by the CIA and FBI. In contrast, the British 
counterintelligence agency, MI5, recruits heavily at Britain's best 
universities. We should be doing the same. Our intelligence agencies 
are hampered by the low government salaries and, in some instances, by 
the academic community's general skepticism toward the intelligence 
community stemming from our country's experience in the 1960s and 
1970s. But counterintelligence is inherently fascinating and, in my 
view, the CIA, the FBI, and the military services should be seeking to 
recruit counterintelligence officers at the very best universities in 
the country.
    Even when our intelligence agencies succeed in recruiting the best 
and the brightest, many of them do not pursue a position in 
counterintelligence. The CIA has been successful in recruiting some of 
our top graduate students of Russian affairs to become analysts of 
Russia, but it is much harder to persuade them to become 
counterintelligence or security officers.
    We pay a grave price for this. In my experience, 
counterintelligence work is some of the most important work available 
in government. We need government leadership at the highest levels to 
strengthen our counterintelligence services.
    As this Committee knows, Director Freeh and Director Tenet have 
recently announced a number of significant changes in the 
counterintelligence organization and policies of our government. Those 
changes, known as ``CI-21,'' for ``Counterintelligence in the 21'' 
Century,'' are a dramatic improvement and should be of great benefit. 
But the key remains people.
    Having described the counterintelligence landscape, let me now turn 
to the specific issue before us today: the polygraph.
    At the outset, let me say that the polygraph is only one tool 
available to American counterintelligence. It must be considered along 
with all the other measures we take to protect ourselves and our 
secrets. Many elements contribute to a strong and effective 
counterintelligence program, beginning--as I have discussed--with the 
quality of our personnel and extending through a determined effort to 
penetrate the intelligence services of our adversaries.
    The polygraph is a simple instrument measuring certain 
physiological responses following a set of questions asked by an 
examiner. The basic theory is that when a person knowingly lies, he or 
she will have a measurable physiological response--for example, a 
change in breathing, heart rate and galvanic skin reaction.
    However, the polygraph is not perfect. Honest people have 
``failed'' polygraph examinations while dishonest people have 
``passed'' them. The polygraph is intrusive and may be abused. If 
misused, the polygraph can cause morale to deteriorate and ruin the 
careers of innocent people. Perhaps most importantly, it can lead to 
overconfidence--as it did at the CIA before the arrest of Ames.
    A well-administered polygraph program must contain several 
important safeguards:
    First, the examiner must be a trained and experienced investigator 
with long-term career opportunities at his or her employing agency.
    Second, the agency must have procedures that will vigorously 
protect the rights and dignity of all employees.
    Third, no adverse personnel action should be taken solely on the 
basis of the results of a polygraph examination.
    The FBI is now under pressure to make greater use of the polygraph. 
If it chooses to use the polygraph, it must do so wisely. The polygraph 
is only one tool in an effective counterintelligence program. Many in 
the CIA felt that there could never be a spy at the Agency, in large 
part because the officers were routinely polygraphed, even before the 
Ames incident. Unfortunately, they were wrong.
    No amount of technology can substitute for strong management that 
is alert to individuals who are behaving in a way that suggests the 
need for investigation. With respect to Ames, his alcoholism and poor 
performance should have been a red flag for management to pay close 
attention. The CIA has now instituted management practices to pick up 
on such signals.
    Many of the reforms made in the wake of the Ames case improved 
counterintelligence efforts. Chief among these was greater cooperation 
between the CIA and FBI--and a recognition that the CIA was not immune 
to having a spy in its midst.
    Other changes, however, had a dark side. According to reports in 
the Washington Post, the FBI and CIA reviewed the polygraph records of 
a large number of CIA employees and identified many who seemed to have 
problems. Under procedures required by a law adopted in 12994, those 
cases were referred to the FBI, which subsequently opened criminal 
investigations. In some cases, the CIA identified and dealt with 
serious problems. Other cases revealed nothing more than a 
``significant physiological response'' to a polygraph question. Many of 
these cases languished for long periods at the FBI before finally being 
returned to the CIA, where the officer could at last resume his or her 
career. More recently, the CIA has implemented procedures to protect 
careers while investigations proceed. This is an example of the kind of 
sophisticated policy that is needed to balance the rights of 
individuals against the need to protect national security.
    In deciding whether to expand the use of the polygraph, we should 
also note that the number of people with knowledge of sensitive 
counterintelligence investigations goes far beyond the CIA and FBI. 
Justice Department lawyers, officials at other agencies, military 
officers, and White House/National Security Council staff often have 
access to highly classified information. As this Committee knows, 
certain Members of Congress and the senior staff of the intelligence 
oversight committees are, by law, kept ``fully and currently informed'' 
of sensitive matters as well. Are we prepared to polygraph these 
persons as well?
    If we had never begun to use the polygraph, a strong case could be 
made that we should now start. But we already are using it, and it has 
proven to be a very valuable tool. It has directly led to valuable 
information in many investigations--in cases involving both applicants 
for employment and current employees. It is also a significant 
deterrent.
    But much work still lies ahead. Agencies must constantly struggle 
to find the right balance between the rights of individual citizens and 
the needs of national security. Further research must be done to 
improve the instrument and techniques employed. For example, I am 
encouraged by research into computerized polygraphs that would 
eliminate much of the subjective aspect of ``interpreting'' the 
results.
    The polygraph is an effective tool in the effort to preserve our 
security, but it has a cost. Our goal must be to make that cost--in 
terms of innocent lives harmed--zero. To achieve that goal, we should 
make sure that our management practices and personnel policies are 
geared toward attaining the highest level of counterintelligence.
    Thank you, Mr. Chairman. I look forward to answering any questions 
that you and the Committee may have.

    Chairman Hatch. Mr. Zaid?

  STATEMENT OF MARK S. ZAID, ESQ., COUNSEL, LOBEL, NOVINS AND 
                    LAMONT, WASHINGTON, D.C.

    Mr. Zaid. Thank you, Mr. Chairman. Distinguished members of 
the Committee, I appreciate the opportunity to appear before 
you. This is obviously an extremely important and timely topic 
in the wake of Agent Hanssen's arrest on espionage charges, but 
there's been a knee-jerk reaction that something more must be 
done to protect our National security interests. I agree with 
the sentiment, but the FBI has prematurely caved in to public 
pressure to expand its polygraph program in order to quell the 
flames of this more recent outcry. Yet, this will likely have 
the same effect as throwing gasoline on the embers of a dying 
fire.
    For the last 2 years, I have represented unsuccessful 
applicants for Federal employment who have fallen victim to 
polygraph policies. Two lawsuits are pending against the FBI, 
DEA, and Secret Service. I also routinely represent or advise 
Federal employees and contractors who run into problems of 
security matters, which oftentimes involves polygraphs.
    With my testimony, I wish to emphasize five key points. The 
Federal Government's use of polygraph examination is based more 
on a perception of insecurity on how best to address difficult 
security problems than one based on reason or logic. The policy 
has driven the science rather than the other way around. Each 
year, Federal agencies are accusing Americans falsely of crimes 
or of lying on various matters, and as many as 66 percent of 
those who are actually guilty of these acts go undetected.
    Second, most Federal polygraph examinations are screening 
tests for applicants or for routine reinvestigations of current 
employees, yet there are no known studies that support the 
validity of these types of tests. Even the government's own 
experts have condemned the use of screening tests.
    Third, there is a lack of standardization pertaining to the 
use of polygraph screening throughout the Federal Government. 
Depending upon the agency, polygraphers routinely have 
demonstrated abusive and threatening conduct which improperly 
stimulates a person's physiological responses, and there are 
very few, if any, legitimate avenues to seek redress against 
the polygraphers.
    Four, though Attorney General John Ashcroft recently 
admitted that the false positive rate is 15 percent, there is 
little or no due process accorded applicants for Federal 
employment who have fallen victim. An inconclusive or 
unfavorable finding automatically results in your job offer 
being rescinded and these results will be disseminated to other 
agencies. In addition to concerns of false positive results, 
current Federal employees are prone to be victimized by 
retaliatory polygraph exams, and an inconclusive or unfavorable 
result very often will lead to career-ending damage for that 
employee, even though no guilt has ever surfaced or evidenced.
    You'll often hear about the utility value. Nobody questions 
the utility value. People have confessed at polygraphs. The 
question is, is it the device that is doing it or the method of 
interrogation? I have got law enforcement clients who will tell 
me stories of how suspects will confess, persuaded to confess 
because of the use of a lie detector, but the lie detector was 
the police car antenna that some other officer honked the horn 
every time an answer was given and told the suspect they were 
lying, or a photocopying machine that had a piece of paper in 
it that said, ``you are lying'' once the print button was 
pushed.
    Let me briefly address two agencies where some major 
problems are at. Mr. Smith referenced some of the problems at 
the CIA. There are at least 300 employees who have been in 
polygraph limbo since the Ames case who have only shown 
significant physiological responses but no evidence of 
wrongdoing has ever emerged. The FBI has taken these cases, 
most of the times with contempt, because there is very little 
information to investigate. But during this time, these people 
are not promoted and they are never given overseas assignments, 
and for people, especially within the Directorate of 
Operations, that is a career-ender for those individuals.
    Sometime in 1997 or 1998, CIA polygraphers actually 
reported to the Justice Department's Public Integrity Section 
that they were instructed by CIA management to fail certain 
employees. They also revealed that they were taught how to 
sensitize examinees during pre-testing interviews so as to 
create the likelihood of false positives. As far as I know, 
these allegations have never been investigated.
    There is also evidence that the CIA uses polygraphs as a 
means of retaliation against employees who file EEO complaints 
or grievances. Within one to 2 months of filing these 
complaints, these individuals all of a sudden have an 
acceleration of their routine security investigations, 
sometimes one or 2 years in advance of when they are scheduled, 
and as we all know, usually, it is 5 years. Most of the time, 
it is seven or 8 years.
    The Secret Service has been the agency I have received the 
most complaints about. Their polygraphers have been abusive, 
hostile, arrogant, banged their fists on the table, slapped 
their thighs, and routinely yell or scream at examinees. They 
ask personal questions about marital infidelities and even 
sexual relations with animals.
    Some key points, as the time runs out: Most agencies fail 
to tape record or audiotape polygraphs. That would protect both 
the session and the examinee, one would think. There is 
evidence of bias of polygraphers that affects the test. Mr. 
Smith mentioned the Aldrich Ames case and the fact that he 
passed two exams, which shows there was not much in the way of 
deterrent value. In the 1980's, about 30 Cubans defected to the 
United States to the CIA. All passed polygraph examinations, 
and it was later found out that they were all double agents for 
the Cuban government.
    In closing, the late Senator Sam Irvin Jr. once stated that 
polygraph testing smacks of 20th century witchcraft. Dr. 
William Marsten, the Harvard psychologist who many consider to 
be the father of the modern polygraph, also created the popular 
comic book character Wonder Woman. It is no coincidence that 
her magic lasso requires those who feel its bind to tell the 
absolute truth. To discover if Robert Hanssens, other Robert 
Hanssens, exist within the Federal Government, we may as well 
put our faith in Wonder Woman's magic lasso as much as the 
polygraph. Thank you.
    Chairman Hatch. Thank you, Mr. Zaid.
    [The prepared statement and attachments of Mr. Zaid 
follow:]

     Statement of Mark S. Zaid, Esq.,\1\ Lobel, Novins and Lamont, 
                             Washington, DC

    Mr. Chairman, distinguished members of the Committee, thank you for 
the opportunity to appear before you and offer my comments on issues 
surrounding the federal government's use of polygraphs. I applaud the 
Committee's interest in this topic.
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    \1\ Of Counsel, Lobel, Novins & Lamont, 1275 K Street, N.W., Suite 
770, Washington, D.C. 20005. Tel. No. (202) 371-6626; Fax No. (202) 
371-6643; E-Mail: [email protected]. Mr. Zaid specializes in litigation 
and lobbying on matters relating to international transactions, torts 
and crimes, national security, foreign sovereign and diplomatic 
immunity, defamation, the First Amendment, and the Freedom of 
Information/Privacy Acts. Additionally, Mr. Zaid serves as the 
Executive Director of The James Madison Project, a non-profit 
organization with the objectives of reducing secrecy, promoting 
government accountability, and educating the public on national 
security matters. The views expressed by Mr. Zaid are his own and do 
not necessarily reflect the views of any organization or entity with 
which he is or has been affiliated.
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    This is, of course, an extremely important and timely topic. In the 
wake of the arrest of FBI Special Agent Robert Hanssen on espionage 
charges, there has been a knee-jerk reaction that something more must 
be done to better protect our national security interests. I fully 
agree with that sentiment. However, every time a spy is caught, or a 
lapse in security is detected, a public outcry for change erupts.\2\ 
And each time this occurs there are those who lobby to expand the use 
of polygraph examinations as the means by which to expose those who 
would betray our nation, steal our secrets or commit crimes while a 
federal employee. We must not react so quickly to these understandable 
concerns. Unfortunately, the FBI has already caved in to public 
pressure and expanded its polygraph testing in order to quell the 
flames of this more recent outcry. Yet, expanding polygraph use is more 
akin to throwing gasoline on the embers of a dying fire. Even when 
assuming the utility of the device, the polygraph machine causes far 
greater harm to our country than we derive a benefit.
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    \2\ For example, following the Walker family espionage cases in 
1985, Defense Secretary Caspar W. Weinberger appointed a commission to 
study the problem of protecting classified defense information against 
espionage. The commission recommended expanded use of the polygraph as 
a counterespionage tool. ``Defense Officials Urge Efforts to Counter 
Espionage'', Aviation Week and Space Technology, Dec. 2, 1985, at 24.
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    For nearly the last two years I have represented unsuccessful 
applicants for federal employment who have fallen victim to the 
government's polygraph policies. Presently, there are two lawsuits, 
which are the first of their kind, pending against the Federal Bureau 
of Investigation (``FBI''), the Drug Enforcement Administration and the 
United States Secret Service (``USSS'') that challenges their use of 
pre-employment polygraph examinations.\3\ I also routinely represent or 
advise current federal employees or government contractors within the 
law enforcement, military and intelligence communities who encounter 
difficulties in security matters, which oftentimes involves polygraph 
examinations.
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    \3\ See Croddy et al. v. FBI et al., Civil Action No. 00-0651 (Mar. 
15, 2000 D.D.C.)(EGS); John Doe #6 et al. v. FBI et al., Civil Action 
No. 00-2440 (Oct. 11, 2000 D.D.C.)(EGS). The defendants have filed 
Motions to Dismiss in both cases, and the parties are awaiting the 
scheduling of oral arguments or a decision from the Court. Copies of 
the pleadings in these cases can be found at the following websites: 
www.nopolygraph.com, www.stopolygraph.com and www.antipolygraph.org. 
Additional information regarding polygraph policies can be found at 
7wwwjamesmadisonproject.org and wwwfas. 
orglsgplothergovlpolygraphlindex.html.
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    My testimony today will address the existing policy issues 
surrounding the use by the federal government of polygraphs for 
screening purposes, the manner in which federal agencies utilize the 
device and the consequences that arise from its use. I will also 
briefly summarize the legal issues in the two pending civil lawsuits. 
While I will not present detailed evidence regarding the science of the 
device, given that there are those far more qualified than I testifying 
on this aspect, I wilt cite to specific scientific studies where 
relevant.
                         Overview Of Testimony
    With my testimony, I wish to emphasize six key points. In listening 
to today's testimony, this Committee should not be under the mistaken 
impression that the science will determine the outcome of the policy. 
Rather the current federal polygraph programs require a difficult 
policy examination of the unequal balance between harm and benefit. My 
key themes unequivocally tilt that balance against utilizing the 
device.
 The federal government's use of polygraph examinations is 
        based more on a perception of insecurity on how best to address 
        difficult security problems than one based on reason or logic. 
        The policy has driven the science rather than the other way 
        around. Even if one operated under the assumption that the 
        polygraph protagonists' science is more accurate and that the 
        device has a certain degree of utility, there is still ample 
        room for abuse and error to occur, which it does. Each year 
        federal agencies falsely accuse thousands of honest and 
        trustworthy Americans of lying or having committed criminal 
        acts. And many of those who are truly guilty of such offenses 
        go undetected by the device. When considering this dispute as 
        more a matter of policy, rather than debating the science or 
        utility, one must conclude the polygraph causes more harm to 
        our society than benefit.
 The overwhelming majority of federal polygraph examinations 
        that are administered are screening tests either for applicants 
        or are part of security reinvestigations for current employees. 
        Yet, there are no known studies that support the validity of 
        these types of tests. Indeed, even the government's own experts 
        have condemned the use of screening tests.
 There is a lack of standardization pertaining to the use of 
        polygraph screening examinations throughout the federal 
        government. Depending upon the agency, polygraphers routinely 
        have demonstrated abusive and threatening conduct which 
        improperly stimulates an examinee's physiological responses. 
        Moreover, there are no legitimate avenues available to 
        challenge the conduct of a polygrapher. Oversight of 
        polygraphers is not a high priority. Few agencies truly police 
        the polygraph police.
 Though the government acknowledges the existence of false-
        positive rates as high as 15%, there is little or no due 
        process accorded applicants for federal employment who have 
        fallen victim to polygraph abuse. An inconclusive or 
        unfavorable finding automatically results in the loss of a 
        conditional job offer. Moreover, federal agencies will 
        disseminate polygraph results to other federal, state or local 
        agencies without hesitation thereby stigmatizing these 
        individuals on a continuing basis.
 In addition to concerns of false-positive results, current 
        federal employees are prone to be victimized by retaliatory 
        polygraph examinations. Indeed, evidence exists that some 
        agencies instruct their polygraphers to intentionally fail 
        employees or generate false-positive results. An inconclusive 
        or unfavorable polygraph result for an employee very often 
        signifies career-ending damage, even though no collaborating 
        evidence of their guilt may ever surface.
 There are alternative methods available other than polygraph 
        examinations that will at least provide an examinee with a 
        reasonable opportunity to respond to any allegations that arise 
        from suspicious conduct.\4\
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    \4\ 1t is beyond the scope of this hearing to truly and properly 
address this very important question, but some examples include having 
counterespionage experts train security investigators, requiring all 
employees to file detailed annual financial disclosures and the 
creation of databases that examine employees' personal foreign travel, 
foreign contacts and outside activities. Obviously, the necessary 
balance to ensure some adequate level of personal privacy must be taken 
into consideration, as well as precautions to prevent abuse and allow 
for challenges.
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                     what actually is a polygraph?
    A modern polygraph machine measures respiration at two points on 
the body; on the upper chest (thoracic respiration), and on the abdomen 
(abdominal respiration). Movements of the body associated with 
breathing are recorded such that the rate and depth of inspiration and 
expiration can be measured. The polygraph machine also measures skin 
conductance or galvanic skin response. Electrodes attached to the 
subject's fingertip or palm of the hand indicate changes in the sweat 
gland activity in those areas. In addition, the polygraph measures 
increases in blood pressure and changes in the heart rate. This 
measurement, known as the cardiovascular measurement, is obtained by 
placing a standard blood pressure cuff on the subject's upper arm. 
Finally, the polygraph may also measure, by means of a plethysmograph, 
blood supply changes in the skin which occur as blood vessels in the 
skin of the finger constrict due to stimulation.
    A polygraph examiner purports to interpret these readings while 
asking a series of questions. The examiner forms an opinion of the 
subject's truthfulness by allegedly comparing the physiological 
reactions to each set of questions. A number of extrinsic factors, 
however, affect polygraph validity. Because the examiner must formulate 
the questions, supplement the data with his own impression of the 
subject during the exam, and infer lies from a combination of the data 
and his impressions, the level of skill and training of the examiner 
will effect the reliability of the results. A polygraph examiner's 
interpretation of polygraph results is not, in fact, true evidence of 
conduct. It is merely the opinion of an individual with no knowledge 
about any of the facts surrounding the subject matter of the questions.
    ``The roots of the modern lie detector stretch back to antiquity. 
Like modern methods, early techniques to ferret out lies often relied 
on the behavior exhibited by liars--sweaty palms, dry mouth, shifting 
gaze, racing pulse. In China, for example, suspected liars were fed a 
handful of dry rice. If they could spit it out, the thinking went, they 
were telling the truth. If the rice stuck to their tongue, they must 
have something to hide.''\5\
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    \5\ ``New Facts about Shaving Revealed by Lie Detector!'' ``Are 
polygraph tests lying to us?'', Baltimore Sun, November 3, 2000.
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           past congressional positions against polygraph use
    This hearing, of course, is not the first time the Congress has 
directed its attention to polygraph policies. Congressional 
representatives and Committees have consistently derided the use of 
polygraph examinations. Some examples follow.
    The late Senator Sam J. Ervin, Jr., once stated about polygraph 
testing that

[t]he process smacks of 20th century witchcraft . . .The burden of 
        proof should be on those who assert the effcacy of polygraph in 
        predicting the behavior of prospective . . .employees. There 
        have been practically no efforts to compile this proof . . .Why 
        then do [employers] have such blind faith in these devices? In 
        my opinion, it is directly related to the role of science and 
        technology in our society--the cult of the `expert'. There is 
        an increasing belief that anything scientific must be more 
        reliable and rational than the judgment of men . . .There is no 
        necessity for these infringements of freedom and invasions of 
        privacy; but even if there were a necessity for them, I believe 
        that every citizen should answer like William Pitt: `Necessity 
        is the plea for every infringement of human liberty. It is the 
        argument of tyrants; it is the creed of slaves.'\6\

    \6\ Lykken, David T. A Tremor in the Blood: Uses and Abuses of the 
Lie Detector 213 (1998).
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    In 1964, a subcommittee of the House Government Operations 
Committee concluded that there was no adequate evidence to establish 
the validity of the polygraph.\7\ In 1974, a House Committee chaired by 
Congressman Moorehead recommended that polygraph usage ``be completely 
discontinued by all government agencies for all purposes.'' \8\ In 
1979, the Oversight Subcommittee of the Select Committee on 
Intelligence of the U.S. House of Representatives was notified that 
polygraph testing was a central component of the preemployment 
screening process for applicants for positions in most federal law 
enforcement and intelligence agencies. Approximately 75% of those 
denied security clearances by the CIA or NSA resulted from the 
polygraph. Based in part on this information, the subcommittee urged 
the director of the CIA to institute research on ``the accuracy of the 
polygraph in the pre-employment setting and to establish some level of 
confidence in the use of that technique.'' \9\ To date, no credible 
research supporting the use of preemployment polygraph screening has 
been published.
---------------------------------------------------------------------------
    \7\ SeeUs of Polygraphs as ``lie detectors'' by federal agencies: 
Hearings Before a Subcommittee of the Committee on Government 
Operations, 88th Cong. (1964).
    \8\ Abram S.  The Complete Poly?graandbook (1989).
    \9\ Lykken, supra note 6 at 161.
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    In November 1983, the Office of Technology Assessment issued a 
report entitled ``Scientific Validity of Polygraph Testing: A Research 
Review and Evaluation''. The report concluded that ``the available 
research evidence does not establish the scientific validity of the 
polygraph test for personnel security screening'' and that the 
``mathematical chance of incorrect identification of innocent persons 
as deceptive (false positives) is highest when the polygraph is used 
for screening purposes.'' \10\
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    \10\ A copy of the report can be found at http: //www. nopolygraph. 
comlotastudy. htm.
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    Particularly in light of this report, additional hearings were held 
and The Employee Polygraph Protection Act of 1988, 29 U.S.C. Sec. 2001 
.et seq , was ultimately enacted.\11\ It generally prohibits the 
private sector from using polygraphs in preemployment screening and 
sharply curtails the permissible uses of the polygraph in specific-
incident investigations. Prior to the enactment of this legislation, it 
was estimated that a minimum of 400,000 truthful employees were 
wrongfully labeled deceptive and suffered adverse employment 
consequences each year. The federal government, however, exempted 
itself from the provisions prohibiting preemployment testing.
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    \11\ See Employee Polygraph Protection Act: Hearing on S.185 Before 
the Senate Committee on Labor and Human Resources, 100th Cong., 1st 
Sess. (1988).
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    On September 29, 1997, Dr. Drew C. Richardson, a FBI Supervisory 
Special Agent, testified before the Senate Judiciary Committee and 
condemned the use of the polygraph machine. He testified, in part, that 
``[w]ithin the Bureau, polygraph examiners who have little or no 
understanding of the scientific principles underlying their practice, 
report to mid-level managers who are largely ignorant of polygraph 
matters. These mid-level managers in turn report to executives, who 
have real problems for which they seek needed solutions (e.g., the need 
to protect national security from the danger of espionage, and the need 
to hire employees with appropriate backgrounds). These executives are 
left unable to evaluate that polygraph is not a viable solution and do 
not comprehend that ignorance and mis-information are built into their 
own command structure.'' \12\
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    \12\ See http: //antipolygraph. orglhearingslsenat. . .lrichardson-
statement. shtm.
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    Most recently, the FY2000 Intelligence Authorization Act asserted 
that ``[p]olygraphing has been described as a `useful, if unreliable' 
investigative tool.'' The Senate Intelligence Committee instructed the 
Central Intelligence Agency (``CIA'') and FBI to assess ``alternative 
technologies to the polygraph'' and report back to the Committee within 
ninety days.\13\
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    \13\ Wash Post Nat. Weekly, Aug. 2, 1999. The extent to which the 
CIA and FBI submitted a report is unknown. Additionally, The National 
Academy of Sciences, at the request of the Department of Energy, 
recently begun a 15 month review of current polygraph policies. See e. 
g., http://www4.nas.edu/webcr.nsf/MeetingDisplay2/BCSS-I-00-01-A? 
OpenDocument.
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       the federal government's use of polygraph screening tests
    The majority of those circumstances where a polygraph is utilized 
is in the screening of federal applicants for employment or a current 
federal employee. The questions will typically differ between 
applicants and current employees. The former will have to respond to 
lifestyle questions (drug usage, sexual activities), while the latter 
is predominantly limited to counterintelligence questions (unauthorized 
disclosure of classified information, contact with foreign personnel). 
Depending upon the agency, the format of the test will also differ.
    There are no peer-reviewed scientifically accepted studies that 
demonstrate the validity of such screening tests. Even the government's 
own experts agree on this point.\14\ Thus, unlike an investigation into 
a specific crime, there is no particular reason why a screening 
examination is being administered in that no specific allegation is 
being explored that has a perceived basis of merit. The tests are 
nothing more than fishing expeditions.\15\
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    \14\ Charles R. Honts, ``Counterintelligence Scope Polygraph (CSP) 
Test Found to be Poor Discriminator'', Forensic Reports, 5:215-218 
(1992);------, ``The Emperor's New Clothes: Application of Polygraph 
Tests in the American Workplace'', Forensic Reports, 4:91-116 (1991); 
Barland, G.H. et al, ``Studies of the Accuracy of Security Screening 
Polygraph Examinations'', Department of Defense Polygraph Institute, 
Fort McClellan, Alabama (1989).
    \15\ As Spinoza, one of the greatest Western thinkers and 
philosophers, wrote more than 300 years ago in his famous treatise 
``Ethica ordine geometrico demonstrata'' (otherwise known as 
``Ethics'')(1677): ``He who would distinguish the false from the true, 
Must have an adequate idea of what is false and true.''
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Applicants For Federal Employment
    Federal agencies use the polygraph machine in preemployment 
settings in order to indiscriminately weed out individuals and avoid 
the need to conduct an in-depth background investigation. This permits 
the agency to avoid spending time and resources on individuals they may 
possibly later seek to reject from employment.\16\ As a result, 
however, thousands of innocent individuals are falsely labeled drug 
users, drug dealers, terrorists and/or spies without any reasonable 
opportunity to ever clear their name.\17\ After receiving a false-
positive reading that falls outside an agency's defined acceptable 
parameters, the applicant is simply left out in the cold while the 
agency continues to maintain the posture that the applicant is a liar. 
The applicant's conditional offer of employment is immediately 
rescinded.
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    \16\ For example, the FBI has asserted in correspondence that the 
``polygraph is an effective investigative tool which can save many 
investigative man-hours, decrease the overall cost of investigations, 
and provide valuable investigative leads or information which could not 
otherwise be developed due to lack of evidence or other noteworthy 
information.'' Copies on file with the author.
    \17\ For example, according to an October 28, 1997, letter sent by 
Donald Kerr, the Assistant Director of the FBI's Laboratory Division, 
to Senator Charles E. Grassley, between March 1994, and October 1997, 
``the FBI conducted approximately 16,200 preemployment polygraph 
examinations. Of those, 12,930 applicants (80 percent) passed and 
continued processing; 3,270 applicants (20 percent) were determined to 
be withholding pertinent information. When these individuals were 
interviewed about their unacceptable performance in the polygraph 
session, 1,170 (36 percent) admitted to withholding substantive 
information.'' See http://www.nopolygraph.com/kerr.pdf. While the FBI's 
definition of ``substantive'' is unknown, based on the above FBI 
figures up to 64 percent of those individuals (2,100) who were deemed 
deceptive by the polygraph examiner may have been or were innocent of 
any wrongdoing. Yet, their FBI files, which are available to other 
governmental agencies, now reflect that they lied about a stigmatizing 
topic.
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    Although applicants and employees will be told their polygraph 
results will be kept confidential, the information is often shared with 
other intelligence and law enforcement agencies, whether that be 
federal, state or local. Sharing is permitted through the routine use 
exception of the Privacy Act.\18\ Not only does this result in 
irreparable harm to these applicants, but it denies the federal 
government's access to qualified and capable employees. Yet when it 
suits the federal government's needs, an agency will not hesitate to 
overlook an otherwise deceptive polygraph reading or denounce the 
polygraph as unreliable.\19\
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    \18\ See 5 U.S.C. Sec. 552a(b)(3).
    \19\ 0n February 3, 1997, James K. Murphy, the Chief of the FBI's 
Laboratory's Polygraph Unit in Washington, D.C. and a FBI polygraph 
examiner since 1978, submitted a declaration to the United States 
Military Court, Mid-Atlantic Region, Norfolk, Virginia, in the case of 
United States v. Ens Patrick J Jacobson. USN. He stated that ``[i]t is 
the policy of The Department of Justice to oppose all attempts by 
defense counsel to admit polygraph results as evidence and to refrain 
from seeking the admission of favorable examinations which may have 
been conducted during the investigatory stage of a case . . .The FBI 
uses the polygraph as an investigative tool and cautions that the 
results should not be relied upon to the exclusion of other evidence or 
knowledge obtained during the course of an investigation . . .This 
policy is based upon the fact that, a) the polygraph technique has not 
reached a level of acceptability within the relevant scientific 
community, b) scientific research has not been able to establish the 
true validity of polygraph testing in criminal applications, c) there 
is a lack of standardization within the polygraph community for 
training and for conducting polygraph examinations.'' See 
www.nopolygraph.com/murphy.pdf. The following year, the Department of 
Justice told the U.S. Supreme Court that polygraph evidence should be 
inadmissible because of its inaccuracy. United States v. Scheffer, 523 
U.S. 303 (1998). Thus, a serious inconsistency exists between the 
government's use of polygraphs in criminal cases and its extensive use 
of polygraphs to make vital security and preemployment determinations.
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Current Federal Employees
    The extent to which current federal employees are subject to 
polygraph testing, and the consequences from an inconclusive or 
deceptive reading, varies from agency to agency. Those agencies that do 
conduct polygraph testing of their employees, particularly from within 
the intelligence community, typically conduct routine 
counterintelligence examinations every five years or so. Depending upon 
the results, employees may face adverse personnel actions, loss of 
their security clearance \20\ or administrative limbo.
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    \20\ Which is governed by internal agency regulations and Executive 
Order 12,968, 60 Fed.Reg. 40245 (August 7, 1995)(establishing appellate 
framework to challenge denial of security clearances).
---------------------------------------------------------------------------
    More detailed examples are below.
                         utility versus policy
    In debating the need for the polygraph, you will often hear how 
successful the device has been in enticing examinees to confess to all 
sorts of crimes or acts. There is no significant dispute that use of 
the polygraph has indeed led to confessions. The question is what 
prompted the confession? The answer is that it is often not the 
polygraph as a device, but the method of interrogation that led to the 
confession. The perceived false notion that polygraph machines 
accurately detect lies can lead to the extraction of confessions from 
those who are either not that bright, as with many criminals, or who 
simply genuinely believe in the utility of the device. Law enforcement 
personnel throughout this country all have stories of how suspects have 
been persuaded to confess because of the use of a ``lie-detector''. 
Yet, the device was nothing more than a police car antenna (a law 
enforcement officer would honk the horn after the individual provided a 
``false'' response) or a photocopying machine (which would print out a 
piece of paper that indicated the suspect was ``lying'').
    The scientific community, as well as the government, admits to the 
existence of false-positives, identifying someone as guilty when they 
are really innocent, though the figures vary. Still, in announcing the 
FBI's intention to expand its polygraph program, Attorney General John 
Ashcroft admitted in a press conference that the false-positive rate is 
15%.\21\ Yet, despite knowing that innocent persons will be falsely 
accused, no adequate protections exist in any agency to address this 
obvious problem. Moreover, the existence of false-negatives, i.e., 
guilty individuals who pass as innocent, significantly contributes to 
the failure of the government's polygraph policies. Those who 
successfully generate a false negative response, of course, have 
avoided being caught. Yet, those who unfortunately generate a false-
positive fall victim to an unending process of scrutiny when they have 
done nothing wrong.
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    \21\ ``Spy-Wary FBI Agrees to Polygraphs'', Los Angeles Times, Mar. 
2, 2001.
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    Former FBI Special Agent Mark Mallah's experiences illustrate the 
problem. In January 1995, he was asked to undergo a polygraph test. The 
examination was a routine national security screening. Special Agent 
Mallah was not under suspicion at the time. However, following the 
examination, he was accused of ``deception'' with respect to the 
question on unauthorized contact with foreign officials. Two weeks 
later, he was instructed to report to Washington, D.C. where he 
underwent two additional consecutive days of polygraph examinations and 
lengthy interrogations. The polygraphers continually insisted that he 
was being deceptive, but Special Agent Mallah continually denied the 
accusations. He was then placed on administrative leave with pay 
pending further investigation.
    The FBI conducted a major and intrusive investigation which 
included the raiding of his home and seizure of personal belongings. 
For a two month period, he was even placed under twenty four hour 
surveillance, seven days a week. The FBI interviewed numerous friends, 
acquaintances, former roommates, colleagues, and members of his family. 
The FBI even accused one of his friends of being an accomplice and 
administered a polygraph test, which the individual ``passed''. Special 
Agents showed up unannounced and surprised his wife at her place of 
work, and asked to interview her right then and there. When she was 
eventually interviewed, the FBI asked her to also take a polygraph, 
which she declined to do. The FBI asked both of Special Agent Mallah's 
brothers to take a polygraph test. One agreed, and he ``passed.'' 
Another Special Agent told one of Special Agent Mallah's friends that 
there was ``significant evidence'' against him. This same agent told 
Special Agent Mallah's brother he was certain that he was guilty.
    After five months of investigation, he returned to work as a 
Special Agent entrusted with a ``top secret'' clearance, a weapon and a 
badge. Yet, despite his reinstatement, the ``problem'' still existed. 
In October 1995, the FBI wrote that he was ``the subject of a security 
reinvestigation involving your inability to resolve issues relating to 
your associations with foreign nationals . . .as well as your 
susceptibility to coercion as a result of your concealment of these 
matters.'' No specifics were ever provided, and Special Agent Mallah 
still denies to this day that these allegations had any merit. Finally, 
the investigation was terminated in September 1996, nearly two years 
after it began. The final outcome was a letter of censure and a two 
week suspension for a trivial administrative issue and a minor 
discrepancy in his FBI employment application. The letter of censure 
was silent about unauthorized contacts with foreign offcials, which was 
the alleged national security issue that launched the investigation in 
the first place. Even though he had been finally exonerated, in disgust 
with what occurred, Special Agent Mallah voluntarily resigned from the 
FBI with a clean record.
             current federal use of polygraph examinations
    Polygraph examinations are administered throughout the federal 
government, primarily by those agencies within the law enforcement and 
intelligence communities. Those agencies that are more heavily 
utilizing the device now include the FBI, USSS, CIA, Drug Enforcement 
Administration, National Security Agency, Department of Energy, 
Department of Defense, Bureau of Alcohol, Tobacco and Firearms, Defense 
Security Service, and the U.S. Marshall's Service. Of course, polygraph 
use applies not only to federal employees, but also to independent 
contractors as well.
    ``The polygraph . . . has achieved a new status in the world of 
counterintelligence in the past five years. The CIA and the FBI have 
polygraphed at least 40,000 job applicants and employees in their 
search for drug users and would-be spies. According to intelligence and 
law enforcement officials, the polygraph has become the nation's number 
one tool for safeguarding national security against penetration by 
foreign agents.'' \22\
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    \22\ ``Spy Detection, Inc.; A Test Of Honesty? Check That'', 
Washington Post, May 23, 1999, at B 1.
---------------------------------------------------------------------------
    Though polygraphers for federal agencies all receive the same 
initial training at the Department of Defense's Polygraph Institute, 
the manner by which a polygraph is administered will vary between 
agencies. Of course, the abuses that occur also vary between agencies. 
Some examples are detailed below.
Federal Bureau of Investigation
    The FBI has had a long history with the polygraph. In the late 
1930s, J. Edgar Hoover, the icon director of the FBI, frowned on its 
use because of a misidentification of a kidnapping suspect in Florida. 
It was generally prohibited after this episode for decades, except for 
use in limited circumstances. Throughout the tenures of different 
directors, the question of polygraphing current employees every five 
years on areas of espionage and sabotage routinely arose. Indeed, Judge 
William Webster considered expanding the program in 1978. The proposals 
were always rejected.\23\ In the wake of the Aldrich Ames case, the 
current FBI Director, Louis Freeh, also rejected implementation of 
routine polygraph examinations of employees.\24\
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    \23\ FBI chief Freeh to explain polygraph dearth in wake of spy 
charges'', Knight Ridder Newspapers, April 28, 2001.
    \24\ ``Michael Kortan, an FBI spokesman, said FBI leaders worry 
that more polygraphs would generate more lawsuits and scores of agents 
would be placed in investigative limbo after `false positive' 
readings--failing the polygraph out of nervousness when the person is 
telling the truth.'' Id.
---------------------------------------------------------------------------
    However, the FBI did modify its policy in March 1994, to polygraph 
any applicant for a full-time position with the FBI, no matter the 
individual's level of responsibility. The FBI's polygraph screening 
focuses exclusively on counterintelligence issues, the sale and/or use 
of illegal drugs, and the accuracy and completeness of information 
furnished by applicants in their employment applications. It has been 
estimated that approximately 20%-40% of all FBI employee candidates 
each year fail the polygraph examination, typically due to responses to 
the drug use question.\25\
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    \25\ When the FBI implemented its polygraph program in 1994, that 
years' special agent class had already begun its training. It has been 
alleged that approximately half the class failed resulting in the FBI 
waiving the polygraph requirement until the next class.
---------------------------------------------------------------------------
    In the wake of the Hanssen case, the FBI has recently expanded its 
polygraph screening program. By Memorandum dated March 16, 2001, the 
FBI announced that beginning March 28, 2001, it would institute 
counterintelligence-focused polygraph examinations to employees who 
occupied certain assignments or occupations.\26\ It was estimated that 
approximately 500 employees would be polygraphed over the next sixty 
days. Id. at 3. With respect to those employees who experience trouble 
with the polygraph, the Memorandum noted:

    \26\ Copy on file with the author.
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Experience has shown that most FBI employees taking the 
        counterintelligence-focused polygraph examination successfully 
        complete the test. However, there may be a very small number of 
        employees whose tests are either inconclusive or are indicative 
        of deception. Polygraph examiners will attempt to fully resolve 
        all unexplained responses through the effective use of thorough 
        preand post-test interviews. If, upon completion of a thorough 
        examination, there is still an inconclusive or deceptive 
        response, it will be considered ``unexplained''. Consistent 
        with existing policy, no adverse action will be taken based 
        upon the polygraph results alone. However, more extensive 
        investigation will be initiated to resolve the unexplained test 
        results.

    Id. Those employees who refuse to take the test will be subjected 
to administrative actions which may include transfer, a finding of 
insubordination and disciplinary action or a reevaluation of the 
employee's security clearance. Id. at 3-4. Those who may encounter 
trouble with the FBI's polygraph will certainly take no comfort in 
knowing of the experiences of Special Agent Mallah. Nor are the FBI's 
assurances that no adverse actions will be taken based solely upon the 
polygraph results necessarily binding. The same assurances are falsely 
provided to applicants.
    The FBI has noted in correspondence that it ``uses the polygraph as 
an aid to investigation and considers it highly reliable when used by a 
competent and ethical examiner. It is one part of the screening process 
and is designed to address issues that may not be resolved by more 
traditional investigative methods.'' \27\ Donald Kerr, the Assistant 
Director of the FBI's Laboratory Division, informed Senator Charles E. 
Grassley by letter dated October 28, 1997, that the polygraph ``is not 
a substitute for, but merely one component of, a thorough and complete 
background investigation''. Yet, an applicant who fails, or registers 
inconclusive during, a polygraph examination is automatically excluded 
from employment and their conditional employment offer is immediately 
rescinded.\28\ No background investigation is conducted to verify the 
information, nor is the applicant provided a formal opportunity to 
challenge the polygraph results.\29\
---------------------------------------------------------------------------
    \27\ Id.
    \28\ Problems with the FBI's polygraph examinations extends beyond 
new applicants. Many former FBI Special Agents, including those who had 
distinguished careers, have failed polygraph examinations when trying 
to either re-enter the FBI or attain a consulting arrangement. In 
solely considering the results of the polygraph machine to arrive at 
its suitability determination, the FBI literally accuses its former 
agents of having committed crimes while on duty with the FBI; acts that 
if true have still gone unpunished.
    \29\ However, the FBI official policy, as set forth in various 
correspondence, is that ``[a]ny applicant who does not successfully 
pass an initial polygraph examination may request to be afforded a 
second polygraph examination; however, certain criteria must be met.'' 
Copy of correspondence on file with author. While the criteria is not 
publicly known, the FBI policy on this issue is contained in a Buairtel 
dated May 1, 1995, captioned ``Special Agent Selection System (SASS) 
Polygraph Policy''. Although applicants to the FBI have been notified 
by letter that the ``FBI's policy regarding additional polygraph 
examinations is consistent for all applicants'', there is absolutely no 
rhyme or reason to the manner in which the FBI grants retests. It is 
essentially an arbitrary process.
---------------------------------------------------------------------------
    Some of the specific concerns regarding the FBI's polygraph program 
includes:

 The FBI neither tape records or videotapes their examinations, 
        thereby precluding examinees an opportunity to challenge the 
        conduct of the polygrapher or identify potential errors in the 
        examination.
 FBI polygraphers have demonstrated significant bias in their 
        perceptions of applicants, which affects the manner in which 
        the test is administered and the results achieved. For example, 
        one FBI polygraph examiner, Special Agent H. L. Byford, stated 
        in an e-mail dated August 6, 1999, that ``if someone has smoked 
        marijuana 15 times, he's done it 50 times . . ..Those who have 
        any doubts about how many times they used are going to fail. 
        Those who are certain that they only tried it once or three 
        times or five or whatever, will pass . . ..I got to tell you 
        though, if I was running the show, there would be no one in the 
        FBI that ever used illegal drugs!'' The FBI's present drug use 
        policy allows marijuana use so long as it was not during the 
        last three years or more than fifteen times, or if usage of any 
        illegal drug(s) or combination of illegal drugs, other than 
        marijuana, was not more than five times or during the last ten 
        years.\30\
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    \30\ Another recent example of the influence of polygrapher bias 
involves David Tenenbaum, an engineer for the Army Tank and Automotive 
Command in Michigan. Tenenbaum, a devout Jew, became a suspect in 1996 
of spying for Israel. Based on an alleged confession made during a 
polygraph examination, the FBI searched Tenenbaum's home but discovered 
nothing. It was later determined that the ``confession' 'was ``nothing 
more than the polygraph examiner's opinion. The polygrapher . . . had 
concluded that `because of devout religious beliefs and his strong 
affinity towards Israel, he would have provided restricted information 
to the Israelis based on his belief that the U.S. government should 
freely share information with one of its closest allies.'' ``Government 
facing charges of racism'', San Jose Mercury News, Oct. 13, 2000. 
Although no charges have ever been filed against Tenenbaum, his 
security clearance access was suspended.
---------------------------------------------------------------------------
    I have included with my testimony copies of several sworn 
declarations executed by former FBI applicants who detail their ordeals 
at the hands of FBI polygraphers. See Exhibit ``1''.
Central Intelligence Agency
    The call for the FBI to expand its polygraph program is often heard 
amidst statements that the CIA routinely polygraphs its employees. The 
intended message is that the CIA must then be more security conscience 
than the FBI, and that since the policy seems to be working over at the 
CIA, the FBI should follow suit. The fact, however, is that CIA's use 
of the polygraph is fraught with abuse and problems.
    In the wake of the Aldrich Ames fiasco in 1994, the CIA vigorously 
implemented an intensive polygraph review. The result has been that in 
excess of 300 employees remain in polygraph limbo. These individuals 
registered a significant physiological response to a security question 
but there is little or no collaboration to support suspicion of 
wrongdoing Many of these cases are referred to the FBI for further 
investigation where they are typically viewed with contempt, and 
accorded low priority because there is little to investigate. Yet, for 
the employees, this serves as the kiss of death to their career. No 
promotions will be granted, and no overseas assignments will be 
permitted. For a CIA employee within the Directorate of Operations, 
falling into this limbo is essentially the end of their career.\31\
---------------------------------------------------------------------------
    \31\ Scientists employed at nuclear laboratories in the United 
States face similar problems in light of the Department of Energy's 
desire to expand polygraph testing in the wake of the Wen Ho Lee case. 
While failure of the test alone allegedly will not result in 
termination of the employee's position, the individual will be 
transferred to work on less sensitive projects--a transfer that 
effectively destroys the careers of most scientists.
---------------------------------------------------------------------------
    Unfortunately, there is little that can be done to remedy this 
situation. The CIA makes it very difficult for these employees to 
retain legal counsel, and even more impossible for legal counsel to 
actually accomplish anything. The CIA will not release the governing 
regulations, primarily because it asserts the documents are classified. 
And even if counsel maintains a security clearance, the CIA will not 
permit access. On these types of issues, the CIA plays by its own 
rules.
    Thus, it is not surprising that in 1997-98, CIA polygraphers 
reported to the Department of Justice's Public Integrity Section that 
they were instructed by CIA management to ``fail'' certain employees. 
Additionally, they revealed that they were taught how to sensitize 
examinees during pre-testing interviews so as to create the likelihood 
of false positives. Notwithstanding these sensational allegations, 
there is no evidence either the CIA or Department of Justice ever 
conducted an investigation.
    Yet, the CIA's mistreatment of one of its former staff attorneys, 
Adam Ciralsky, provides further support for these allegations. The CIA 
fired Mr. Ciralsky and revoked his top-secret security clearance, in 
part, because he allegedly exhibited a ``lack of candor'' about 
relationships with associates who may have been tied to Israeli 
intelligence. Official CIA records, however, revealed that the CIA 
tried to manipulate Ciralsky's polygraph tests so as to transform 
demonstrably ``non-deceptive'' results into ``deceptive'' results. A 
CIA memo, written two weeks before Ciralsky's final polygraph, stated 
that CIA Director George Tenet ``says this guy is outta here because of 
lack of candor . . .. Subject is scheduled for [another] poly . . .. 
Once that's over, it looks like we'll be waving goodbye to our 
friend.'' Thus, official records indicated that the CIA were set to 
base Ciralsky's dismissal on the outcome of a polygraph examination 
that he had yet to take. In fact, Ciralsky underwent and successfully 
completed counterintelligence polygraphs in 1993, 1996 and 1998, at 
which times his answers were consistently deemed to be ``strongly non-
deceptive.'' Yet when Ciralsky submitted to CIA polygraph examinations 
in August and October 1997, he was accused of ``deception'' with regard 
to issues and events which pre-dated, and hence were covered by, his 
earlier polygraphs.
    Moreover, evidence exists that the CIA uses polygraph examinations 
as a means of retaliation against those employees who file EEO 
complaints or grievances. Within one to two months of filing such 
complaints, many employees have experienced a significant acceleration 
of their ``routine'' security reinvestigations, sometimes more than one 
to two years ahead of schedule. CIA employees typically will not face a 
periodic security reinvestigations until five years have passed, and 
because of budgetary and staff constraints many investigations do not 
occur until seven or ten years later.
United States Secret Service
    Of all the agencies I have dealt with, I have received the most 
complaints concerning the conduct of USSS polygraphers. The stories I 
have been told have been genuinely consistent. The polygraphers have 
been abusive, hostile, arrogant, banged their fists on the tables or 
slapped their thighs and routinely yell or scream at examinees. 
Questions have been asked regarding marital infidelities and sexual 
relations with animals.\32\ I have included with my testimony copies of 
several sworn declarations executed by former USSS applicants who 
detail their ordeals at the hands of USSS polygraphers. See Exhibit 
``2''.
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    \32\ The American Polygraph Association condemns the use of 
personal and intrusive questions. It does not condone any type of 
inquiry into sexual preferences or activities. See http://
www.polygraph.org/apa5.htm.
---------------------------------------------------------------------------
    Although polygraph sessions are audiotaped, ostensibly in order to 
allow challenges to the manner in which examinations were conducted, 
the USSS steadfastly refuses to release the audiotapes, whether 
pursuant to the Freedom of Information Act, 5 U.S.C. Sec. 552 (a) or 
through the legal discovery process.
Examples Of Other Systemic Problems Associated With Polygraph Testing 
        That Occur Throughout The Federal Government
    Many of the problems associated with polygraph testing are not 
isolated at one particular agency. Rather, they are endemic of the 
culture that exists within the federal government. Beyond those already 
identified above, these problems include:

 Those agencies that administer multiple polygraph exams to an 
        individual, whether an applicant or a current employee, 
        sometimes utilize the same polygrapher. Oftentimes, even when a 
        different polygrapher is utilized, the polygrapher is aware of 
        the prior test results. This taints the objectivity of the 
        examination.
 Polygraph examiners receive only 12-14 weeks of training from 
        the Defense Department's Polygraph Institute, yet are expected 
        to become experts in understanding human physiological 
        responses that scientists have been studying for years without 
        fully unlocking the secrets. Sheila Reed, a former research 
        psychologist at the Defense Department's Polygraph Institute 
        who was responsible for developing and standardizing the test 
        format and operator's manual currently used by several federal 
        agencies, told the National Journal ``that government-trained 
        examiners don't understand psychology, physiology, and 
        electronics, and that their procedures are `unethical'. In 
        addition, she said, her preliminary research at the institute 
        showed that polygraph examiners do have biases that can affect 
        results.'' \33\
---------------------------------------------------------------------------
    \33\ ``Polarized Over Polygraphs'', National Journal, Sept. 9, 
2000, at 2801.
---------------------------------------------------------------------------
 Applicants are often ``tricked'' into appeasing polygraphers' 
        allegations of deception only to then be penalized by the 
        agency for having ``lied'' on their applications. For example, 
        agencies will require an applicant to state the specific number 
        of times marijuana had been used. Given that oftentimes the 
        usage occurred years before, it may be understandably difficult 
        to come up with an exact number. If ``deception'' is indicated 
        in response to a drug usage question, the polygrapher will 
        persuade the applicant to admit to additional usage (which is 
        not inconsistent with what the applicant told the recruiting 
        agent). The applicant then loses his/her conditional offer of 
        employment for ``lying'' on their application.
 The fact that individuals have failed polygraph examinations 
        at one federal agency yet contemporaneously successfully passed 
        a polygraph examination regarding the same issues at another 
        agency.

                the polygraph's failure to expose spies
    Today, the outcry for increasing the use of polygraph examinations 
arises in the context of catching spies. Suspected spy Robert Hanssen 
was acknowledged never to have taken a polygraph examination during his 
entire FBI career. Yet, even if he had, the overwhelming likelihood is 
that this smooth operator would have passed. False-negative responses 
occur at a frequency far greater than false-positives. One of the most 
comprehensive studies conducted by the government of security screening 
polygraph examinations revealed a rate as high as 66%.\34\
---------------------------------------------------------------------------
    \34\ Barland, G.H. et al, ``Studies of the Accuracy of Security 
Screening Polygraph Examinations'' (Department of Defense Polygraph 
Institute, Fort McClellan, Alabama, 1989) at iii. The 1983 report 
issued by the Office of Technology Assessment noted false-negative 
results approaching 30%.
---------------------------------------------------------------------------
    In 1986 and 1991, Aldrich Ames, the former CIA official turned-spy, 
convinced his polygraph examiners that the deceptive readings he was 
allegedly displaying were easily explained away. As a result, Ames 
``passed'' his tests. While the Ames case is indicative of wide-ranging 
problems that can arise solely through examiner conduct, it more 
importantly reveals that the polygraph had little deterrent value, at 
least for Ames, who had started his spying in 1985.\35\
---------------------------------------------------------------------------
    \35\ See e.g. David Wise, Nightmover 146-47,210-211 (1995); Tim 
Weiner et al., Betrayal 89-91 (1995).
---------------------------------------------------------------------------
    Even worse, during the 1980s, approximately thirty Cubans who 
served as spies for the CIA passed extensive polygraph examinations. 
Following the subsequent defection of a Cuban intelligence officer and 
his debriefing, it was revealed that all of the CIA's ``Cuban agents'' 
were actually double-agents working for the Cuban Government. Each and 
every one of them had defeated the CIA's polygraph examinations.
    In fact, it is a simple feat to defeat the polygraph, which 
undermines the entire purpose of utilizing it to determine the truth. 
The very persons most likely to be the subject of a polygraph 
examination can use any number of techniques to ``truthfully'' lie by 
using countermeasures. For those less skilled in the art of spycraft, 
various instructions on how to defeat the polygraph are publicly 
available in books and on the Internet.\36\
---------------------------------------------------------------------------
    \36\ For example, for $47.45 you can order ``How to Sting the 
Polygraph'' written by Douglas William, a former police polygrapher, 
which instructs you on ways to beat the polygraph. See http://
wwwpolygraph.coml.
---------------------------------------------------------------------------
             legal issues surrounding polygraph challenges
    The controversy surrounding polygraph reliability is not a subject 
unknown to the courts of this land. From the Supreme Court's decision 
upholding a blanket ban on the admissibility of polygraph evidence in 
military courts because ``there is simply no consensus that polygraph 
evidence is reliable,'' United States v. Scheffer, 523 U.S. 303, 309 
(1998), to the Ninth Circuit Court of Appeals decrying that the 
polygraph machine has developed the ``misleading reputation as a `truth 
teller','' United States v. Marshall, 526 F.2d 1349, 1360 (9th Cir.), 
cert. denied, 426 U.S. 923 (1976), step by step courts have limited the 
use of this alleged scientific device.
    Surprisingly, in the wake of statutory prohibitions regarding the 
use of the polygraph as a screening device and continuing examples of 
its fallibility, federal agencies have increased their use of the 
device. The majority of applicants who are branded as liars by pre-
employment polygraphs are invariably victimized by questions regarding 
drug usage. The events in question, i.e., incidents of marijuana being 
smoked, typically occurred years before the examination, often more 
than a decade earlier. Recalling the exact number of times is almost 
farcical, unless perhaps the applicant only used the substance once or 
twice on memorable occasions.
    The fact that so many years have gone by significantly impacts upon 
the polygraph's reliability. United States v. Demma. 523 F.2d 981, 987 
(9th Cir. 1975)(en banc) (``probative value of the [polygraph] evidence 
diminished by the lapse of time between the occurrence of the events 
and the taking of the test''). Of course, there is little difficulty 
for an applicant to recall the fact that they never used illegal 
narcotics even once in their life; a confession many government 
polygraphers seem to have trouble accepting based on their own personal 
biases.
    As I mentioned above, the governments' polygraphers often have 
little sophisticated training and their professionalism ranges across 
the board. Some scream at applicants, pound their fists, ask 
inappropriate questions about sexual deviance, marital affairs and 
mental instability. Others may level accusations of lying, or even lie 
themselves in order to extract false confessions. Innocent victims of 
the polygraph are common, particularly because ``[m]ultiple variables 
may influence the results of a polygraph test, including the motivation 
of the subject, his physical and mental condition, the competence, 
integrity, and attitude of the operator, the wording of the relevant 
questions, the appropriateness of the control questions, and the 
interpretation of the resulting graph.'' United States v. Givens, 767 
F.2d 574, 585 (9th Cir. 1985). The bottom line is that ``the polygraph 
test in fact relies upon a highly subjective, inexact correlation of 
physiological factors having only a debatable relationship to 
dishonesty as such. The device detects lies at a rate only somewhat 
better than chance.'' U.S. v. Piccinonna. 885 F.2d 1529, 1542 (11th 
Cir. 1989).
Applicants for federal employment
    The two lawsuits that are now pending seek injunctive, declaratory 
and monetary relief for eleven plaintiffs pursuant to the 
Administrative Procedure Act, 5 U.S.C. Sec. 701 et sea., the Federal 
Declaratory Judgment Act, 28 U.S.C. Sec. 2201, and the Fifth Amendment 
to the Constitution of the United States. The first Complaint was filed 
on behalf of seven individuals on March 15, 2000. The second Complaint 
was filed for four individuals on October 11, 2000. Both complaints 
assert that the government is violating the plaintiffs' due process and 
privacy rights, as well as disregarding applicable agency regulations 
in rescinding employment offers based solely on polygraph results. The 
claims can be summarized as follows:

 Applicants who ``fail'' polygraph tests are effectively 
        stigmatized and precluded from obtaining federal employment in 
        their chosen career field.
 The plaintiffs have lost out on other federal employment 
        opportunities because of prior false-positive results.
 No due process protections exist to enable examinees to 
        challenge false-positive polygraph results.
 Federal agencies will unhesitantly disseminate polygraph 
        results to other agencies due to the routine use exception 
        within the Privacy Act. In any event, the applications for law 
        enforcement or intelligence positions at most federal agencies 
        require admitting whether the applicant had previously sat for 
        a polygraph examinations, and the results.
 Applicants are questioned on personal matters unrelated to the 
        work they would perform if hired.

    At this early stage in the litigation, the government has asserted 
the extreme position that applicants have no constitutional 
protections, that agency decisions to use polygraphs and then base 
suitability decisions upon the results are within their unchallengable 
discretion and that the only available relief exists through amending 
personnel records through the Privacy Act or reporting the alleged 
misconduct to the Office of Special Counsel. Unfortunately, these 
latter two suggested remedies offer nothing of the sort.\37\
---------------------------------------------------------------------------
    \37\ The Privacy Act does not permit challenging agency actions or 
``opinions'', and the government is taking the position that polygraph 
results are nothing more than the ``opinion'' of the polygrapher. The 
Offce of Special Counsel does not have jurisdiction to hear claims 
against many of the agencies that utilize polygraph examinations, such 
as the FBI, CIA or NSA, and it has yet to accept for investigation even 
one polygraph complaint.
---------------------------------------------------------------------------
    The government's Motions to Dismiss both lawsuits have now been 
fully briefed, and the plaintiffs are awaiting the scheduling of oral 
arguments or a decision from the Court.\38\
---------------------------------------------------------------------------
    \38\ Time, unfortunately, did not permit a full legal analysis into 
issues surrounding use of the polygraph throughout the United States. 
Upon request, I would be more than willing to provide the Committee a 
detailed legal analysis of legal challenges asserted in the state and 
federal court systems, as well as an analysis of federal regulations 
governing polygraph examinations.
---------------------------------------------------------------------------
                               CONCLUSION
    No matter the science that may tend to support it, no matter the 
perceived utility that may be derived from it, the fact of the matter 
is that the use of polygraphs by the federal government consistently 
leads to false accusations of wrongdoing against innocent persons, and 
no adequate protections exist to prevent this from occurring. Moreover, 
the device routinely fails to identify those individuals who truly are 
committing criminal acts.
    If the government truly wants to expose spies from within its 
ranks, it may wish to consider another creation of Dr. William M. 
Marston, the Harvard psychologist who many consider to be the father of 
the modern lie detector and the first to realize its commercial 
possibilities in the 1920s.\39\ Marston, under his pseudonym ``Charles 
Moulton'', is probably more famous for having created the popular comic 
book character Wonder Woman. It is no coincidence that her magic lasso 
requires those who feel its bind to tell the absolute truth. To 
discover if other Robert Philip Hanssens exist among its ranks, the 
federal government may as well put its faith in Wonder Woman's magic 
lasso than to rely on the accuracy of the polygraph. Both are derived 
from notions of science fiction.
---------------------------------------------------------------------------
    \39\ In 1915, Marston devised a primitive lie detector based on 
blood pressure. He was one of the first to realize the lie detector's 
commercial possibilities. In 1938, Look magazine described how Marston 
sometimes used his lie detection techniques in marital counseling. He 
also showed up in full-page ads testifying to the close shave offered 
by Gillette razors: ``New Facts about Shaving Revealed by Lie 
Detector!'' ``Are polygraph tests lying to us?'', Baltimore Sun, 
November 3, 2000.
---------------------------------------------------------------------------
    Our judicial system is designed to free ten guilty people in order 
to protect one innocent person from being punished. Continuing use of 
the polygraph stands that very principle on its head, and disgraces the 
honor and loyalties of many otherwise trustworthy and dedicated 
Americans. The utilization of polygraph examinations for screening 
purposes should, therefore, be stopped.

                             EXHIBIT ``1''








































                             EXHIBIT ``2''

































    Chairman Hatch. Mr. Keifer?

   STATEMENT OF RICHARD W. KEIFER, PAST PRESIDENT, AMERICAN 
             POLYGRAPH ASSOCIATION, APOPKA, FLORIDA

    Mr. Keifer. Thank you for the opportunity to appear before 
the Committee, Mr. Chairman. My name is Richard Keifer. I'm 
currently an independent polygraph examiner residing in 
Orlando, Florida. Until I retired in 1996, I was a special 
agent of the FBI and a past manager of their polygraph program. 
I have also served as the President of the American Polygraph 
Association.
    I believe in the protection of individual rights, the 
monitoring of the government, and the protection of national 
security. I have used the polygraph in every manner in the 
counterintelligence arena. That includes the testing of new 
applicants, transfers from other agencies, defecters, illegals, 
double agents, spies, and in internal investigations to cover 
the same. It is my opinion the polygraph is necessary to 
preserve and protect our individual rights by the prevention 
and detection of espionage.
    Responsible critics have hypothesized theoretical 
weaknesses, but have no working experience to support their 
assertions. I have, over time, carefully listened to critics 
and looked for problems they predicted in practice and have, in 
fact, implemented policies and procedures to avoid potential 
problems. While some errors occur, the case against polygraph 
is overstated. While the critics sometimes portray polygraph 
examiners in unflattering terms, the truth is, the quality and 
the abilities of each individual examiner is the critical 
difference and is what makes these programs work.
    I have provided the Committee with a statement for the 
record, which I would now like to read during my time period.
    Espionage is occurring in government agencies. Polygraph is 
one of several tools available that can be used as an internal 
control to prevent espionage and to identify spies. It is my 
opinion that in a security screening polygraph examination, 
Robert Hanssen would have reacted with greater than a 99 
percent. Because, statistically speaking, others taking the 
test may also react but not be guilty, other internal control 
measures, such as FBI investigative resources, would need to be 
coupled with the polygraph results before certifying espionage 
activity. Evaluating whether or not security screening should 
be implemented requires an understanding of what the predicted 
polygraph outcomes would be and evaluation of what has already 
occurred in existing programs and the costs involved.
    A realistic appraisal of the polygraph requires an 
understanding of its capabilities and limitations. When making 
decisions based on polygraph results, one must factor in the 
confidence levels of the various outcomes. Security polygraph 
examinations must be objectively conducted and evaluated. The 
examiners must be able to determine the effectiveness of the 
official testing and know when retesting is warranted.
    For example, false positives can occur. This is when people 
react to the question but are, in fact, telling the truth. The 
skill of the examiner is essential in recognizing the 
possibility of a false positive and the need to take additional 
measures, such as retesting. Polygraph is not a perfect 
science, but in my opinion, it is a very valuable tool to 
ferret out those who would commit espionage against the United 
States.
    How much confidence can we have in a single security 
polygraph examination? Confidence starts with validity. An 
estimate of validity can be established from laboratory studies 
and by projecting the experiences of actual testing. Next, you 
need to estimate the base rate, or the percentage of the 
population that bears the characteristics we are seeking, in 
other words, spies. Prior studies indicate the polygraph has an 
accuracy range between 90 and 99 percent. Estimates of the 
number of spies in any organization vary. My estimate in 1994 
was there might be a maximum of three spies in a population of 
10,000.
    Based on the results of scientific studies, when conducting 
a screening polygraph, you have a high confidence, 99.99 
percent confidence, your decision is clear, is correct. In 
other words, the error rate with people who pass the test is 
minuscule. On the other hand, when a person registers deceptive 
or specific reactions, the confidence in that outcome decreases 
to approximately 2.9 percent. This occurs because, 
statistically, a large percentage of deceptive reactions will 
be false positives on an initial test.
    In the interest of time, I will skip ahead on my paper and 
state that I assumed on the initial examination, five to 10 
percent of the population would not successfully complete it 
and would require reexamination, which I believe will resolve a 
substantial number of these cases and reduce the percentage of 
false positives. On the unresolved, substantial resources would 
have to be expended to clear up.
    Countermeasures was mentioned. That is overstated. I 
believe the laboratory overstates the effectiveness of 
countermeasures. The psychological dynamics of actual testing, 
as well as anti-countermeasures used in the field, are 
overlooked when assumptions are made regarding how effective a 
countermeasure would be. Also, in order for countermeasures to 
be effective, they must remain classified.
    There has been criticism in the past that polygraph 
screening programs just routinely pass everyone and that the 
effort is symbolic, only to create a false sense of security. 
Experts in the field of polygraph have spent considerable time 
conducting studies and have determined various statistical 
probabilities based on scientific modalities. Therefore, by 
analyzing a specific polygraph program's prior testing results 
and comparing these results to the statistical probabilities, 
one could determine if a polygraph program was effective or 
ineffective.
    Conclusion: The use of the polygraph is an aid to 
investigations and not a substitute for investigations as a 
well established policy. To solve an extremely difficult 
investigative and security problem requires the use of internal 
controls and the use of all investigative tools. I believe a 
well-managed polygraph program is part of the solution to that 
problem. Thank you very much.
    Chairman Hatch. Thank you so much.
    [The prepared statement of Mr. Keifer follows:]

  Statement of Richard W. Keifer, Past President, American Polygraph 
                      Association, Apopka, Florida

    Espionage is occurring in government agencies. Polygraph is one of 
several tools available that can be used as an internal control to 
prevent espionage and identify spies. It is my opinion that in a 
security screening polygraph examination, Robert Hansen would have 
reacted with greater than 99% certainty. Because, statistically 
speaking, others taking the test may also react but not be guilty, 
other internal control measures, such as FBI investigative resources, 
would need to be coupled with the polygraph results before certifying 
espionage activity. Evaluating whether or not a security-screening 
program should be implemented requires an understanding of what the 
predicted outcomes would be, an evaluation of what has already occurred 
in existing programs, and the costs involved.
    A realistic appraisal of the polygraph requires an understanding of 
its capabilities and limitations. When making decisions based on 
polygraph results, one must factor in the confidence levels of the 
various outcomes. Security polygraph examinations must be objectively 
conducted and evaluated. The examiners must be able to determine the 
effectiveness of the initial testing, and know when retesting is 
warranted. For example, false positives can occur. This is when people 
react to the question, but in fact are telling the truth. The skill of 
the examiner is essential in recognizing the possibility of a false 
positive, and the need to take additional measures, such as retesting. 
Polygraph is not a perfect science but, in my opinion, it is a very 
valuable tool to ferret out those who would commit espionage against 
the United States.
    How much confidence can we have in a single security polygraph 
                              examination?
    Confidence starts with estimates of validity. An estimate of 
validity can be established from laboratory studies and by projecting 
the experiences of actual testing. Next, you must estimate the base 
rate, or the percentage of a population that bears the characteristic 
we are seeking. Prior studies indicate that the polygraph has an 
accuracy rate between 90% and 99%. Estimates of the number of spies in 
any organization vary. My estimate in 1994 was there might be a maximum 
of 3 spies in a population of 10,000.
    Based on the results of scientific studies, when conducting a 
screening polygraph, you will have high confidence (99.99 %) on 
decisions to clear people. In other words, the error rate on those who 
pass the test is very miniscule. These conclusions are labeled no 
deception indicated (NDI) or no specific reactions (NSPR). On the other 
hand, when a person registers deceptive (DI) or specific reactions 
(SPR) on the exam, the confidence level decreases to 2.9%. This occurs 
because statistically, a rather large percentage of the deceptive 
reactions will be false positives on the initial test. The benefit of 
polygraph screening, at this point, is that you will identify a smaller 
pool of people who ``potentially'' could be committing espionage. It is 
then possible to concentrate your security resources by applying other 
internal control measures, such as investigation, to the smaller group 
who reacted on the test. Additional polygraph testing and investigation 
should reduce the number of potential spies even further. Actual 
testing results should help us identify how many unresolved cases exist 
and the costs of resolving them.
    Traditionally, reexaminations have been part of clearing those who 
react on their first examination, and are presumed to effectively 
reduce the number of false positives. The DOD annual report suggests 
that most of these reactions are cleared through admissions. It is 
likely a number of security violation type of admissions would be made 
and would be resolved. It is also likely a number would not, however 
skilled interviewers might still might uncover the spy. In my opinion 
even with high validity assumptions, 5 to 10 % of your population will 
not successfully complete the initial examination. Subsequent 
reexaminations should resolve a number of cases and reduce these 
percentages. Substantial resources would have to be expended on any 
unresolved cases.
                            countermeasures
    The danger from countermeasures, while real, is overstated. I 
believe laboratory studies overstate the effectiveness of 
countermeasures. The psychological dynamics of actual testing, as well 
as anti-countermeasure methods used in the field, are overlooked when 
assumptions are made regarding the effectiveness of countermeasures. In 
order for the anticountermeasure methods to be effective, they must 
remain classified.
                    polygraph program effectiveness
    There has been criticism in the past that polygraph-screening 
programs just routinely pass everyone and that the effort is symbolic 
only to create a false sense of security. Experts in the field of 
polygraph have spent considerable time conducting studies and have 
determined various statistical probabilities based on scientific 
modalities. Therefore, by analyzing a specific polygraph program's 
prior testing results and comparing these results to the statistical 
probabilities, one could determine if that specific polygraph program 
is effective or ineffective.
                               conclusion
    The use of the polygraph as an aid to investigations and not a 
substitute for it is a well-established policy. To solve an extremely 
difficult investigative and security problem requires the use of 
internal controls and the use of all investigative tools. I believe a 
well-managed polygraph program is part of the solution.

    Chairman Hatch. I am going to turn over the Committee to 
Senator Specter, who will ask my questions and other questions, 
as well. I just want to thank each of you for being here. 
Because of my schedule, I am going to rely on Senator Specter 
and Senator Durbin to ask the appropriate questions, but this 
has been a very interesting hearing for me and we, appreciate 
all of you being here.
    Senator Specter, I turn the time over to you.
    Senator Specter. [Presiding.] Thank you very much, Senator 
Hatch, Mr. Chairman. Let us set the time clock for 10 minutes 
as a guide to our rounds.
    I regret not being here earlier. I chair the Subcommittee 
on Labor, Health, Human Services, and Education and had 
attempted to have this hearing set for 11, so we may have to 
re-cover some of the ground.
    Mr. Keifer, you testify that polygraph results are accurate 
90 to 99 percent of the time, is that correct?
    Mr. Keifer. That is correct.
    Senator Specter. And what is your basis for that 
statistical conclusion?
    Mr. Keifer. I have looked at the results of the research 
done by the Department of Defense and I have also made a 
projection based on my experiences in real testing in terms of 
discovering errors and working backward. In other words, I have 
spent time looking at how many mistakes we have made.
    Senator Specter. Starting with the Department of Defense, 
what is their scientific study and empirical result?
    Mr. Keifer. Yes.
    Senator Specter. What is it?
    Mr. Keifer. They have several involving the test for 
espionage and sabotage, and the latest one, I think, showed a 
98 percent accuracy rate in the detection of innocent people.
    Senator Specter. In the detection of innocent people?
    Mr. Keifer. Yes. It was less accurate in the detection of 
spies. That is a laboratory study.
    Senator Specter. Well, how accurate was it in the detection 
of spies?
    Mr. Keifer. I think it was correct around 80 percent of the 
time, and I have those figures in my briefcase, sir.
    Senator Specter. How do you know that it is accurate 80 
percent of the time?
    Mr. Keifer. How do I know that that study is accurate 80 
percent of the time, or real----
    Senator Specter. What is the basis for professional 
judgment that the polygraph is reliable 80 percent of the time?
    Mr. Keifer. It is experience in conducting tests and being 
involved in over 20,000 FBI investigations.
    Senator Specter. You have been in 20,000 examinations?
    Mr. Keifer. Either conducting them or reviewing them.
    Senator Specter. When you conduct or review an examination 
and a person does not display any indicators of unreliability, 
then you conclude that the person has answered the questions 
correctly?
    Mr. Keifer. I would have a high confidence in that 
conclusion, yes.
    Senator Specter. Now you say a high confidence. Is that 
different from a conclusion that the person was honest in the 
answers?
    Mr. Keifer. It is. You have to make a decision. You know 
there could be some error in it. In the case of clearing on a 
polygraph, it is very little and very comfortable in making 
that decision.
    Senator Specter. Well, I do not see how you come to the 
conclusion on 80 percent because of the difficulty of knowing 
whether the person has told the truth. The person may not have 
told the truth and may pass the test and there is no evidence 
or extrinsic way of determining that the person has, in fact, 
told the truth. The person may have concealed information.
    Mr. Keifer. If we are talking about the counterintelligence 
type of test, where you are trying to uncover espionage, there 
is very little data out there on how many people are actually 
committing it. I mean, you have a very small number, and so you 
would almost--only a lot of investigation would uncover those 
people. If you have other areas where you are testing where the 
base rate or frequency of the event is much greater, then you 
are likely to obtain information from them to help verify your 
decisions.
    Senator Specter. Well, I want to come to your point that 
you estimate there are three spies in a population of 10,000, 
but before coming to that, I am trying to come to grips with 
the validity of a conclusion that a polygraph is reliable 90 to 
98 percent of the time. I just do not see how you get there. 
You measure the responses. There are some indicators of 
deception. If a person passes it, they may have been lying to 
you. The only way you would know that is if you know the 
person's background and have some comprehensive way of 
establishing whether the person did or did not do the things 
they represented.
    Mr. Keifer. First, in the laboratory study, you know the 
correct answers, all right, so whatever you get on a polygraph, 
you can validate against whatever role that person was in the 
study.
    Senator Specter. How do you know the correct answers if you 
are----
    Mr. Keifer. Well, in a study, they are preassigned. Certain 
people are assigned to be guilty and lie. Others are not 
deceptive and then they are sent in blind for an examiner to 
test and evaluate to see if he can find out what role they are 
playing in the study. Then the question becomes, how much do 
those studies replicate real-life testing?
    What we did in the FBI, since it is difficult to establish, 
is, one, you would have some deceptive results verified by 
confessions. Some you would not. We conducted an error study 
where we canvassed everybody in the FBI to report any error 
that you have ever noted on a polygraph or even think was made 
because we wanted to get to that very bottom-line question, how 
accurate is it in real-life testing? The results of that error 
study came back at less than a percent they thought we were 
making mistakes on.
    In experience over years, you get feedback oftentimes if 
you are making errors in cases. I have not received the 
feedback from any source that that number of errors, a 
significant number of errors is being made in polygraph 
testing.
    Senator Specter. I do not know what the absence of the 
feedback shows, but let me turn to you, Mr. Capps. What is your 
professional judgment as to the accuracy of polygraph 
examinations?
    Mr. Capps. In a specific issue test, where we are testing 
for a single issue--did you steal that missing document?--the 
research demonstrates that it is about 90 percent accurate. 
When we are talking about screening, we are talking about less 
accurate. Let me try to give Mr. Keifer some help----
    Senator Specter. To stick with specific issues----
    Mr. Capps. Yes, sir?
    Senator Specter.--what is the scientific basis for a 
conclusion of 90 percent accuracy?
    Mr. Capps. There are a number of studies, sir, that have 
been published in both scientific and trade journals where 
hundreds of subjects have been studied over a period of years, 
primarily in field examinations where they are based on 
confession or in laboratory studies, as well.
    If I may, let me explain the laboratory study just a bit. 
What we might do in a laboratory study is recruit people out of 
a newspaper--by newspaper to participate in the study. We would 
ask them to meet someone who they believe is a case officer. 
The case officer would tell them to go to a Federal building to 
go into a particular office to go to a classified computer, or 
computer they believe is classified, to take a disk from that 
computer that says ``classified'' on it and then to destroy 
that disk and put it in an envelope. So there is some degree of 
realism in what they are told to do.
    We know what group has been programmed to do this. This is 
the deceptive group. And then we have another group who is not 
told to do those things, so this is the truthful group. So we 
have ground truth in the laboratory studies where we can 
determine who is supposed to be deceptive and who is not 
supposed to be deceptive.
    So when Mr. Keifer talks about an 80 percent accuracy rate, 
he is talking about based on that type of scenario.
    Senator Specter. Mr. Zaid, what is your thinking about 
these studies and the representation of 90 percent accuracy?
    Mr. Zaid. I obviously do not agree with them, Senator 
Specter. You have studies, of course, that go the other way. 
But I think the key issue here is to look in the screening 
context. When we are talking about exposing espionage or 
sabotage or counterintelligence issues, we are talking about a 
screening format test.
    The Defense Department Polygraph Institute has done very 
few studies on this, and the studies that have been done, 
including this major study in 1989, actually reflects that 
screening methods do not work, that up to 66 percent of those 
who are actually lying or guilty are not found and that a great 
number of innocent people are accused. The government 
scientists or the government experts that have worked on these 
studies have almost consistently and unanimously said that 
screening tests do not work and should not be used.
    Senator Specter. Mr. Keifer, do you disagree with what Mr. 
Zaid interprets that 1989 study to be? Are you familiar with 
the 1989 study that he referred to?
    Mr. Keifer. I have seen that study. The results speak for 
themselves. I think it is dated and I do not think it reflects 
current methodology in the field.
    Senator Specter. Nineteen-eighty-nine is dated?
    Mr. Keifer. In terms of what--there is more recent research 
out on it.
    Senator Specter. Well, has the methodology changed in the 
intervening 12 years?
    Mr. Keifer. Different types of testing--there are different 
formats for different types of testing and some of those have 
changed over time. I am aware of the results of that study and 
there--it does not speak well of the screening.
    Senator Specter. You are aware of the study and it does not 
speak well for what?
    Mr. Keifer. Well, there is very low accuracy rates they 
attained in that study, but I haven't reviewed that one 
recently.
    Mr. Zaid. Senator, if I could just add one quick thing 
about Mr. Hanssen's case, as Mr. Keifer said about the 99 
percent that he would have shown deception, you know, it is 
easy to look back in retrospect, but let us take a moment to 
take a look at that. If Mr. Hanssen had taken a screening test 
at some point during his career and showed either deception or 
an inconclusive reading, there would have been a further 
background investigation or check into his activities.
    Now, from what at least has been reported publicly, it does 
not look like anything would have been found out. Mr. Hanssen 
has been sort of an enigma compared to other spies like Mr. 
Ames, who, if you had done a background check into his 
financial, you would have found out certain things. So he might 
as well have just fallen into the same false positive rate, 
which, as I think you were in the room when I said it, Attorney 
General Ashcroft says that there is a 15 percent false positive 
rate.
    Innocent people, current Federal employees, will be accused 
of wrongdoing, and as a result, they are going to be put into 
administrative limbo, and I think no matter how many times you 
want to say or how many studies you want to cite that says, 
well, that will ultimately be cleared up, if you think that 
does not impact on these people's career, then you are just on 
another planet here. The problem is, there are no safeguards 
within the system. It might be on paper, but in reality, there 
are no safeguards to protect those who are falsely accused. So 
you need to balance this.
    Senator Specter. I would like to come back to you, but the 
red light has been on during the course of your answer. Let me 
yield now to Senator Durbin. Go ahead, Mr. Zaid.
    Mr. Zaid. That was actually the conclusion of it, sir.
    Mr. Iacono. Senator Specter, if I may, I could make a 
comment on this.
    Senator Specter. Go ahead.
    Mr. Iacono. I just have here the Department of Defense 
Annual Report to Congress for Fiscal Year 2000, and the test 
that is being discussed is being used to detect espionage and 
sabotage is called the TES, the Test for Espionage and 
Sabotage, and reading from the government's report, it says 
there have been two previous research studies on the test, 
which indicated that the test had an accuracy rate in the range 
of 80 to 90 percent. However, the sample sizes were rather 
modest. The subsequent study with a larger sample did not 
produce accuracies as high.
    That is reading right from the government's own report. I 
do not know if Mr. Capps could explain what the lower 
accuracies are. I do not know what they are. But the 
government's own data supports accuracy rates of 80 to 90 
percent, and then a subsequent larger study apparently did not 
fare as well. This was----
    Senator Specter. Did the subsequent larger study specify 
what the accuracy rates were?
    Mr. Iacono. In this report, there is no discussion of the 
study at all, just that sentence that explains that the results 
apparently were disappointing.
    But what I would like to say in addition is that these 
studies that we are talking about are laboratory studies and I 
think it is ill advised to make conclusions about the accuracy 
of polygraph testing in the field based on laboratory work. 
There are several reasons for this, but one has to do with the 
fact that in real life, the stakes are very different than they 
are in a laboratory study, where a volunteer research subject 
is told to pretend they are engaging in an act of espionage and 
then we try and determine whether or not they are doing it.
    In real life, if somebody is engaging in espionage, they 
are going to be clever enough to figure out how to do that 
well, and probably if they understand that they may have to 
pass a polygraph test, clever enough to figure out how these 
tests work and what they can do to foil the outcome of the 
test. Because a polygraph test involves two types of questions, 
a relevant question and a control question, all a spy would 
need to do is learn how to augment the response, 
physiologically augment the response to the control question, 
and this can be done by doing simple things, such as thinking 
stressful thoughts or biting your tongue right before you 
answer this question. And there are published research studies 
in top scientific journals that show that people can learn how 
to adopt these techniques and fool experienced polygraph 
examiners, who not only cannot tell they are guilty in beating 
the test, but also they cannot tell they are using these 
procedures.
    It is also the case that in real life, when people are 
confronted with the accusation of espionage, this is a 
threatening, arousing accusation. So an innocent person in real 
life is not anything like an innocent person in a laboratory 
study. If you are in a laboratory study and you are told you 
are suspected of make believe espionage, this is not a threat 
to you. It is not a threat to your career. But in real life, 
when you undergo one of these tests, you are, in effect, being 
accused with something that is very important to you. It is a 
threat to your patriotism and to your well-being by implication 
that you might be found guilty.
    Just as when you are justly accused of something, you 
blush, your heart races, your palms sweat, but when you are 
unjustly accused of something, you blush, your heart races, 
your palms sweat. A polygraph test can measure these types of 
things, and an unjust accusation can produce the same type of 
arousal as a just accusation that is met with a denial, and 
that is why innocent people in real life are more likely to 
fail a polygraph test than they are in laboratory studies.
    So I think it is very important if we are going to talk 
about the accuracy of these tests that we talk about them with 
situations that are very similar to those in real life or that 
ideally would involve real life cases and not make believe 
cases in laboratory settings.
    Senator Specter. Senator Durbin?
    Senator Durbin. Thank you very much, Mr. Chairman.
    It is interesting, as I reflect on the larger issue here, 
that I think throughout the course of human history, we have 
always been looking for a test of truthfulness. In primitive 
times, it might have been a physical test, whether you could 
endure some sort of a test of your survival as to whether or 
not you were truthful or blessed or whatever the 
characterization might be. Historically, when it comes to our 
system of jurisprudence, the test is whether or not a jury 
believes it or not, and now I think we have found in more 
modern times that we look for an objective, mechanical means to 
determine a person's voracity.
    As an attorney, I never advised clients to take a 
polygraph. I just did not believe in them. I still do not. They 
are largely inadmissible in most courts of law. I think the 
Federal Supreme Court has ruled, and others have, as well, that 
they are not admissible. Perhaps State and local courts can 
reach other conclusions, and there are a variety of reasons for 
that.
    I guess some feel that if a jury saw a polygraph test, they 
would think, well, that is really the good measure of 
truthfulness and we do not have to reach our own conclusion, 
and some who just question whether the science is reliable at 
all.
    I take it, Dr. Iacono, you speak about the fact that this 
is so subjective, that polygraph testing is subjective, that 
the examiner is really establishing the parameters of the 
questions, what is truthful, what is not, what is a 
physiological response that is worthy of note and what is not. 
I have always thought the same thing. Though we tend to say 
that this is an objective test, there is a lot of subjectivity 
involved in it. Is that the point that you were making in your 
testimony?
    Mr. Iacono. Yes, it is. There is a lot of subjectivity. In 
fact, a lot of people would disagree that it should even be 
designated as a test, because a test, at least as psychologists 
use this term, would refer to a standardized procedure that 
leads to an objective outcome, and polygraph testing is not 
standardized and it is not objective.
    There is one aspect of a polygraph test where there is an 
effort made at standardization and this is in the actual 
scoring of the physiological data. But the scoring of the 
physiological data alone does not often determine the outcome 
of the test, that is, what the examiner's verdict is as to 
whether the person is truthful or deceptive.
    And, in fact, we have done studies--I have done studies 
myself where we have compared the examiner's verdict to what 
the actual physiological data says in the polygraph charts. 
What we have done is had the charts blindly scored by people 
who are unaware of the case facts and then make a determination 
using the standard scoring procedures of whether the person 
appeared truthful or deceptive and then compared that to the 
actual examiner's verdict, and we found substantial variation 
between the two. The examiners often play hunches and go 
against what is in the charts.
    We can tell from the government's own testing policy--
again, in this Annual Report to Congress, it is pointed out 
that the government gave almost 8,000 counterintelligence scope 
polygraph tests, and out of these 8,000, only 200 people, 
approximately, yielded significant responses to relevant 
questions. This is a minuscule number, and despite what Mr. 
Keifer said, there is basically no evidence that polygraph 
testing is anywhere close to 90 percent accurate. Ninety 
percent would be the upper limit that even staunch scientific 
proponents of polygraph would argue in terms of accuracy, and 
many people would see the accuracy as substantially less than 
that.
    If the test was 90 percent accurate and you test 8,000 
people, then you would have to have closer to 800 people 
failing the test, but we only get a couple of hundred. So we 
know that examiners, when they are giving these people these 
tests, they are making adjustments to how they are interpreting 
the data that they get from the polygraph tracings and 
determining that a lot of people are, in fact, probably 
truthful when the charts would actually indicate that they are 
not.
    Senator Durbin. Mr. Keifer, let me ask you as a follow-up, 
if these tests are generally not admissible in court because of 
the fact that courts have questioned whether or not they are 
reliable, should we then subject a person's career or the 
suggestion to the American people that we are establishing a 
safeguard for their security to the, I guess, the reliability 
of the test?
    Mr. Keifer. If your question is, should we use a polygraph 
to uncover a spy, my answer is yes.
    Senator Durbin. Of course, we would like to uncover spies. 
The question is, is this test a reliable way to uncover a spy 
if, in fact, most courts have said you do not bring it in the 
courtroom, we do not think that it is reliable enough to be 
brought in the courtroom. And yet, we are really putting a lot 
of faith in it, are we not, in terms of determining whether a 
person can or should continue to be working for the government, 
should be entrusted with the most important secrets----
    Mr. Keifer. Polygraph is one of the tools that should be 
used to make that determination. It should not be the only 
tool.
    Senator Durbin. But, let me ask you, if you are going to 
use this tool, how much confidence can you have in a test that 
has so much subjectivity involved in it? Do you concede the 
point that the examiner has a great deal of subjectivity in 
choosing the questions, measuring the responses?
    Mr. Keifer. I would like to explain that or offer 
explanations for that.
    Senator Durbin. Certainly. Please.
    Mr. Keifer. Tests are generally standardized and the 
protocols of administering those tests are fairly uniform. 
There will be some individual variability by any given examiner 
during a test, and it is suggested that that is causing a lot 
of errors and problems in the testing. I do not think so. There 
are fairly uniform procedures used by examiners throughout the 
field.
    Senator Durbin. So you really discount the subjectivity of 
this in terms of the intensity of the questions, the types of 
questions, the repetition of questions? You say this is all 
fairly standard?
    Mr. Keifer. If you take the area of counterintelligence 
screening, which is what I think we are talking about here 
today, yes, it is a very standardized type of testing and the 
questions are pretty uniform. If you go into another area of 
criminal-specific testing, the examiners are given greater 
leeway to formulate individual questions.
    Senator Durbin. Let me ask Mr. Zaid, if I might, if he 
could follow up on these questions in reference to what do you 
think might be acceptable parameters of error in this testing 
if we are going to rely on it.
    Mr. Zaid. You have identified some of the key problems, 
Senator. For applicants, a polygraph is the sole determinative 
factor. You flunk your polygraph--these are people not just who 
are applying to the agencies, all of the agencies, but have 
been given conditional job offers. They have already gone 
through a battery of tests, interviews. They are generally the 
top of the crop. Many times, they are law enforcement from 
State agencies or even other Federal agencies, highly 
recommended, but they have to go through a drug test, the 
psychological test or psychiatric test, running, et cetera, and 
a polygraph, and then a background investigation. If you fail 
the polygraph, you are out. That is the end of it.
    Now, it is a little bit different for current employees 
because there are regulations that forbid adverse personnel 
actions directly on the basis of the polygraph. But as I 
mentioned before, that does not necessarily mean that as a 
legal matter, it is not an adverse personnel action. They stay 
at the same pay grade. They can stay in their job. But the fact 
is, their career is over, and many times they often resign. And 
I have in my written testimony specific examples of polygraph 
abuse, where people have been investigated for years at a time, 
finally are exonerated, but quit in disgust because they are so 
disenchanted with the government.
    The one Supreme Court case that I think you are mentioning, 
the Scheffer case, which was an Air Force case, Justice Thomas 
actually, and I cannot remember the other justice who made the 
comment, but were somewhat disenchanted by the government's 
inconsistency, because the Justice Department came into that 
case and advocated against use of the polygraph. The defendant 
in a criminal case wanted to admit it because he passed. It was 
good for him, obviously.
    But the Justice Department came in and provided testimony, 
sworn affidavits from the FBI, that polygraphs were unreliable, 
they should not be used, and Justice Thomas was, like, well, 
how do you reconcile that, then? You are using this to make 
these security determinations on people's careers, yet when it 
is against your interest, you argue against it. And that is 
really the staunch problem here.
    Obviously, everybody wants to root out spies. We all want 
to protect our Nation's security. But we are doing so at the 
cost of harming very loyal and truthful individuals who work 
for our government at the same time.
    Senator Durbin. Mr. Chairman, I thank you for this hearing. 
I have not thought about this issue a lot since I practiced 
law, but it has come up more and more and I think part of it 
has to do with our concern over national security. I think part 
of it has to do with the fact that we are looking for a quick 
fix here. We are trying to find some machine that is going to 
solve our problem. I do not think this is the machine. Thank 
you.
    Senator Specter. Thank you very much, Senator Durbin.
    Do any of you gentlemen know if any courts have ever 
admitted polygraph results? Mr. Keifer?
    Mr. Keifer. Yes. The Federal courts in New Mexico.
    Senator Specter. Anything else?
    Mr. Keifer. The Galbraith decision.
    Senator Specter. In New Mexico?
    Mr. Keifer. Yes. I am not sure what Federal district it is 
in New Mexico, but it is admitted in Federal court.
    Senator Specter. The Federal court admitted a polygraph?
    Mr. Keifer. Yes, sir.
    Senator Specter. In how many cases, if you know?
    Mr. Keifer. It is the Galbraith decision is the one that 
admitted it. I do not know any subsequent where it was used. I 
do not know one way or the other, if they did or----
    Senator Specter. And the reasoning of the court was that 
the polygraph was sufficiently reliable as an evidentiary 
matter to come into evidence?
    Mr. Keifer. Yes, Senator. That was the holdings.
    Senator Specter. Mr. Smith, you have had a very long career 
with the general counsel at the CIA, and served on national 
security studies. Based on your experience with the so-called 
Blue Ribbon Commission, what is your judgment as to the 
accuracy of polygraphs in counterintelligence screening?
    Mr. Smith. I do not have a number, Senator, as to what the 
percentage of accuracy is. I defer to the others on this panel 
that have studied it. I personally am skeptical about the 
degree of accuracy. It is only a useful tool, and I do not 
think--frankly, I am not sure that we will ever be able to come 
up with a definitive number as to the actual accuracy.
    Senator Specter. A useful tool? In what way?
    Mr. Smith. It is a useful tool as an aid to interrogation, 
and as I said in my opening statement and believe very 
strongly, I do not believe that any adverse personnel action 
should be taken solely on the basis of the results of a 
polygraph exam.
    Senator Specter. Is it a useful tool beyond the frequent 
occurrences where someone is given a polygraph and the person 
breaks down and confesses because of a view that the polygraph 
is going to expose him or her?
    Mr. Smith. In my experience, Senator, what typically 
happens is if in a polygraph examination a person responds to a 
question and the examiner says, ``I have noticed a reaction to 
this question, is something bothering you?'', sometimes the 
person will admit to something which is valuable from either a 
criminal or counterintelligence point of view. Sometimes, they 
will not. Sometimes that then leads to subsequent 
investigation.
    Senator Specter. Well, if the person makes an admission, 
that is obviously beneficial, providing there is further 
investigation to corroborate the admission. I have seen that 
happen with some frequency as District Attorney of 
Philadelphia, and there the polygraph was useful because it 
scared people into telling the truth, in effect. But beyond 
that, what is its utility in an interrogation, Mr. Smith?
    Mr. Smith. I do not believe it has any utility beyond 
precisely that, Senator.
    Senator Specter. Mr. Keifer, how do you respond to what Mr. 
Iacono, Professor Iacono, has said about the very substantial 
differences between a real life situation and a test situation?
    Mr. Keifer. I agree with him, that those differences could 
be significant, but I disagree with the conclusions he is 
drawing about what would occur in real life testing based on 
the experiences I have had in that testing. I have found that 
when you have implemented a screening type of polygraph 
situation, people do not come into the room feeling like you 
have challenged their loyalty. They come in more with an 
attitude of, ``I am willing to do what it takes to help uncover 
a spy.'' And so you do not have this body of fearful, innocent 
people who are going to be reacting in great numbers and thus 
becoming false positives.
    Senator Specter. On the testing, where you set up what is, 
in effect, a contrivance, or did I misunderstand the kind of 
tests you have?
    Mr. Keifer. I am sorry, I did not understand.
    Senator Specter. When you say you have controlled 
circumstances where people are instructed to do something and 
then they are questioned about it, that is not a real life 
situation where the person has done something and is tested on 
it. He----
    Mr. Keifer. That is absolutely correct. There are different 
psychological dynamics.
    Senator Specter. So that is sort of a game. Here, you are 
going to do X, Y, and Z, and then you are going to be tested on 
it. It does not really matter what comes out of it.
    Mr. Keifer. I think it may be predictive of what you can 
occur or find in actual testing. I think it is a predictor. I 
mean, I do not think real life testing will be less accurate 
than a study.
    Senator Specter. I am skeptical of that, and, of course, 
the purpose of the hearing is to try to get you experts to tell 
us what your experiences have been. But I am skeptical of it 
because if you say to a person, you are going to go through 
these activities, then we are going to bring you back in and 
find out if you tell the truth on what happened on these 
activities, it does not matter much to them. They are really 
playing a game. They are guinea pigs, in effect.
    Mr. Keifer. It depends----
    Senator Specter. There are no serious personal consequences 
as to what their answers are.
    Mr. Keifer. That is correct. There is no personal 
consequences, but the effort in those studies is to make it 
appear as realistic as possible. That is why it is dangerous to 
sometimes project that the validity of polygraph should be 
based on those kinds of studies and not take into account 
actual testing experience.
    Senator Specter. Well, if you give a polygraph to a person 
and they pass it, and you later find out that what they told 
you was a lie, then you have a statistic where the polygraph 
did not work. If they pass it and you have no more feedback, 
they could have been telling the truth or they could have been 
lying. It is just not possible to know everything in that 
person's background as to whether they told you the truth. If 
they fail a polygraph and you later investigate and find out 
that they did not commit an offense, then you know that it is 
inaccurate.
    Mr. Keifer. There may be other ways of verifying that. 
There may be other people tested in the same case, one of which 
may be deceptive and you may uncover the truth there that would 
validate those people who you claim do not react.
    Senator Specter. You may or may not be able to find out the 
facts to show that it is accurate. When you emphasize the 
quality of the polygraph examiner, that is a very important 
point. You are the President of the Association.
    Mr. Keifer. Former.
    Senator Specter. Former, Past President of the American 
Polygraph Association. There are doubtless all levels of 
competency as you go to move away from, say, the chief 
polygraph examiner for the FBI, who presumptively is very well 
qualified, to some assistant polygraph examiner in Wichita, 
Kansas. I do not mean to disparage Wichita. I just pick out my 
hometown, place of birth.
    Mr. Capps, you are with the Department of Defense and you 
are an expert here. How do you evaluate the studies which have 
established reliability at 90 percent?
    Mr. Capps. Sir, we will never know the validity of 
polygraph because, as Dr. Iacono said, the level of 
emotionality, if I am quoting you right, the level of 
emotionality in laboratory studies is not what we would 
experience in a real field setting and we could never----
    Senator Specter. You tend to downplay the validity of 
laboratory studies?
    Mr. Capps. Yes, sir. Yes, sir, I do.
    Senator Specter. Well, what is your professional judgment 
as to how accurate polygraphs are?
    Mr. Capps. There is really no way to make that 
determination because the level of emotionality is less in a 
laboratory and we can never really know true ground truth in a 
field setting. We can only approximate that.
    Senator Specter. So you do not think there is a level of 
reliability that you can depend on?
    Mr. Capps. I think that polygraph, based on the multitude 
of studies that have been published in scientific and trade 
journals, has a very high degree of validity, but as to 
determine what that number is, I have no idea.
    Senator Specter. Why do you think there is a high degree of 
reliability?
    Mr. Capps. Because it has been replicated so many times 
with consistent results. Those studies have been replicated 
many times.
    Senator Specter. The studies have been replicated?
    Mr. Capps. Yes, sir.
    Senator Specter. But how about the emotionality factor, the 
word you use? It is present in all those studies.
    Mr. Capps. Yes, sir. What that means, simply, is that we 
should not get high levels of correct decisions on deceptive 
people because they should not be responding at high levels. We 
do, in fact, in many cases get high levels in deceptive people 
and even higher levels on truthful people.
    Senator Specter. Well, if you get higher levels of 
emotionality on truthful people, then they do not pass the 
test.
    Mr. Capps. As a matter of fact, sir, when people on this 
panel have been talking to you about false positives, the DoD 
report to Congress simply does not show that to be true. When 
we test 8,000 people a year and we only have five or six at the 
end of that 8,000 testing that have been determined to be 
deceptive with no reportable information----
    Senator Specter. Well, how do you know the others are not 
deceptive? You have a few shown to be deceptive, but that does 
not answer the question as to whether those not shown to be 
deceptive are, in fact, not deceptive.
    Mr. Capps. You are right, sir. What I am saying is we are 
not calling people deceptive in large numbers like has been 
inferred here today.
    Senator Specter. Would you amplify that last statement? I 
did not understand it.
    Mr. Capps. Yes, sir. The DoD report to Congress 
demonstrates that we are not calling people deceptive in large 
numbers, like some members of the panel have inferred is 
happening.
    Senator Specter. OK. We are not calling them deceptive, but 
we do not know whether they are deceptive or not. You are not 
calling them deceptive unless you are sure, which is fine. That 
is the presumption of innocence and that is the American way. 
But that does not deal with the reliability of the polygraph 
because there may be a lot more deceptive people out there that 
you are not catching.
    Mr. Capps. That is true, sir.
    Senator Specter. Mr. Keifer, what is the name of that case 
again in New Mexico in the Federal court?
    Mr. Keifer. Galbraith.
    Senator Specter. Galbraith. Do you have a citation on it?
    Mr. Keifer. I can give it to you.
    Senator Specter. Can you? Do you know of any other court 
which has admitted polygraph, Mr. Zaid?
    Mr. Zaid. It has varied, Senator, and I am trying to 
remember the facts in that specific case. Some States have per 
se bans on admissibility. The military has a per se ban. The 
Scheffer case I mentioned in 1998 from the Supreme Court----
    Senator Specter. My question was, do you know of any cases 
where they have admitted the polygraph?
    Mr. Zaid. It has, and I will give you--off the top of my 
head, case names, I do not have. I have it at the office. I 
will be glad to send it to your staff.
    Senator Specter. I would like to see them. I would like to 
do a review of those cases to see what the rationale of the 
court was.
    Mr. Zaid. Well, many of the cases are when both parties 
agree, the prosecution and the defense, when both parties 
stipulate. Then courts have said, well, I am not going to stand 
in the way and we will allow it in.
    Senator Specter. That is not very persuasive. The issue is, 
to what extent have courts admitted polygraphs on the 
determination of sufficient reliability to be evidentiary.
    Mr. Zaid. Not nearly--I want to say very rarely, but I will 
say that most courts typically do not allow the admissibility.
    Senator Specter. I would like to know if you have specific 
cases.
    Mr. Zaid. I will be happy to send that to your staff later 
today.
    Senator Specter. I have seen a fair number of polygraphs. 
Two stand out in my mind. We had a very celebrated citizen of 
Philadelphia named Frank Rizzo, who was the police 
commissioner, and he got into an argument, which I will not go 
into the details of, and there was a lie detector test 
administered by the Philadelphia Daily News, and the 
commissioner and later--I guess he was mayor at the time--was a 
very assertive, very confident fellow, and he said, ``If the 
machine says you lied, you lied.'' And he took a polygraph and 
it said he lied. It was a gigantic, front-page story.
    And he brought along his chief assistant, who also failed a 
polygraph. It is the only case I know of where a witness 
brought along a corroborating liar, although I am not sure he 
was a liar. I just know the polygraph said he was a liar. I 
knew Frank Rizzo and I would say he was telling the truth.
    The other polygraph experience I had was Jack Ruby's 
polygraph. Have any of you gentlemen looked at Jack Ruby's 
polygraph tapes? You have, Mr. Keifer? What do you think?
    Mr. Keifer. There was almost no reaction throughout those 
charts. In the format used at the time, they would have 
concluded that he was being truthful.
    Senator Specter. Do you think he was being truthful?
    Mr. Keifer. That was an early stage polygraph. I could not 
make a determination from those charts, but I respected that 
examiner's opinion.
    Senator Specter. You respected the examiner?
    Mr. Keifer. Yes.
    Senator Specter. You knew Bel Herndon?
    Mr. Keifer. Yes, I did.
    Mr. Zaid. That is part of the problem, Senator, respecting 
the opinions of the examiner. You heard one statement earlier 
that--in fact, it is true, the polygraph examiners are not the 
ones who make the decisions. They just provide what their 
evaluation is and then someone up in management makes the 
decision based on that evaluation. But everyone defers to the 
examiner. So if there is a subjective problem with the 
examiner, which everyone seems to admit that there can be, it 
does not make a difference because the opinion is accepted 
nonetheless.
    Senator Specter. The management at the FBI did not agree 
with the examiner. The management at the FBI disagreed with the 
examiner. Bel Herndon was the chief polygraph examiner, was he 
not, Mr. Keifer?
    Mr. Keifer. Yes, he was.
    Senator Specter. Is he still alive today, do you know?
    Mr. Keifer. I lost touch with Bel several years ago. I 
think he is still in the area. I hope so.
    Senator Specter. Well, it was quite a polygraph examination 
when Jack Ruby's testimony was taken. He did not give the Chief 
Justice a chance to preside. He just started right off, saying, 
``How do you know I am telling the truth? I want a lie detector 
test.'' The Chief Justice, whose composure was not always 
perfect, said, ``Well, of course, Mr. Ruby. If you want a lie 
detector test, we will give you a lie detector test.''
    And the Chief Justice regretted that commitment, and it was 
decided that the only way the commitment would not be honored 
would be if Mr. Ruby withdrew his request for a lie detector 
test. And I had been present at most of the deposition, so I 
was sent down to be with Mr. Bel Herndon when the polygraph was 
administered. I was instructed to give Mr. Ruby a chance to 
withdraw his request if he wanted to, but not to put any words 
in his mouth, because even at that point, we knew people would 
be looking at what we were doing.
    And Mr. Ruby had his own list of questions that he wanted 
asked. It was not a very good format, because it lasted for 12 
hours. You do not recommend that generally, do you, Mr. Keifer?
    Mr. Keifer. Not generally.
    Senator Specter. To have a 12-hour polygraph. But Bel 
Herndon, who was the top of his profession, said he was telling 
the truth, not involved with Oswald and not involved in the 
assassination. The matter then went to the Federal Bureau of 
Investigation and the word the Warren Commission came out with 
was that the polygraph was not reliable, not to be considered, 
and it was generally thought that that word came from 
management, and the management was Director J. Edgar Hoover. 
But we decided to publish the polygraph and all the tapes and 
all the charts and let history decide what the facts were.
    Gentlemen, thank you very much for coming in. We are trying 
to get a handle on this issue. The Hanssen case is a very 
important one and what the FBI is going to be doing in the 
future and the other Federal agencies and the intrusiveness and 
the impacts on reputations, the impacts on career are very, 
very substantial.
    We are going to seek some way--last year, one of the 
appropriations bills had a direction to have a study of the 
polygraph, to see if we cannot come to grips with its 
reliability with a little more certainty so we can know how 
effective it is and how intrusive it is and make a public 
policy determination.
    Mr. Smith?
    Mr. Smith. Senator, I value what the Committee is doing 
here. Mr. Zaid made a couple of comments, if I could have 30 
seconds to respond.
    Senator Specter. Sure. Take your time. I will be glad to 
listen to you longer. This is one hearing where the Committee 
is prepared to stay.
    Mr. Smith. I appreciate that.
    Senator Specter. That does not happen very often, either.
    Mr. Smith. This is a very difficult issue, and I do not 
know that I have the right answer. Mr. Zaid did say that there 
were some 300 CIA employees whose careers are still in limbo 
and they are not being promoted. That is not correct. Those 
individuals were identified after the Ames case. Many of them 
were referred to the Bureau. They stayed there much too long, 
but that situation has now been resolved, and George Tenet, 
they have all been cleared out.
    George Tenet has adopted recently a number of procedures to 
try to reduce the risk of that sort of thing happening in the 
future to zero so that people, when they do stumble on a 
polygraph, if that is the only thing that happens, their 
careers are not put on hold. They can be promoted. They can 
take overseas assignments and so on. But it took, in my 
judgment, much too long for those procedures to be put in 
place, but George Tenet----
    Senator Specter. Mr. Smith, when you were at the CIA, did 
you take a polygraph?
    Mr. Smith. I did.
    Senator Specter. Did you have any hesitancy about it?
    Mr. Smith. Yes.
    Senator Specter. Do you think it was an infringement on 
your civil liberties?
    Mr. Smith. No, I did not think that. I was nervous about it 
because I had had access to top secret codeword information for 
many years in other jobs and----
    Senator Specter. You were nervous about it?
    Mr. Smith. Of course.
    Senator Specter. Sufficiently nervous to have all this 
emotionality?
    Mr. Smith. No.
    Senator Specter. By the way, is that a word, Mr. Capps?
    Mr. Capps. Yes, sir, it is.
    Senator Specter. Is it? OK.
    Mr. Smith. I was concerned about it. I passed, but was 
clearly concerned about it. It does have a deterrent effect. I 
am convinced of that.
    Senator Specter. A deterrent effect?
    Mr. Smith. It does have a deterrent effect.
    Senator Specter. In what way?
    Mr. Smith. It has a deterrent effect for current employees. 
Ames, I think even in your interview with him, may have 
admitted that he was very concerned about the polygraph, even 
though he got through it.
    Senator Specter. I never had an interview with Ames.
    Mr. Smith. I misunderstood that, Senator. I thought you did 
meet with him after he was convicted.
    Senator Specter. No. I never did.
    Mr. Smith. I apologize. He did, and others who have been 
convicted of espionage have expressed concern about it. It is 
not a perfect deterrent, but it does operate to some extent as 
a----
    Senator Specter. As a deterrent, meaning that if you know 
you are going to have a polygraph in the future, you are not 
going to do something bad?
    Mr. Smith. That, I believe, yes.
    Senator Specter. Well, that is a point. Have you had a 
polygraph, Dr. Iacono?
    Mr. Iacono. No, I have not.
    Senator Specter. Are you prepared to take one?
    Mr. Iacono. I would--I am not prepared to take one, no, 
because I do not feel that they are useful. In fact, I would be 
interested in knowing how people who administer polygraph tests 
feel about testing people who are thoroughly familiar with the 
procedure, including understanding countermeasures and what the 
point of the questions is and how it is used as a prop to 
attempt to get admissions and these sorts of things.
    Senator Specter. Mr. Keifer, you have taken polygraphs?
    Mr. Keifer. I took one, yes, sir.
    Senator Specter. Just one? Were you nervous?
    Mr. Keifer. As nervous as I would be before any type of 
test, yes.
    Senator Specter. Before any type of what?
    Mr. Keifer. Any type of testing.
    Senator Specter. Any type, like coming before the Judiciary 
Committee?
    Mr. Keifer. That would be an excellent example.
    [Laughter.]
    Senator Specter. Mr. Zaid, you have never taken a 
polygraph, have you?
    Mr. Zaid. I have not. I have observed my clients taking 
polygraph tests.
    Senator Specter. But you are prepared to take one?
    Mr. Zaid. So long as nothing was riding on the results of 
it, I have no problems with it.
    [Laughter.]
    Senator Specter. You are prepared to be part of a 
contrivance, prepared to be part of a test if you are 
adequately paid?
    Mr. Zaid. I would even probably do it for free, which is 
strange for a lawyer to say.
    Senator Specter. At your hourly rate?
    Mr. Zaid. I am sorry?
    Senator Specter. At your hourly rate?
    Mr. Zaid. It is less than Mr. Smith's, at least, at this 
point, but I am a little younger.
    [Laughter.]
    Mr. Zaid. But I would love to see----
    Senator Specter. And more than mine.
    Mr. Zaid. I would love to see what happens, if I could pass 
or fail a polygraph.
    Senator Specter. Mr. Capps, have you taken a polygraph?
    Mr. Capps. Yes, sir. I have taken four and I am due for one 
now.
    Senator Specter. Are you?
    Mr. Capps. Yes, sir.
    Senator Specter. Will this hearing substitute for it?
    Mr. Capps. I certainly hope so.
    Senator Specter. Do you get nervous when you take a 
polygraph?
    Mr. Capps. Absolutely.
    Senator Specter. Well, gentlemen, thank you very much for 
coming in, for submitting your statements.
    We are going to put into the record a statement from 
Senator Grassley, and he has some questions which we will be 
submitting to you for the record.
    [The prepared statement of Senator Grassley follows:]

Statement of Hon. Charles E. Grassley, a U.S. Senator from the State of 
                                  Iowa

    Today we highlight an extremely complex and delicate subject--the 
use of polygraph examinations on our federal employees as a means to 
ensure the integrity of our nation's classified materials.
    We sit here today in the wake of one of the most serious breaches 
of security in the history of our nation--that involving the espionage 
allegations surrounding FBI Supervisory Special Agent Robert Hanssen. 
As unconscionable as it is to contemplate such a traitorous act, it is 
equally unconscionable for most Americans to contemplate how this could 
have happened in the first place.
    All Americans suffer when our nation loses sensitive or classified 
information through the efforts of foreign espionage. But it is 
particularly deplorable when these efforts are found to be facilitated 
by our own personnel. How can we expect the American people to place 
their trust in our federal agencies when their trust is betrayed by the 
very people charged with their protection?
    So today, as a consequence of these despicable acts, we once again 
find ourselves in the midst of a problem in search of a solution: how 
can we obtain the greatest degree of assurance in the integrity of our 
personnel with classified access? At issue is the question of whether 
the polygraph examination should be made part of the security program. 
I think that all will agree, if this is the solution, then we have 
opened up a whole pandora's box of problems that must be properly 
addressed for it to be considered fair and effective.
    We have heard much about the need to review the security procedures 
at those agencies charged with safeguarding our nations secrets--and I 
know that the Webster Report will have much to say about this issue at 
the FBI. Many have argued for the need to remove the human element from 
these procedures. This argument flows from the idea that our senior-
most personnel, and consequently, those with the most classified 
access, are routinely considered to be above suspicion. Much to our 
detriment, we have learned the fallacy of this notion. In response, we 
have recently seen Director Freeh react with an interim policy change 
that will subject in-service FBI personnel to periodic polygraph 
examinations. I anticipate that we will find similar recommendations 
from the Webster Report when it is completed.
    In the past, I have expressed reservations regarding the use of the 
polygraph, particularly in the context of its use during pre-employment 
screening, and I have cautioned against its use as a sole determinant 
of a persons guilt or innocence.
    I have also been critical of the duplicitous positions that the FBI 
has taken in regard to their application of the polygraph exam in the 
context of its administration in both pre-employment screening and 
criminal investigations. The FBI will tell you that the polygraph 
examination is only one of many components to their pre-employment 
screening process. This would lead one to the false conclusion that one 
could fail a pre-employment polygraph examination with the FBI and 
still be hired, if all other factors are in order. Make no mistake 
about it, the failure of a polygraph examination during a pre-
employment screening is an automatic disqualifier, notwithstanding any 
other factor.
    The dirty little secret that the FBI will never tell you is: behind 
their policy governing the application of the polygraph during pre-
employment screening is the concept of ``acceptable loss.'' Any 
polygraph examiner, or for that matter, anyone who has done any 
research on the subject, knows that there is an error rate to the 
examination; yet, the pervading sense at the FBI is, with a never-
ending stream of applicants for job openings, losing a few due to 
examination error is simply the cost of doing business.
    Further, and by their own admission, the FBI has repeatedly gone on 
record to mitigate their reliance of the polygraph examination as a 
tool in the course of their criminal investigations. My reaction to 
this is, if this is the way that the FBI feels about the use of the 
polygraph in their criminal investigations, how can we then have 
confidence in their application of the polygraph for the national 
security screening of their own employees? Should we also infer that 
the concept of ``acceptable loss'' applies in this instance as well?
    It is my understanding that the FBI's interim policy in this matter 
is to use the polygraph examination in conjunction with, and as a 
complement to, their comprehensive employee security updates. Are we 
being asked to once again take a leap of faith that the polygraph will 
not be the sole determinant of an employee's guilt or innocence? How 
can we be sure that the real agenda will not be the same as it is with 
pre-employment screening?
    And, I also wont' that by instituting the routine use of polygraph 
examinations for the national security screening of employees, this 
will be at the expense of the other investigative tools involved in a 
security review. And that an over-reliance of the polygraph may lull 
the agency into a false sense of security.
    As post-incident investigations have proven in the alleged 
activities of Agent Hanssen and many other espionage losses involving 
our own personnel, clues of suspicious behavior were there to be found; 
yet, their activities continued unabated, in some cases for several 
years. Some may accuse me of having the benefit of 20/20 hindsight, but 
it is clear that if the FBI had followed up on information available to 
them in their routine security updates, they could have put an end to 
this breach years sooner, and without the need for a polygraph 
examination.
    To simply say that this is the right thing to do; that this policy 
is unfortunate but necessary, plays into the notion that the FBI knows 
their business better than we do. I know too well the history of an 
agency who's private and public faces are all too often at odds with 
each other.
    To be sure, with our national security interests at stake, it is 
critical that we find the best way to identify illegal behavior within 
the ranks of the FBI. But I disagree that the polygraph is the panacea 
for this problem, and I look forward to reviewing the FBI's 
comprehensive policy in this matter at the earliest opportunity.

    Senator Specter. We have a number of statements from 
individuals who were not called as witnesses and wanted to have 
their statements submitted for the record, so they will be 
submitted en bloc.
    [The statements follow:]

Statement of former Federal Bureau of Investigation Special Agent Mark 
                               E. Mallah

                           the investigation
    In January 1995, the FBI asked me and the other agents in the 
Foreign Counterintelligence division to take a polygraph test. It was 
to be a routine national security screening to ensure that no one was 
supplying information to foreign intelligence services. When the test 
ended and the examiner surveyed my charts, he thought they indicated 
``deception'' on unauthorized contact with foreign officials. He 
questioned me about it, and I told him that I had never had any 
unauthorized contacts, not even close. The charts would be reviewed by 
headquarters, he advised, but he believed they would judge them 
``deceptive.''
    About two weeks later, the FBI instructed me to report to 
Washington, DC for additional polygraph testing. At this point, I had 
no idea of the scale of the investigation unfolding. Two consecutive 
days of polygraph examinations and lengthy interrogations ensued. The 
examiner erroneously insisted that I was deceptive on unauthorized 
foreign contacts and even on other unrelated matters. The FBI placed me 
on administrative leave with pay, pending further investigation.
    A major investigation followed-"major'' in the sense that it was a 
top priority case commanding extensive resources. Believing the FBI 
would objectively review the facts and have no choice but to exonerate 
me, I cooperated eagerly. After a full day of polygraphs, 
interrogations, and a three hour train ride home, FBI Agents appeared 
at our home that same night and asked for our consent to search it, 
which my wife and I provided. This unleashed a search team of about 
seven agents, many in raid jackets. The search lasted about three hours 
and ended well after midnight. I allowed the FBI to take detailed 
financial records, appointment books, personal calendars, daily ``to-
do'' lists, my innermost thoughts expressed in personal diaries, 
personal correspondences, and numerous other items. Following the 
search and for about two months afterward, I was under surveillance 
twenty four hours a day, seven days a week. For at least a week during 
that time, a small airplane circled above our home every morning, then 
buzzed above me wherever I went.
    The FBI interviewed numerous friends, acquaintances, former 
roommates, colleagues, and my family. The Bureau accused one friend of 
being an accomplice and gave him a polygraph test, which he ``passed''. 
They showed up unannounced and surprised my wife at her place of work, 
asking to interview her right then and there. She agreed to be 
interviewed later. During her interview, the FBI asked her to take a 
polygraph, which she declined, since she did not trust the device. The 
FBI asked both of my brothers to take a polygraph test. one agreed, and 
he ``passed.'' An Agent told one of my friends that there was 
``significant evidence'' against me. This same agent told my brother he 
was certain that I was guilty.
    Five months into the investigation, I returned to work as a Special 
Agent, again entrusted with a ``top secret'' clearance, a gun, and a 
badge. The reinstatement seemed to mark the end of the investigation, 
and my vindication, but it did not. As soon as I returned, the Special 
Agent in Charge (SAC) for Counterintelligence told me that the foreign 
contacts issue was still ``unresolved.'' Unresolved'' despite the FBI 
having had unlimited access to every aspect of my personal and 
professional life for the prior five months.
    After my reinstatement, I inquired regularly into the status of the 
investigation, i.e. when it would finally end. In response, FBI 
Headquarters wrote to me in October 1995, the investigation now eight 
months old. They stated that I was ``the subject of a security 
reinvestigation involving [my] inability to resolve issues relating to 
[my] associations with foreign nationals.as well as [my] susceptibility 
to coercion as a result of [my] concealment of these matters.'' I 
answered that my being entrusted with a ``top secret'' clearance belied 
their conclusions. How could I hold a ``top secret'' clearance and at 
the same time be ``susceptible to coercion'' as a result of concealing 
such serious matters? I also noted that after eight months of 
investigation, the FBI had yet to produce one speck of information as 
to just exactly who these foreign nationals were that they kept citing, 
what information I had supposedly compromised, when I had supposedly 
compromised it, and in what manner I had supposedly done so. Judging 
from their letter, the FBI sought to impose on me the burden of 
disproving their accusations, details about which they never provided.
    No specifics were ever provided, as they were non-existent in the 
first place. The investigation continued, and I resumed my inquiries. 
After inching through various stages of the bureaucracy, it concluded 
in September 1996, 20 to 21 months after it began. The final outcome 
was a letter of censure and a two week suspension for a trivial 
administrative issue and a minor detail from my FBI employment 
application. Most significantly, the letter of censure was silent about 
unauthorized contacts with foreign officials, the national security 
issue which launched the investigation and was its raison d'etra. 
Investigators produced of course zero corroboration for any issue which 
the polygraph deemed me ``deceptive.''
    Shortly after the investigation, I voluntarily resigned from the 
FBI with a clean record. If I were to re-apply for a position with the 
FBI in the future, I would receive a positive recommendation for 
reinstatement, the most favorable status possible.
                        a disturbing experience
    The experience was highly disturbing on a personal level for all 
the obvious reasons- it was invasive, my reputation was under constant 
assault, my career completely undermined, my integrity placed under 
suspicion, and I was definitively accused of sins which run completely 
against my values. This was, to say the least, a stressful and 
challenging odyssey.
    Perhaps even more disturbing are the larger implications. Nothing 
more than unsubstantiated polygraph charts launched a major 
investigation which squandered a vast amount of resources. I estimate 
that the FBI spent far in excess of $1 million dollars on the case. 
This would be an acceptable price of protecting national security if 
the polygraph had a history of accuracy and success, and my case was 
just an unfortunate exception. But in all its history, the polygraph 
has not detected one single spy. Ever. It is batting .000. Worse than 
that, it lulled the intelligence community into a false sense of 
security in the Aldrich Ames case, a CIA employee ultimately convicted 
of espionage. He ``passed'' the polygraph, and continued spying 
thereafter.
    With the polygraph's dismal record, with the entire weight of 
outside scientific expertise convinced that polygraph screening does 
not work and is prone to accusing innocent people, with nothing more 
than self-serving theory behind it, the FBI, its Polygraph Unit, and 
other government practitioners should be held accountable to Congress 
for ``uses and abuses of the lie detector,'' to quote the subtitle of 
Dr. David Lykken's book, A Tremor in the Blood. I found this lack of 
accountability, this freedom to level unsubstantiated charges and 
instigate a furious accusatory process without having to answer for the 
results, both irresponsible and chilling. My experience is not unique. 
Other individuals within the FBI and in the intelligence community have 
had their lives needlessly rocked by the whimsical dance of the 
polygraph's pens, not to mention the dozens of unsuspecting applicants 
whose aspirations are ambushed by the machine. More are certain to 
come.
                   the polygraph and the alternatives
    The polygraph's susceptibility to error is well established by 
scientific research. Its recordings do not measure truth or deception. 
They measure fluctuations in blood pressure, respiration, and sweat 
response. Period. The examiner then interprets those fluctuations in an 
attempt to infer truth or deception. Since no physiological pattern is 
known to be unique to deception, but could also represent anger, fear, 
anxiety, embarrassment, and other emotional states, the interpretations 
and inferences of the examiner are notoriously prone to error. 
Entrusting it with the protection of our national security is 
delusional.
    Sound and objective investigation is the best way to safeguard 
against the risk of espionage. Spies and others who pose security risks 
are generally not stable, well-adjusted people. They are troubled and 
leave tracks.
    Many desire more money and a grander lifestyle than their salary 
allows, such as Aldrich Ames, owner of a $540,000 home purchased with 
cash, and a large drinking problem. They might have a need not only for 
money but to feed their ego, such as John Walker. Even those supposedly 
in it for ideology get paid. Asset checks, credit checks, reference 
checks, periodic interviews of associates and friends, good source 
development, and other investigative techniques are far more 
trustworthy indicators of a security risk than a polygraph machine.
                               conclusion
    Whether it is screening applicants or screening employees, the 
polygraph is a failure. I suspect that its days as a screening tool are 
deservedly near an end. If the experience I endured leads to its 
elimination as a screening device, then I will have considered it all 
worthwhile.

                                

    Statement of George W. Maschke, Co-founder of AntiPolygraph.org

    My name is George W. Maschke, and I am a co-founder of 
AntiPolygraph.org, a nonprofit website and grassroots network of 
individuals committed to polygraph reform. Specifically, we seek the 
amendment of the 1988 Employee Polygraph Protection Act to provide 
protection for all Americans by removing the governmental and other 
exemptions. I am also a captain in the United States Army Reserve, but 
it is strictly in my capacity as a private citizen that I address the 
Committee.
    Each new spy scandal brings in its wake calls for improved security 
and, invariably, more lie detector, or polygraph testing. Indeed, the 
polygraph has become the very centerpiece of America's 
counterintelligence policy. The wisdom of our reliance on this 
purported technology is seldom questioned. Indeed, anyone who might 
raise a cautionary finger runs the risk of being seen as ``soft on 
security.'' But with ``more polygraphs'' being confused for ``more 
security'' yet again as the FBI moves to expand its polygraph program 
in the wake of the Hanssen espionage case, it is necessary that such a 
cautionary finger be raised.
    My interest in polygraphy was kindled when I applied to become a 
special agent with the Federal Bureau of Investigation in 1995, not 
long after Director Louis J. Freeh, in reaction to the Aldrich H. Ames 
espionage case, instituted the Bureau's preemployment polygraph 
screening program. After I had passed all written tests, a supervisory 
special agent at the FBI field office where I applied was keen to have 
me start working with the Bureau in a support position pending agent 
hire. I agreed, and was hastily scheduled for a pre-employment 
polygraph exam. When my polygraph test was done, my polygrapher accused 
me of deception when I (truthfully) denied having disclosed classified 
information to unauthorized persons and having had unauthorized contact 
with representatives of a foreign intelligence service. I was 
absolutely dumbstruck. He was in essence accusing me of being a spy. We 
reviewed the questions again and my polygrapher ran yet another chart. 
This time, he told me he was certain I was lying.
    The FBI dropped me like a hot potato and recorded my polygrapher's 
slander of me in an interagency database, essentially blackballing me 
with other agencies, too. There is no appeal process.
    I was baffled at how the polygraph test, which I had always 
imagined to be an admittedly imperfect yet nonetheless science-based 
technology, had falsely branded me as some kind of subversive or spy. 
Upon researching the matter at my local university library, I was 
shocked and angered to discover that polygraph testing, on which we as 
a nation place such great reliance, is not a science-based test at all, 
but is instead fundamentally dependent on trickery and has never been 
shown by peer-reviewed scientific research to be capable of 
distinguishing truth from deception at better than chance levels of 
accuracy under field conditions.
    The trickery on which polygraph testing depends, while well-known 
to foreign intelligence services, is little understood by the American 
people and, I respectfully submit, their elected representatives. Let 
me explain. While numerous deceptions are employed in the polygraph 
process, the key element of trickery is this: the polygrapher must 
mislead the examinee into believing that all questions are to be 
answered truthfully, when in reality, the polygrapher is counting on 
the examinee's answers to certain of the questions (dubbed ``probable-
lie control questions'') being untrue.
    One commonly-used probable-lie control question is, ``Did you ever 
lie to a supervisor?'' While the examinee may make minor admissions, 
the polygrapher will strongly discourage any further admissions, 
warning the examinee, for example, that experience has shown that 
people who would lie to a supervisor turn out to be the same kind of 
people who would go on to commit espionage. But in reality, the 
polygrapher assumes that the examinee's denial will be a lie, or that 
the examinee will at least experience considerable doubt about the 
truthfulness of his or her denial.
    The second category of questions are termed ``relevant'' questions. 
In counterintelligence screening, they will be about unauthorized 
disclosure of classified information, contact with foreign intelligence 
services, etc.
    A third category of questions are termed ``irrelevant'' questions, 
the true answers to which are obvious, such as, ``Is today Wednesday?'' 
or, ``Are we in Washington, D.C.?'' The polygrapher falsely explains to 
the examinee that these questions provide a baseline that shows what it 
looks like when the examinee is telling the truth. But in reality, the 
irrelevant questions are not scored at all. They merely serve as a 
buffer between sets of relevant and ``control'' questions.
    The polygrapher connects the examinee to the polygraph instrument, 
which records breathing, heart rate, blood volume, and perspiration 
rate (as a function of skin conductance or resistance), and asks a 
series of relevant, irrelevant, and ``control'' questions (all of which 
are reviewed with the examinee beforehand).
    The polygrapher then compares the examinee's physiological 
responses while answering the ``control'' questions to those while 
answering the relevant questions. If the former are greater, the 
examinee is deemed truthful. If the latter are greater, the examinee is 
deemed deceptive, and a post-test interrogation will follow. If 
responses to both the ``control'' and the relevant questions are about 
the same, the test will be deemed inconclusive.
    The well-socialized truthful examinee who reacts more strongly when 
truthfully denying a capital offense like espionage than when denying 
some common human failing is likely to be wrongly categorized as 
deceptive: a false positive.
    Conversely, deceptive persons who understand the theoretical 
assumptions of the procedure may covertly augment their physiological 
responses to the ``control'' questions, producing a ``truthful'' chart 
and beating the test. It is a common misperception that one must 
believe one's own lies or be a sociopath to beat a polygraph test. As 
the FBI's top expert in polygraphy, Dr. Drew C. Richardson of the 
Laboratory Division, testified at Senate Hearing 105-431 in 1997, ``If 
this test had any validity (which it does not), both my own experience, 
and published scientific research has proven, that anyone can be taught 
to beat this type of polygraph exam in a few minutes.''
    There are numerous variations of polygraph screening tests, but all 
depend on trickery and all can be defeated by augmenting one's 
physiological responses to the ``control'' questions. For more on 
polygraph testing, and to learn precisely how anyone-truthful or not-
can pass a polygraph test, see The Lie Behind the Lie Detector, which I 
coauthored with Gino J. Scalabrini. It may be downloaded free from the 
AntiPolygraph.org website.
    Polygraph screening, the key element of our national 
counterintelligence policy, is junk science. The polygraph screening 
process depends on those being ``tested'' being ignorant of the true 
nature of the procedure, which is clearly an unsafe assumption. Through 
the polygraph process, many many truthful persons have been and will 
continue to be wrongly branded as liars, while double agents (of whom 
Aldrich Ames is but the most prominent of many who have beaten the 
polygraph) escape detection. To strengthen our national security, we 
should not increase our reliance on pseudoscientific polygraph tests: 
we should abolish them.

                                

   Statement of Pascal Renucci, former government defense contractor 
                    employee, San Francisco Bay, CA

    I was formerly employed with a government Defense contractor in the 
San Francisco Bay Area. Due to the nature of the work, one of my 
supervisors initiated a security clearance application on my behalf in 
mid-1999.
    The clearance process began by my completing a security form. One 
of the questions on this form is past drug history. I answered 
truthfully by indicating a one-time experience smoking marijuana after 
my father died of pancreatic cancer. I explained on the form that I 
thought the marijuana might help with the extreme grief I was feeling 
that night. A few months after submitting the form, I was told that the 
investigating agency, the CIA as it turns out, wanted me to submit to a 
polygraph to verify the veracity of my stated drug history. As I was 
truthful on the form, I voluntarily consented to the polygraph. I 
reasoned that since I am hiding nothing, one would hope the polygraph 
should be uneventful and pass without incident. The day the polygraph 
was administered, one of the most traumatic days of my life, I 
discovered very painfully how erroneous my reasoning was.
    My visit to the polygraph office began with the examiner explaining 
security clearances and the background investigation process, while 
establishing a tone of dominance in the conversation. Gradually, he 
steered the topic towards illicit drug use and asked that I recount the 
events leading to my use of marijuana a few days following my father's 
death. After doing so, he and I agreed on a set of polygraph 
examination questions. The most salient question being whether I had 
ever used marijuana more than five times, the truthful answer being 
negative since I had only used marijuana once. So far, nothing 
objectionable had transpired.
    He proceeded by fastening the various polygraph appendages to my 
body. All of these were benign with the notable exception of the blood 
pressure cuff strapped around my arm with excessive tightness. I felt 
extreme discomfort immediately as the artery feeding blood to my arm 
was being choked. No medical practitioner has ever fastened a blood 
pressure cuff on my arm so tightly. I informed the examiner that the 
strap was much too tight and requested that it be loosened. He sternly 
replied that a very accurate measurement of blood pressure was 
necessary. Therefore, loosening the cuff was unacceptable. I retorted 
with my mounting feeling of pain, to which he most assertively repeated 
his earlier denial. Feeling intimidated, I became quiet. As the pain in 
my arm grew even worse, I noticed that the color of my hand was 
becoming indistinguishable from the purple stone on my college ring. I 
brought up the issue once more, and the examiner, apparently annoyed, 
moved the strap from my arm to my lower leg. Though it was a great 
relief physically, I was becoming more unsettled by his demeanor.
    Before beginning the testing procedure, he instructed me not to 
take any deep breaths. I immediately had difficulty complying since I 
was already tense from the previous exchange about the blood pressure 
cuff, and actually very much so needed to take a deep breath- 
Nonetheless, I forced myself not to breathe-in deeply. He posed a few 
preliminary questions including where I lived and the day of the week 
it was. Soon after the beginning of questioning, he criticized the 
shallowness of my breathing. With an annoyed tone, he then told me to 
breathe normally, which confused me given his initial breathing 
instructions. This episode, combined with the earlier one about the 
cuff, left me so nervous that I even incorrectly stated the day of the 
week it was during questioning. He was upset by this mistake, and 
though I apologized profusely to assuage the tension, I felt no better 
or calmer. When the preliminaries were completed, he cycled tbrough the 
actual test questions several times. As stated before, the key issue 
was whether or not I had used marijuana more than five times. The 
events following this questioning form the basis for the bulk of my 
complaint.
    After the polygraph ended, the examiner rose from his chair and 
angrily shouted that the test results could not have looked any worse 
than they were. I was indescribably shocked upon hearing this, As I was 
sitting in the polygraph chair in utter disbelief, the examiner 
continued with a loud, endless tirade about how I have been lying and 
that I should confess to other times I had used drugs. I answered that 
there were no such other times, and if there were, I would have told 
him about it in the first place. He then said something to the effect 
``No, I know you wouldn't tell me Pascal.'' My jaw dropped in 
indignation as he made me feel like a criminal in a police 
investigation. The examiner's manner of speaking to me smacked of a 
police-drama show on TV.
    Similar exchanges ensued for quite some time. I would maintain that 
I had in fact told him of absolutely any and all involvement I had with 
drugs, however, he would keep insisting I was not telling him 
``something''. At one point, he shook his head and made comments 
suggesting that my ``story'' about using marijuana after my father 
dying was ridiculous. I was extraordinarily upset hearing such 
characterizations. The circumstances arising from my father's death 
were being mocked and I was being accused wrongly of dishonesty. I felt 
insulted beyond words. The examiner was adamant in his fallacious 
convictions and I was physically drained from spending several hours 
there already, Finally, I became exasperated and asked to leave, as the 
situation was hopelessly deadlocked. However, the examiner continued to 
argue ominously with me for a good while longer, and then just left the 
room. I was hoping to be released, but dared not leave the room until 
being told I could, as I was petrified by this stage.
    After ten or fifteen minutes elapsing (with the polygraph sensors 
still attached), a different man walked into the room, introduced 
himself as the head polygraph examiner, and removed the sensors. I 
hoped he would just tell me I could leave. Instead, he firmly asserted 
``You're being deceptive and untruthful,'' which I answered was not the 
case, which in turn fueled the same type of back and forth arguing as 
with the first examiner. It became apparent that he was following the 
first examiner's lead. He indicated that the polygraph waveforms looked 
as though I ``shotup last night'' with some drug, adding that my 
wearing a long sleeve shirt made him suspicious. I reacted by starting 
to unbutton my sleeves to show him the puncture-free skin on my arms, 
but he told me stop before I could pull-up my sleeves. I found his 
statements as offensive as those of the first examiner.
    He began to argue that since I completed both an undergraduate and 
a graduate degree successfully, and that since I was doing well 
professionally, then I was probably not an inveterate drug user. 
Indeed, that much is true. He continued by stating that the US 
Government is not concerned about small amounts of drug use, so I 
should admit to whatever other drug use I did, so that they could know 
they could trust me. Just as with the first examiner, I replied that if 
there were any other drug use, I would have told them, but there was no 
such other use. I indicated that I understood the stated US 
Government's position on drugs. but the fact was that I had told them 
everything. He and I were hitting the same brick wall as with the first 
examiner. He was making no mention of my being able to leave, and 
though I was never physically restrained or told I could not leave. I 
was becoming genuinely frightened of my ultimate fate in this place. I 
repeated yet again my desire to leave. He threatened that all of my 
security clearance processing would be terminated if I left. By then, 
obtaining the security clearance was the least of my concerns, and as 
such, I asked to leave once again. He exited the room, and shortly 
thereafter, yet another man walked in.
    This final man introduced himself as the general manager of the 
office, and basically reiterated what the previous man said about my 
clearance processing being terminated if I left. He then gave me a form 
to sign, which I did. I do not recall the specific content of this form 
and was never given a copy of it. However, I do clearly recall that by 
then, I would have been willing to sign a form indicating I was 
President Kennedy's assassin, if it meant I would be let out of there. 
Finally, after enduring five hours of hell and signing the form, this 
last roan showed me the door.
    Without question, this was the most demeaning and insulting 
experience of my life. My integrity had never been so baselessly 
attacked and defiled. I felt bullied, mugged, and violated. I was so 
upset and traumatized by the five-hour ordeal that I almost got myself 
killed driving back home from not paying attention to the road. 
Moreover, I could not sleep at all that night, despite my laying in bed 
over ten hours.
    After this experience, I am completely dumbfounded by my 
government's quasiexclusive reliance on polygraph junk science. When 
prompted to submit to the polygraph, I gladly consented since I had 
nothing to hide. I thought to myself that nothing could go wrong. Now, 
I know first hand that the polygraph is a sham as a scientific tool. No 
physiological pattern is unique to lying. Being nervous, tense, or not 
breathing right are invitations to examiners accusing one of deception, 
and subsequently harassing and abusing one to no end. If the polygraph 
genuinely worked, there would not be such massive controversy 
surrounding it, the National Academy of Sciences would not be tasked 
with an 18-month study of it, and the Employee Polygraph Protection Act 
would not exist. Our government's reliance on this tawdry trinket has 
already cost this country a great deal, as Aldrich Ames has already 
attested. It is my sincere hope that a thorough investigation into 
polygraph principles, into the abuse that examiners subject innocent 
people to, and into the mistakes committed due to polygraph results 
will finally awaken our government into realizing that this toy has no 
place in national security investigations.

                                

       Statement of Detective William Roche, Northern California

    My name is William Roche. I am a police detective in Northern 
California. I graduated second in my police academy; I have received 
numerous commendations for my community service as well as my criminal 
investigations. Based on my achievements, I was selected by my peers to 
be our agency's officer of the year.
    In the area of criminal investigations, the ability to effectively 
interview and interrogate someone will take many phases. A legitimate 
phase is to use a ruse during the course of an investigation to have a 
person believe you have more knowledge about the crime than you 
actually do.
    Whether it's a mother saying she has eyes in the back of her head, 
or on the many occasions investigators have told suspects a hidden 
video camera captured them committing the crime.
    Often times to enhance these ruses, props are introduced. It is not 
uncommon to have suspects put their hands on computer screens, or even 
grab the antenna of a patrol car, and then tell the person the item is 
a lie detector that will determine if the person is telling the truth.
    It is the belief of the unknown and the ignorance of the person 
that causes them to make admissions.
    The polygraph is nothing more than a technical looking prop for 
investigators to use when interviewing suspects.
    To make a determination on guilt, innocence, hiring suitability or 
compliance with probation terms based on polygraph results alone is 
irresponsible. In a recent case before the United States Supreme Court, 
a criminal defendant wanted to use polygraph test results, which showed 
favorably for him as evidence in his criminal trial, however, the 
United States Government argued against this request stating the 
polygraph is too prone to counter measures.
    The Justices took note of the Governments position on the case and 
wrote there is much inconsistency between the Governments extensive use 
of polygraphs to make vital security determinations and the argument it 
makes here, stressing the inaccuracy of these tests.
    Based on polygraph results alone, it would be negligent to deny an 
innocent job applicant of a career, or clear a child molester of 
wrongdoing, only to have him strike again because the charts ``zigged'' 
when they should have ``zagged.''
    To give polygraph results any credibility in an investigation or 
hiring decision, without the support of an admission or confession, is 
reckless and slander.
    Not only can polygraph results be manipulated by the examinee, but 
also by the polygraph examiner.
    The polygraph monitors a person breathing and heart rate. As we all 
know, the ability to manipulate this is very easy. Imagine a Doctor 
telling you that you have serious disease just seconds before he 
monitors your heart rate. The results would obviously not be accurate 
measurement.
    In 1997 I applied to the Secret Service. What I experienced forever 
changed my life.
    Before the Secret Service agents would administer the polygraph 
exams, they interrogated and agitated me. At times even yelling and 
making threatening gestures to the point I moved my head in fear of 
being struck. I still remember my hands trembling out of pure anger as 
the electrodes were being strapped to my fingers. This occurred for 13 
hours over the course of two days.
    Even though the behavior of the agents was outside their standards 
in training, my conditional job offer, as well as my dream, was taken 
away from me
    However, in my research I learned polygrapher's manipulating 
polygraphs is all too common.
    With no recording devices, there is nothing to prevent a 
polygrapher from stimulating the person. If society thinks police 
profiling through traffic stops is an issue, imagine the vulnerability 
of a criminal defendant or applicant for a job where polygraphists are 
allowed to inflict their personal biases into the examination.
    Remember though, even a professionally administered polygraph is 
only 50% accurate, but at least there is 50% chance of passing, where 
there is virtually none when it is conducted unethically.
    In conclusion, imagine the next time you are walking through an 
airport metal detector. Suddenly the alarm goes off. You know you have 
done nothing wrong, but instead of researching the issue, you are 
labeled a security risk and escorted from the airport banished from 
ever flying again.
    That same scenario is played out in real life everyday with the 
polygraph. Please, you have the power to stop this and protect your 
citizens.
    I have a web site where I have compiled my information. It is 
located at stoppolygraph.com.
    Thank you for your time and consideration.

    Senator Specter. Thank you all very much.
    [Whereupon, at 11:23 a.m., the Committee was adjourned.]
    [Questions and answers follow:]

                         QUESTIONS AND ANSWERS

 Responses of Michael H. Capps to questions submitted by Senator Leahy

    Question 1: In Mr. Kifer's testimony, he refers to ``prior 
studies'' indicating that the polygraph has ``an accuracy rate'' of 
between 90 percent and 99 percent: Is there any report in the peer-
reviewed sciendic literature establishing that polygraph screening has 
a higher accuracy rate than 90 percent? If so, could you please 
identify that study?
    Answer: In the testimony of Mr. Richard W. Kiefer before your 
Committee, Mr. Kiefer indicated that polygraph testing had an accuracy 
rate of between 90 percent and 99 percent. There are no research 
studies involving counterintelligence polygraph screening examinations 
that support an overall accuracy of 90-99 percent. When addressing 
specific issue examinations a significant body of literature 
demonstrates that polygraph decisions for criminal investigations have 
an error rate often percent or less. In the U.S. Supreme Court case 
U.S. v. Sheffer (523 U.S. 303 (1998)], numerous laboratory and field 
studies were identified by the Committee of Concerned Social Scientists 
as Amicus Curiae in Support of the Respondent as ``high quality 
laboratory studies of the control question test.'' The Committee of 
Concerned Social Scientistss reported the following:

In nine laboratory studies, 91 percent of the subjects were correctly 
        identified when inconclusive opinions were excluded.
In five field studies, the accuracy reported for correctly identifying 
        the guilty was 95 percent; the innocent were correctly 
        identified in 75 percent of the examinations.
In five field studies using the original examiner's opinions, the 
        accuracy rate for correctly identifying the guilty was 97 
        percent; the innocent were correctly identified in 98 percent 
        of the examinations.

    Question 2: Mr. Keifer opines that; if Robert Hansen had been given 
a polygraph examination, he would have ``reacted with greater than 99% 
certainty.'' Yet we know that Aldrich Ames was not caught even though 
he was given two polygraph examinations while he was at the CIA and 
that other guilty people passed polygraph tests. Is there any reliable 
basis to estimate the probability that a particular person would or 
would not pass a polygraph test?
    Answer: There is no body of research that allows one to predict 
with certainty the outcome of a given polygraph examination. Estimating 
the probability that a particular person would or would not pass a 
polygraph test, a priori is not currently possible. Research indicates 
(Raskin, 1988) that with the levels of oversight imposed on government 
examiners which require standardized polygraph procedures and 
standardized numerical evaluations an accurate polygraph decision is 
usually the result.
    While it is widely publicized that Aldrich Ames was not identified 
as a spy as a result of his polygraph testing, it is seldom stated that 
during the conduct of his two polygraph examinations, significant 
responses to the relevant questions did occur. House Intelligence 
Committee Chairman Representative Dan Glickman related that Ames had 
been detected as deceptive in two of his answers (New York Times, 
August 10, 1994). Similarly, then-CIA Director James Woolsey (New York 
Times, March 8, 1994) acknowledged that the CIA had failed to follow-up 
on Ames' failure on two polygraph questions.

    Question 3: Everyone acknowledges that ``false positive'' polygraph 
examinations can occur in which innocentpeople will show deceptive 
reactions. In addition, Mr. Keifer estimates that ``there might be a 
maximum of 3 spies in a population of 10,000.'' Assuming for the sake 
of argument that Mr. Keifer's estimate of the frequency of espionage is 
correct:
    a. Is it likely that if you give polygraphs to 10,000 people in 
order to catch the three spies, you will get hundreds of false positive 
responses?
    Answer: As in other forensic disciplines, false negatives and false 
positives do occur in polygraph testing. However, based upon government 
research and statistics routinely collected by DoD, the occurrence of 
false positives in counterintelligence scope polygraph examinations is 
not believed to occur in significant numbers. Research has shown that 
using a two-step process can mitigate these results. In this process, 
the examination proceeds from the multiple issue questions asked during 
the initial phase of testing to a single-issue test format during the 
subsequent phase. These additional testing phases are administered on 
an as needed basis to clear up issues to which the examinee showed 
significant responses. This methodology is consistent with Meehl and 
Rosen's ``successive hurdles'' approach (1955), which serves to lessen 
the adverse effects of imperfect validity and unbalanced base rates. 
This approach is similar to medical diagnostic screening strategies 
wherein tests with high sensitivity are given to the population of 
interest followed by testing those with positive results using 
procedures that have better specificity.
    Using DoD statistics for feral year (FY) 2000 as an example, 7,890 
examinations were conducted involving counterintelligence scope 
polygraph examinations.* Of the 7,890 examinations, 7,688 were 
evaluated as no significant response (non-deceptive) and 202 were 
evaluated as significant response (deceptive). Of the 202 evaluated 
significant response, 191 individuals made admissions to the relevant 
issues tested. Through additional polygraph testing, all relevant 
issues were resolved favorably for the examinee, i.e., they were able 
to maintain their clearance.
    Of the 202 individuals who exhibited significant responses and/or 
provided substantive information, 194 received a favorable 
adjudication, three were still pending adjudication and five were 
pending investigation at the time of the DoD report, and none received 
adverse action denying or withholding access.
    Using these statistics, the greatest possible number of false 
positive outcomes for the entire PY is eight. This is a possible false 
positive rate of less than one percent *Does not include NSA or NRO

    b. Assuming that the three spies all fail their polygraph tests, 
they would be only three out of perhaps hundreds of employees who 
failed the test. How are investigators going to be able to find the 
three real spies and not unfairly cast suspicion on all of the innocent 
employees who have false positive results?
    Answer: Federal polygraph programs are designed to assist the 
investigator in identifying persons who merit further investigation 
prior to granting or denying access to sensitive information. In this 
context, the polygraph technique has shown itself to be the most 
efficient method for providing investigative leads for the adjudicator. 
However, it is important to remember that the polygraph technique is 
only one of the steps used in personnel screening.
    Polygraph examinations during tech significant responses occur to 
the counterintelligence questions are provided to adjudicators. Based 
upon the information gathered through all sources of the personnel 
screening process, agency adjudicators may decide to take no action, 
conduct a more thorough background investigation, or to forward the 
information for investigation.
    In FY 2000 based on information gathered during DoD polygraph 
examinations, adjudicators made determinations of the security 
worthiness of 7,890 persons. As demonstrated by DoD statistics, 202 
individuals were identified as significantly responsive to relevant 
questions relating to security issues, and 191 of these persons 
provided substantive information that allowed adjudicators to make 
informed decisions about referral for investigation or granting the 
clearance. Only eight persons out of 7,890 were possible subjects of 
investigations; five were referred for investigation. These statistics 
also indicate that persons who show significant responses during a 
polygraph examination usually are not involved in espionage but 
committed security violations of some kind.

    Question 4. Do you believe it is appropriate to exclude someone 
from government employment; without any independent corroborating 
evidence of deception or other information indicating that the 
applicant is unqualified for the position, solely because that person 
failed a polygraph? If not, what specific steps should be taken to 
insure that this does not occur?
    Answer: Federal agencies should not exclude an applicant for 
employment solely because he/she reacts to relevent questions during a 
polygraph examination. Polygraph examinations are investigative tools, 
and sole reliance on them, or any other single tool, may not result in 
the level of decision accuracy equal to that of an adjudicative process 
that considers multiple sources of information. The polygraph 
examination consists of a set of standardized procedures designed to 
resolve issues during an applicant's screening examination- If at the 
end of the polygraph testing an applicant continues to demonstrate 
significant responses to counterintelligence issues and provides no 
information that would disqualify him/her from consideration, the 
polygraph decision should be provided to the adjudicators. The 
adjudicators should seek to verify information gained during the 
polygraph examination through the background investigative process. 
Once all information is gathered and provided to the adjudicator, an 
employment decision should be made for the best-qualified applicant. 
The criteria to determine the best qualified should not overly rely on 
any single tool, including polygraph testing.

    Question 5. If someone is told that they have failed a polygraph 
test, is it more likely that that person will have an adverse 
physiological reaction if the same questions are asked in a subsequent 
polygraph test?
    Answer: The effect of telling a person they failed a polygraph 
examination cannot be stated with certainty. In the absence of 
definitive research, field practices have safeguards that consider this 
factor. Subsequent to initial. polygraph testing, if a person reacts 
significantly to a relevant question, the person is advised of this 
outcome in a positive, professional manner. The individual is correctly 
informed that a given question has not been resolved and the examiner 
solicits an explanation. A relatively short-lived, positive 
confrontation seldom has deleterious affects upon subsequent polygraph 
testing. The concern of most persons is that once an individual has 
been told that the individual had problems with the espionage question 
he/she will become sensitized to that question and will consistently 
and significantly respond to that question regardless of his/her 
veracity. Government research, DoD statistics, and the daily practical 
experience of federal polygraph examiners involving counterintelligence 
scope polygraph testing do not support this intuitive position.
    The FY 2000 DoD statistics demonstrate that 199 persons required 
more than two series of questions to complete their examinations. 
During this same time a total of 66 examinations required more than one 
day to complete. In both of these instances, a positive confrontation 
would have occurred between the examiner and the subject of the 
examination. As indicated in the DoD statistics, even though persons 
are confronted about issues arising as part of the screening 
examinations, the vast majority (all but eight of 191) successfully 
completed the polygraph process. Research also supports the position 
that after a person has been found deceptive during initial polygraph 
testing, subsequent testing results in non-deceptive opinions being 
appropriately rendered. Research indicates that the error rates for 
examinees that demonstrate significant responses during initial testing 
can be mitigated if subsequent examinations are more focused. This 
occurs because the initial testing of a screening examination involves 
broad and general questions while subsequent series are able to focus 
the examinee on more direct issues.

    Question 6: Can chemical substances affect the results of a 
polygraph test? Is there a comprehensive list of prescription drugs and 
other substances that are known to alter the results of polygraph 
tests?
    Answer: Virtually all polygraph examinations require that the 
examinee demonstrate the ability to respond to at least one question. 
To effectively alter the results of a polygraph examination, a chemical 
substance would have to demonstrate a differential effect. That is, the 
substance would have to suppress responses to some questions but not to 
others. To the best of our knowledge, no substances with this quality 
exist No known drug is capable of selecting only certain questions on 
which to exert an effect.
    The studies listed below indicate that specific drugs (alcohol, 
propranolol, diazepam, and methylphenidate (meprobamate), and trasicor) 
do not influence the results of polygraph examinations. Only the Waid, 
Ome, Cook, and Ome (1981) study suggests a drug effect, and this result 
is not supported by subsequent research. Moreover this study used a 
testing format rarely used outside of the laboratory and not at all by 
federal polygraph programs.

Bradley M. T., and Ainsworth D. (1984). Alcohol and the 
        psychophysiological detection of deception. Psychophysiology, 
        21(1): 63-71.
Elaad, E., Bonwitt, G., Eisenberg, O., and Meytes,1. (1982). Effects of 
        beta blocking drugs on the polygraph detection rate: A pilot 
        study. Polygraph, 11:229-233.
Gatchel RJ., Smith J.E., and Kaplan N.M. (1.983). The effect of 
        propranolol on polygraphic detection of deception. Abstract of 
        unpublished manuscript, University o# Texas Health Science 
        Center, Dallas, TX 75235.
Iacono, W.G., Boisvenu, G.A., and Fleeting, J.A. (1984). Effects of 
        diazepam and methylphenidate on the electrodermal detection of 
        guilty knowledge. Journal of Applied Physiology, 69(2): 289-
        299.
Iacono W.G., Cerri A.M., Patrick C.J., and Fleeting J.A.E. (1987). The 
        effects of antianxiety drugs on the detection of deception. 
        Psychophysiology, 24: 594 (abstract).
Waid W.M., Orne E.C., Cook M.R., and Orne M.T. (1981). Meprobamate 
        reduces accuracy of physiological detection of deception. 
        Science, 212: 71-73.

    The Department of Defense Polygraph institute funded the Cail-
Sirota and Lieberman (1995) study. This study resulted in establishing 
a database relating to drugs and their influence on the outcomes of 
psychophysiological detection of deception examinations. The Department 
of Defense Polygraph Institute lesson plan titled, ``Pharmacology Drugs 
and Psychophysiological Detection of Deception Testing,'' dated January 
2001, provides a list of drugs that examiners could expect to encounter 
and the drug's effects upon the individual.

    Question 7: Is there any research indicating whether certain 
personality types have an easier time passing polygraph tem7
    Answer: There is no research to indicate that the effects of 
personality variables are consistent for the various polygraph 
techniques. Personality is not an explicit component in any of the 
theories of polygraph, and it is not viewed as an important factor by 
field practitioners, which may explain why it has rarely been the focus 
of investigation in polygraph research. Some researchers have reported 
on the influence of demographic and psychological variables in their 
polygraph validity studies. Refer to attached Table for a summary of 
those effects.

    Question 8: Is there any research indicating whether certain ethnic 
or social groups have an easier time passing polygraph tests?
    Answer: Since the 1960s, university and government researchers in 
the U.S. and elsewhere have conducted research on ethnicity and the 
polygraph. The trend has been that there are no meaningful differences 
in accuracy, but the research evidence has mot eliminated ethnicity 
entirely as a factor. For example, desert-dwelling Bedouins have shown 
a dampened responsiveness in one channel but not in another channel. 
Similar results were found for Icelandic criminals. To date, among the 
population typically afforded polygraph testing in the U.S., an effect 
for ethnicity alone has not been shown to be reliable.

    Question 9. How do you insure that routine polygraph tests do not 
probe into purely private matters? Are there arty questions that are 
off What safeguards exist to prevent the release of private 
information?
    Answer: Agencies provide written guidance to examiners that 
prohibits examiners from probing issues that are not related to the 
matter under inquiry. Individual agency policy requires that all 
questions asked during polygraph examinations must be reviewed with the 
examinee before the examination questions asked must be of special 
relevance to the subject matter under inquiry. Questions probing a 
person's thoughts or beliefs that are not related directly to the 
matter under inquiry are prohibited. The probing of a person's beliefs 
(such as religious beliefs and affiliations, beliefs and opinions on 
racial matters, and political beliefs and af Eiliations of a lawful 
nature) and questions that have no security implication are prohibited.
    The federal polygraph standards state that all relevant questions 
must pertain directly to the matter under investigation or to the 
issue(s) for which the examinee is being tested. The federal polygraph 
standards also require that all questions asked during the data 
collection phase of the examination be reviewed with the examinee prior 
to the initiation of the examination.
    The rights of the individual examinee are a primary consideration 
of the Quality Assurance Program, which is a program administered by 
the Department of Defense Polygraph Institute. This program verifies 
that each participating agency complies not only with their agency 
policies but also adheres to the federal polygraph standards. The 
Quality Assurance Program assures compliance through the use of 
biennial on-site inspections in which the agency's quality control 
procedures, policies, and the samplings of the examinations conducted 
by that agency are reviewed. During the inspection process a random 
sample of between 50 to 100 polygraph examinations is reviewed. As part 
of the examination review, the motes produced by the examiner during 
the examination are scrutinized to ascertain what issues were discussed 
with the examinee during the conduct of the examination. Any 
discrepancies are noted and corrective action recommended to the 
agency.



                                

    Responses of Michael H. Capps to questions submitted by Senator 
                                Grassley

    Question 1: Let's say that an employee polygraph exam ends with a 
deceptive result with no admission of guilt. How do agencies deal with 
this situation? How about an inconclusive result?
    Answer: My understanding is that policies concerning the use of 
polygraph vary across agencies. I cannot state with certainty how 
individual agencies express and carry out certain policies.

    Question 2: My understanding is that most examiners within the 
ranks of federal law enforcement are non-supervisory or journeyman 
level personnel Can we expect these agents to adequately administer 
polygraph examinations to Senior Level officials within their own 
agency?
    Answer: Based upon their training and experience, senior field 
examiners are capable of conducting valid examinations of senior agency 
personnel. If a welt-trained examiner uses a standardized polygraph 
procedure, very accurate results can be expected (Raskin, 1988). It is 
noted that DoDPI is the U.S. government's consolidated training 
facility for polygraph examiners from all federal agencies. To qualify 
for entry into the program, a candidate must be a U.S. citizen, be at 
least 25 years of age, hold a 4year degree or demonstrate an ability to 
master graduatelevel courses, have two years of investigative service, 
have completed a background investigation to confirm a sound 
temperament and character, and benominated and supported by his or her 
home agency. The DoDPI polygraph curriculum is taught at the master's 
degree level and provides a balance of a challenging academic load and 
technical skills practica. Those students who satisfactorily complete 
the DoDPI education program are released to their home agencies where 
they serve internships and remain subject to quality control and 
continuing education requirements for their entire professional careers 
as Federal polygraph examiners.

    Question 3: Will there be adverse consequences for employees who 
refuse to take a polygraph examination?
    Answer: My understanding is that policies concerning the use of 
polygraph vary across agencies. I cannot state with certainty how 
individual agencies express and carry out certain policies.

    Question 4: If there are to be adverse consequences for not taking 
the exam, will this create an uncooperative emotional condition that 
could affect the results of an exam?
    Answer: To my knowledge there has never been any research to 
address this issue.

    Question 5. FBI regulations prohibit the use of the polygraph as a 
``substitute for logical investigation by conventional means'' (FBI 
Poly. Reg. 13-22.299(2)). Does this mean that, if all other factors are 
in order, the failure of a polygraph examination in the context of a 
national security update will not necessarily result to an adverse 
action?
    Answer: I am not familiar with the policies and practices of the 
FBI and cannot provide information responsive to this question.

                                

 Responses of William G. Iacono to questions submitted by Senator Leahy

            (Questions have been shortened and paraphrased)
    Question 1: Is there any report in the scientific literature 
establishing that polygraph screening has a higher accuracy rate than 
90%?
    No. If anyone says this Is true, they are likely to be either 
misrepresenting the scientific literature or citing nonscientific 
opinion from polygraph or police trade journals.

    Question 2: Regarding the likelihood that Robert Hanssen would have 
reacted with greater than 99 certainty had he taken a polygraph, is 
there any reliable basis to estimate the probability that particular 
person would or would not pass a national security screening polygraph?
    No. The claim that Hanssen could have been detected with greater 
than 99% certainty is impossible to support using any credible 
scientific data. Besides the fact that these tests are not capable of 
such accuracy, Hanssen would probably have been smart enough to learn 
how to use countermeasures to defeat any test he took. As I mentioned 
In my oral Senate hearing testimony, information about countermeasures 
can be obtained at libraries, from books (e.g., David Lykken's ``A 
Tremor in the Blood ''), and the internet (at http:/Iantipolygraph.org/
pubs.shtrol).

    Question 3A: Given that there are 3 spies per 10,000 people, is it 
not likely that if you give polygraphs to 10,000 people in order to 
catch, three spies, you will get hundreds of false positive responses.
    If the charts were scored according to government standards so that 
Individuals responding more strongly to relevant questions would be 
deemed to have failed the polygraph, it is likely that there would be 
over 2,000 false positives. The only reason such high rates of false 
positives are not currently In evidence is that government examiners, 
fully aware of the high rate of false positives, pass most of those 
whose charts indicate a failed polygraph to avoid the embarrassment and 
chaos that would follow if large numbers of individuals failed.

    Question B: Given that the three spies failed tests are included 
among, those of hundreds of innocent people who failed the test, how 
are investigators (illegible) to find the three real spies and not 
unfairly cast suspicion on all of the innocent employees who have false 
positive results?
    There is no way these dual objectives can be attained. The only way 
to be certain all three spies would fail the tests would be to fail 
every single person who takes one. Likewise, false positives can be 
eliminated by passing everyone. If the test was 90% accurate (very 
unlikely) and none of the spies would be caught at the expense of 1,000 
innocents failing. It would be very difficult to identify the few spies 
in this large group. It would be even more difficult to do so without 
negatively impacting the careers of the 1,000 innocents failing. It 
would be very difficult to identify the few spies in this large group. 
It would be even more difficult to do so without negatively impacting 
the careers of the 1,000 innocents as their lives are turned upside 
down by the type of thorough investigation that would be needed to 
resolve conclusively every failed polygraph.

    Question 4: Should someone be excluded from government employment 
solely because the person failed a polygraph?
    Answer: No. The vast majority of those who fail are not guilty of 
any offense that should preclude employment. Using these invalid tests 
to deny them employment is a violation of their civil rights and it 
deprives the government of highly qualified employees. It is also cost 
ineffective because often polygraph tests are administered after 
lengthy, costly procedures have been completed and the determination 
made that the applicant is likely to be suitable for employment.
    What specific steps should be taken to make sure no one is denied 
employment for failing a polygraph test?
    A law passed by Congress is required because current law does not 
prohibit this from occurring.

    Question 5: If someone is told they have failed a polygraph, is it 
more likely a person will have an adverse reaction to a second 
polygraph?
    Answer: No studies have been carried out to address this question. 
In fact, no studies have been done to determine if polygraph tests 
produce consistent results consistent results from one occasion to 
another. Nevertheless, it is highly likely that retesting a person and 
requiring that both tests be failed for adverse action to result will 
not the rights of an employee. First, it is virtually never the case 
that a second test is conducted with the examiner blind to the results 
of the first test. That being the case, the only way someone can pass 
the second test is if the second examiner finds the first examiner, a 
likely friend or colleague, was wrong, an unpalatable outcome. Second, 
innocent people do not fail tests at random. The factors that caused 
them to fail the first test are likely to cause them to fail the second 
test, especially now that they have no reason to believe the tests are 
accurate.

    Question 6: Can chemical substances affect the results of a 
polygraph, and is there a comprehensive list of substances known to 
affect polygraph results?
    Answer: There is no list of substances known to affect polygraph 
tests because there is very little research on this question. There are 
hundreds of drugs that could influence test outcomes, only a few of 
which have received any study at all. The effects of (illegible) drugs 
have received no research attention. I have published three papers 
(illegible) of propranolol, diazepam, meprobamate, and alcohol were 
(illegible) types of polygraph tests (but not a screening-type test). 
None of the drugs enabled guilty individuals to pass their test. For a 
drug to affect directly polygraph outcome, it must attenuate the 
response to the relevant question while having no comparable effect on 
the control question. It is unlikely that many drugs could be expected 
to have such a selective effect. However, there are ways drugs may 
indirectly affect polygraph outcome. For instance, the effects of drugs 
that specifically affect the physiological measures that compose 
polygraph tests have received little attention. Sweat glands (GSR 
channel) and cardiovascular activity (cardio or blood pressure 
channel), for example, are both innervated by neurons that use the 
neurotransmitter acetylcholine. Drugs that block this neurotransmitter 
(there are many) may greatly attenuate the likelihood that the GSR and 
cardio channels are responsive enough to be useful distinguishing the 
size of response between relevant and control questions. This would 
leave the outcome of a test to be determined primarily by respiratory 
activity. Respiration is the least reliable of the three channels that 
compose a polygraph test, and Is under voluntary control, thus making 
it easy to manipulate. Hence, the use of these drugs could confer an 
advantage a guilty person taking a polygraph.

    Question 7: Is there any research showing that certain personality 
types have an easier time passing a polygraph?
    Answer: There Is research Investigating a subtype of antisocial 
personality disorder called psychopath). Psychopaths are skilled liars 
who experience no remorse for their antisocial behavior. Two studies 
have found that psychopaths do not have an easier time passing 
polygraphs when the outcome of the test is based on the physiological 
data. However, the government's own data indicate that many individuals 
who fail the physiological test nonetheless are passed by their 
examiners because they convince them they have done nothing seriously 
wrong. Impression management through lying is exactly what psychopaths 
are good at. Hence, there is good reason to believe they could pass 
screening tests.

    Question 8: Is there any research showing that certain ethnic or 
social groups have an easier time passing a polygraph?
    Answer: There are no investigations examining how ethnicity of the 
examine affects his or her physiological responses. Nor is it known how 
the ethnic biases of an examine tested by a polygrapher of different 
ethnicity affect the physiological data. However, as noted above, 
whether a person passes a test depends on the subjective judgment of 
the polygrapher. If the polygrapher holds racial stereotypes or has 
ethnic biases, these attitudes will affect how the polygrapher decides 
the outcome of tie test.

    Question 9: Now do you ensure that routine polygraph tests do not 
probe Into purely privates matters? Are there any questions that are 
off limits? What safeguards exist to prevent the release of private 
information?
    Answer: Apparently with the exception of the CIA, government policy 
prohibits tests that get into lifestyle issues. However, examinees I 
have spoken with state that once the standard question set has been 
asked, examiners frequently delve into private matters in an effort to 
``clarify'' the meaning of reactions they get to certain questions. The 
only way to guarantee employee right is to video or audiotape all 
polygraph tests, giving a copy to the examinee as soon as the test is 
over. Then examiners will avoid these kinds of questions because they 
will know they can be held accountable. Currently, tests are either not 
recorded or they are and the (illegible) is not given immediate access 
to the tapes. Hence, examinee claims of mist (illegible) be verified.

                                

   Responses of William G. Iacono to questions submitted by Senator 
                                Grassley

    Question 1: How do agencies deal with a polygraph that ends in a 
deceptive result with no admissionof guilt?
    Answer: Government data from the DOD annual reports to Congress 
reveal that typically no formal action is taken against employees in 
this position when they take counter intelligence scope polygraphs. 
However, left unansered is how the careers of these persons are 
affected by such an outcome. Do they get good assignments and are they 
promoted? Jeffrey Smith, former CIA General Counsel, has noted that in 
the CIA (CIA testing is not included in the DOD annual reports to 
Congress) there have been many employees whose careers were put on hold 
as a consequence of deceptive polygraphs. What ultimately has happened 
to these people's careers?

    Question 2: How about an inconclusive result?
    Answer: Inconclusive results require additional testing until the 
examiner is willing to make a deceptive or truthful verdict.

    Question 3: Can we expect journeyman level polygraphers to 
adaquately administer polygraphs to senior officials in heir own 
agency?
    Answer: No. Examiners are only human. They know they cannot fail a 
superiro without corroborating evidence of wrongdoing. The only way to 
get around this problem would be to guarantee polygraphers job security 
and career advancement no matter how they call cases. This would be bad 
policy, however, because it would formally establish polygraphers as a 
type of judge/jury that answers to no one.

    Question 4: Will there be adverse consequences for employees who 
refuse to take polygraphs?
    Answer: By law, they can be denied access to classified data. This 
can have a substantial effect on their careers, and likely would 
involve re-assignment to other jobs for which the employee is 
qualified. Doe has admitted however, that if such jobs do not exist 
within commuting distance of an employee's current job location, 
termination of employment may result.

    Question 5: If there are adverse consequences for not taking the 
exam, will this create an uncooperative emotional condition that could 
affect the results of the exam?
    Answer: Yes. The polygraph profession's code of ethics requires 
that exams not be given without an individual's consent. Government 
workers cannot voluntarily give consent, and the consent forms DOE 
examiners use no longer contain the word ``voluntary.'' Being forced to 
take an exam is likely to make examinees overly anxious, increasing the 
likelihood of false positive outcomes.

    Question 6: Regarding the FBI, will failing a national security 
update polygraph when all other factors are in order result in an 
adverse action?
    Answer: This is a question for the FBI to answer, but I would 
encourage the government to conduct the following study: Identify all 
individuals who have had deceptive outcomes on polygrah tests. Then 
match them to a group of employees of similar rank and qualifications. 
Following the paths of both groups for five years and determine if the 
members of the two groups experien e similar career advancement. I am 
worried that those in the failed group will be disproportionately 
likely to quit and find their careers stalled. Such a study could be 
done no using DOD data from all the people tested with counter 
intelligence scope polygraph tests.

                                

 Responses of Richard W. Keifer to questions submitted by Senator Leahy

    Answer 1: The Department of Defense Study DOD P 194-R-0009 provides 
an accuracy of 98% with programmed guilty and 83.3 % programmed 
innocent. Testimony at the hearing was provided indicating laboratory 
studies might not generalize to real life testing.

    Answer 2: Confidence levels can be established to estimate the 
probabilities that you will get certain results in certain populations. 
Therefore an estimate of the accuracy of any individual can be 
established. Studying the results of actual testing can then check the 
reliability of these estimates. The key word is ``reacted'', and I am 
confidant Hansen would have reacted. Whether or not he would have been 
identified as a spy is up to the agency to determine. The use of Ames 
not being caught on a polygraph is a good example of the difficulty of 
espionage cases. It is my understanding Ames was identified during 
polygraph testing as having problems and was cleared by the CIA's 
adjudication process.

    Answer 3: My assumptions of 3 in 10,000 was used in 1994 as a model 
for the conduct of examinations for the FBI so we could anticipate 
results and define resourses we would need to manage the program. Your 
assumption in 3a. is correct regarding the first polygraph examination. 
It is my opinion that reexaminations will reduce the false positives 
and it is my understanding from agencies that conduct this testing this 
is the case. Because some agencies could be lax, and simply ``pass 
everyone'', and independent audit must be conducted. How investigators 
uncover the real spies and not unfairly cast suspicion on the false 
positives is the some problem these investigators face with the entire 
agency. The polygraph has reduced the numbers in that pool 
significantly. What you know with 99.9% confidence is the spy is in 
that pool.

    Answer 4: For pre-employment polygraph examinations, I do not 
believe anyone should be excluded based solely on the results of the 
polygraph. The use of the polygraph as an aid to investigations and not 
a substitute for it is a policy I support. To ensure this policy is in 
effect I would establish written policies for each agency and audit 
their results. Since a polygraph report is part of their personnel 
file, I would have the report state that reactions were noted or not 
noted. Deception or non-deception is a conclusion about what these 
reactions mean. Most agencies have written guidelines in these matters.

    Answer 5: Being told you have failed questions could cause 
reactions to further testing on the same questions. If interrogated in 
a strong manner, and if innocent, a sensitization could occur. There 
are methods that are effective in retesting and I use them frequently.

    Answer 6: The key to polygraph is that we are monitoring relative 
differences between reactions. Ever, if a drug stabilized blood 
pressure and minimized that change possible in blood pressure, it would 
do so throughout the entire test. The relative comparisons between 
questions are still there. Study to date show drugs do not affect the 
accuracy of the polygraph. I don't have the research available but I 
believe it was conducted by Dr. Drew Richardson of the FBI and some may 
be available at the DODPI. If drugs are suspected they are easily 
detected.

    Answer 7: There is research by Raskin and Hare on prison 
populations of diagnosed psychopaths that indicates they are detectable 
at approximately the same levels as the general population.

    Answer 8: See Department of Defense studies regarding race and 
gender difference in polygraph testing. It appears there are no 
relative differences in rates of detection. Further, polygraph is used 
in Israel. Singapore, Japan, Mexico, and Canada.

    Answer 9: To insure polygraph does not probe into private matters, 
you could record sessions. I believe the privacy concern should 
outweigh the burdensome records keeping requirements now in place. 
Written policies have been if effect my entire government career in the 
FBI Manual of instructions regarding prohibited questioning. These 
questions ranged from religion, sexual preference, union activities, 
etc, Management rigorously enforced these privacy concerns.

                                

   Responses of Richard W. Keifer to questions submitted by Senator 
                                Grassley

    Answer 1: Deceptive with No Admissions of Guilt or an inconclusive 
result. I have been in the private sector since 1996, and am not 
certain what individual agencies do now. I am certain most individuals 
would initially be offered a reexamination. If these individuals 
continued to react I would suspect the employees past work product and 
access would be closely reviewed, and checked against internal 
espionage investigations for suspicious patterns. What additional 
proactive investigative steps would then be conducted, I do not know. 
There should be a defined adjudication process in place. Some agencies 
do a modest amount of investigation, and if they can't resolve the 
matter, refer these cases to the FBI for adjudication.

    Answer 2: Most examiners in law enforcement are GS 12 and GS 13's. 
These agents now conduct investigations of corruption involving the 
highest levels of the government and also conduct internal 
investigations. I believe the examiners need to be assigned in a 
separate administrative division to maintain their independence. 
Examiners should not test anyone they know. Audit and compliance will 
insure the correct policies are being followed.

    Answer 3: Will there be adverse consequences for not taking the 
examination, and would this create an uncooperative condition that 
could affect the results of an examination? From my past experience I 
would think there would be administrative consequences to anyone who 
refuses to follow agency policies. Therefore people could be ordered to 
take an examination. I believe these conscientious objectors should be 
prepared for the consequences. Internal security cannot be perceived as 
a game. If any testing was conducted, a recorded record should be 
maintained. Noncooperation could influence the results but may not. I 
would then judge these matters on a casebv-case basis.

    Answer 4: Regarding FBI Regulations. I am not a current FBI 
employee. FBI Polygraph Reg: 13-22.299(2) was the standard that was 
used in criminal specific testing and is a policy I support. I do not 
know what policies are now in effect in applicant and security testing. 
In the area of employee testing there is an important distinction 
between those who react to questions and those who are concluded to be 
deceptive. I would interpret the history of the use of the polygraph in 
the FBI and our current knowledge of the capabilities and limitations 
of the polygraph to mean that adverse action will not necessarily 
result.

                                

   Responses of Mark S. Zaid to questions submitted by Senator Leahy

    Question 1: In Mr. Kiefer's testimony, he refers to 'prior 
studies'' indicating that the polygraph has ``an accuracy rate'' of 
between 90 percent and 99 percent. Is there any report in the peer-
reviewed scientific literature establishing that polygraph screening 
has a higher accuracy rate than 90 percent? If so, could you please 
identify that study.
    Answer: Almost every available polygraph study conducted pertains 
to specific incident criminal investigations (i.e., identifying the 
thief who embezzled funds). This question properly addresses the most 
significant aspect affecting current federal polygraph policies. The 
Congress needs to be most concerned about the reliability/validity of 
polygraph screening tests. It is these types of tests that are 
administered every year to thousands of applicants for federal 
employment, as well as tens of thousands of current federal employees 
who undergo routine security investigations. The primary purpose of the 
applicant screening test is to determine suitability while the security 
screening test is designed to expose espionage. However, there is 
absolutely no scientific evidence that either a of screening test is 
reliable or valid. The few studies that exist prove that screening 
tests should be stopped immediately.
    The largest study of polygraph tests used for national security 
screening ever conducted--``Studies of the Accuracy of Security 
Screening Polygraph Examinations''--was published in 1989 for the 
Department of Defense's Polygraph Institute Down (``DoDPI'') by Gordon 
H. Barland, Charles R. Honts and Steven Barger. Although the report was 
never classified, the government declined to publish it in the open 
literature. Indeed, when the results were first made known to the 
respective agencies involved there was tremendous pressure to classify 
the entire report. One of the authors, in fact, was forbidden by his 
parent agency from publishing or presenting the results. As a 
concession to the agencies involved, the association of the agency 
names with their performance data was classified.\1\ A copy of the 
report is at http://truth. boisestate. edu/raredocuments/bhb. html.
---------------------------------------------------------------------------
    \1\ The agencies have since been identified as the Army INSCOM, the 
Air Force Office of Special Investigations, the National Security 
Agency and the Central Intelligence Agency.
---------------------------------------------------------------------------
    The study reports on three mock espionage experiments using 
different polygraph screening techniques. In Experiment One, 94% of the 
innocent subjects were cleared, but only 34% of the guilty subjects 
were identified as deceptive. Thus, the false negative rate (i.e., 
guilty individuals being declared innocent) was a staggering 66%. 
Experiment Two correctly classified only 79% of those who were innocent 
and 93% of those who were guilty. Finally, Experiment Three identified 
90% of the innocent subjects and 81% of the guilty subjects. It is 
important to note that the examiners used in these experiments were 
trained federal polygraphers who regularly conducted periodic national 
security tests for their agencies. Following this primary study, four 
follow-up studies were conducted by the Department of Defense. The 
results of each supported and strengthened the findings of the primary 
study.
    Professor Honts, one of the primary authors of the DoDPI study and 
a strong advocate of the polygraph, has harshly criticized the federal 
government's use of polygraph testing for screening purposes. I 
strongly recommend that the Committee review two of his articles on the 
topic: ``The Emperor's New Clothes: Application of Polygraph Tests in 
the American Workplace'', Forensic Reports, 4:91-116 (1991)(available 
at http://truth. boisestate.edu/raredocuments/ENChtml), and 
``Counterintelligence Scope Polygraph (CSP) Test Found To Be Poor 
Discriminator ``, Forensic Reports, 5: 215-218 (1992)(available at 
http://truth. boisestate. edulraredocumentslCSP.html).
    With respect to specific incident polygraph studies, from which Mr. 
Kiefer derives his statistics from, there have been many studies 
regarding the reliability of the polygraph when used in this manner. 
The resulting figures have varied widely. Though somewhat dated, let me 
recommend one report in particular for review. In November 1983, the 
Office of Technology Assessment (``OTA '') issued a report entitled 
``Scientific Validity of Polygraph Testing: A Research Review and 
Evaluation''. The OTA compiled the results of six prior reviews of 
polygraph research, ten field studies, and fourteen analog studies that 
it determined met the minimum scientific standards. The results were as 
follows:
        1) Six prior reviews of field studies:
         - average accuracy ranged from 64% to 98%.
        2) Ten individual field studies:
         - correct guilty detections ranged from 70.6% to 98.6% and 
        averaged 86.3%;
         - correct innocent detections ranged from 12.5% to 94.1% and 
        averaged 76%;
         - false positive rate (innocent persons found deceptive) 
        ranged from 0% to 75% and averaged 19.1 %;
         - false negative rate (guilty persons found nondeceptive) 
        ranged from 0% to 29.4% and averaged 10.2%.
        3) Fourteen individual analog studies:
         - correct guilty detections ranged from 35.4% to 100% and 
        averaged 63.7%;
         - correct innocent detections ranged from 32% to 91% and 
        averaged 57.9%;
         - false positives ranged from 2% to 50.7% and averaged 14.1 %;
         - false negatives ranged from 0% to 28.7% and averaged 10.4%.
    These statistics led to the enactment of The Employee Polygraph 
Protection Act of 1988, 29 U.S.C. Sec. 2001 et sea. The Act outlawed 
the use of polygraph screening tests in the private sector. Prior to 
enactment, it was estimated that each year at least 400,000 honest 
workers were wrongfully labeled deceptive and suffered adverse 
employment consequences. However, the federal government was exempted 
from the legislation.
    Given that there are no studies that support either the need or 
usefulness of this exemption, the Committee should consider legislation 
to have it removed.

    Question 2: Mr. Kiefer opines that, if Robert Hanssen had been 
given a polygraph examination, he would have ``reacted with greater 
than 99% certainty.'' Yet we know that Aldrich Ames was not caught even 
though he was given two polygraph examinations while he was at the CIA 
and that other guilty people have passed polygraph tests. Is there any 
reliable basis to estimate the probability that a particular person 
would or would not pass a polygraph test?
    Answer: Mr. Kiefer's statement was worded perfectly for use in live 
testimony in order to generate shock value, but it has absolutely no 
basis in fact. It is no more based on reality than the magic of pulling 
a rabbit from a hat. Indeed, as described above, the only government 
studies available on screening examinations reveal that guilty 
individuals are far more likely to escape detection than even an 
innocent person will be falsely accused as high as 66% of the time.
    However, more than anything Mr. Kiefer's statement illustrates the 
enormous significant dangers that exist with respect to polygraph 
screening and the negative impact it can have on federal employees. Mr. 
Kiefer served as a distinguished Special Agent of the Federal Bureau of 
Investigation for more than two decades, including many years as a 
polygrapher, and is a former past president of the American Polygraph 
Association. Based on my experiences, his strong bias is quite typical 
of government polygraphers in general. With that type of obvious bias 
revealed publicly, it is not unreasonable to assume that such an 
attitude during an examination would have negative consequences on many 
innocent individuals simply because the polygrapher personally believed 
something was suspect.
    In any event, for purposes of my response, let us presume Mr. 
Kiefer's statement is accurate and Mr. Hanssen would have registered 
deceptive in a routine screening examination. What then would have 
occurred? Based on all publicly available information concerning Mr. 
Hanssen's case--and as my legal practice substantially involves 
national security matters, I am following the investigation very 
closely--there is little, if any, incriminating evidence that would 
have been discovered through a follow-up investigation. The 
overwhelming evidence against Mr. Hanssen was obtained directly from a 
foreign source or agent. Unlike other spies such as Aldrich Ames, 
Harold Nicholson, or Edward Howard, there was no suspicious evidence of 
significant debt, serious employment disputes, drug or alcohol abuse or 
marital difficulties that would likely have prompted additional 
investigations and the exposure of espionage activities. Therefore, 
even if Mr. Hanssen had registered deceptive--and there is no 
scientific basis to conclude this to be so the result would have likely 
been no more indicative of a truthful result as that of a false 
positive.
    While it appears so simple to discuss Mr. Hanssen's case in 
retrospect, we cannot use the knowledge we possess now in order to 
analyze the possible scenarios that could have occurred had a polygraph 
examination been administered. For all anyone knows, a deceptive 
reading five, ten or fifteen years ago would have meant Mr. Hanssen was 
being falsely accused of something he never did, as occurs every year 
to federal employees and applicants, and his career would have unfairly 
suffered as a result.

    Question 3: Everyone acknowledges that 'false positive'' polygraph 
examinations can occur in which innocent people will show deceptive 
reactions. In addition, Mr. Kiefer estimates that ``there might be a 
maximum of 3 spies in a population of 10, 000.'' Assuming for the sake 
of argument that Mr. Kiefer's estimate of the frequency of espionage is 
correct:
    a. Is it not likely that if you give polygraphs to 10, 000 people 
in order to catch the three spies, you will get hundreds of false 
positive responses?
    b. Assuming that the three spies all fail their polygraph tests, 
they would be only three out ofperhaps hundreds of employees who failed 
the test. How are investigators going to be able to find the three real 
spies and not unfairly cast suspicion on all of the innocent employees 
who have false positive results?
    Answer: Attorney General John Ashcroft recently admitted that there 
exists a 15% false-positive rate. ``Spy-Wary FBI Agrees to 
Polygraphs'', Los Angeles Times, Mar. 2, 2001. Based on this figure, up 
to 1,500 individuals will be falsely accused of espionage. Even 
applying the most conservative false-positive figures, say 1%, then 100 
individuals will be stigmatized in order to catch three spies. This 
hypothetical scenario became a reality at the Central Intelligence 
Agency following the arrest of Aldrich Ames in 1994. Approximately 300 
employees had their careers put on hold, some for as long as six years, 
until they were finally exonerated of any wrongdoing. Some have likely 
never recovered from the experiences, nor will they.
    Given existing policies at the federal agencies, it is virtually 
impossible to ensure that unfair suspicion will not be conferred on 
individual employees during a witch hunt for a spy. This is the essence 
of the public policy balance that this Committee must address. Is it 
fair and appropriate to knowingly ruin innocent careers while on a 
fishing expedition for a spy who likely will never be exposed by the 
polygraph? In my opinion, it is not.

    Question 4: Do you believe it is appropriate to exclude someone 
from government employment, without any independent corroborating 
evidence of deception or other information indicating that the 
applicant is unqualified for the position, solely because that person 
failed a polygraph? If not, what specific steps should be taken to 
insure that this does not occur?
    Answer: Obviously, I do not. Indeed, this is the very issue that is 
being litigated in Croddy et al. v. FBI et al., Civil Action No. 00-
0651 (Mar. 15, 2000 D.D.C.)(EGS) and John Doe #6 et al. v. FBI et al., 
Civil Action No. 00-2440 (Oct. 11, 2000 D.D.C.)(EGS). Federal agencies 
routinely rescind conditional job offers based solely on polygraph 
results. I would respectfully refer you to the pleadings in these two 
cases for further discussion of the relevant legal analysis. Copies can 
be found at the following websites: www.nopolygraph.com, 
www.stopolygraph.com and www.antipolygraph.org. Based on my 
experiences, I would recommend that either screening eligibility tests 
are eliminated or that a requirement be imposed that a background 
investigation must first be conducted to collaborate any polygraph 
results before the information can be considered in the employment 
decision.

    Question 9: How do you insure that routine polygraph tests do not 
probe into purely private matters? Are there any questions that are off 
limits? What safeguards exist to prevent the release of private 
information?
    Answer: Although the American Polygraph Association, the Employee 
Polygraph Protection Act and many state licensing laws prohibit inquiry 
into such areas as religious beliefs or affiliations, beliefs or 
opinions regarding racial matters, political beliefs or affiliations, 
beliefs, affiliations or lawful activities regarding unions or labor 
organizations and sexual preferences or activities, there are few 
prohibitions imposed upon the federal government. For example, the 
United States Secret Service routinely questions applicants on sexual 
behavior, both lawful (premarital sex) and unlawful (sexual involvement 
with animals).
    The only means by which to ensure certain areas of inquiry are 
forbidden is to require the federal government to comply with the 
Employee Polygraph Protection Act. While some exceptions may be 
necessary, no agency should be permitted to question individuals on 
topics that do not reasonably relate to the skills needed to adequately 
perform the position in question.
    With respect to the release of private information, there are 
essentially no existing safeguards. The extent to which a federal 
agency can disseminate polygraph results to other federal, state or 
local agencies is governed by the Privacy Act of 1974, 5 U.S.C. 
Sec. 552a et seq. The sharing of information is explicitly permitted 
under the Act's routine use exception. Id. at Sec. 552a(b)(3).
    For example, the FBI maintains a system of records--JUSTICE/FBI-
002--within its Central Records System that pertains to applicants for 
employment with the FBI. The system includes all records and 
information relevant to an applicant's investigation, personnel 
inquiry, or other personnel matters. The FBI may disclose all personal 
information and records--even if inaccurate--from this system as a 
routine use to any federal agency where the purpose in making the 
disclosure is compatible with the law enforcement purpose for which it 
was collected, e.g., to assist the recipient agency in conducting a 
lawful criminal or intelligence investigation, to assist the recipient 
agency in making a determination concerning an individual's suitability 
for employment and/or trustworthiness for employment and/or 
trustworthiness for access clearance purposes, or to assist the 
recipient agency in the performance of any authorized function where 
access to records in this system is declared by the recipient agency to 
be relevant to that function.
    As a result of this ability to freely share information, 
individuals who falsely registered deceptive on one agency's polygraph 
examination may have that information used against them by another 
agency, without ever being given an opportunity to challenge the 
underlying allegation of deception. Unfortunately, the enactment of 
additional legislation will be required to minimize the extent to which 
a federal agency can disseminate information pertaining to polygraph 
examinations. Current law is clearly inadequate.

                                

  Responses of Mark S. Zaid to questions submitted by Senator Grassley

    Question 1: Let's say that an employee polygraph exam ends with a 
deceptive result but with no admission of guilt. How do agencies deal 
with this situation? How about with an inconclusive result?
    Answer: Unfortunately, it is difficult to provide a precise answer 
to this question as procedures differ from agency to agency. Typically, 
however, should either of the situations occur above, the agency will 
initiate further investigation into the individual's background and 
activities. Oftentimes, the employee may be transferred to a non-
sensitive or less sensitive position and may even have promotions 
withheld. On paper, the employee may very well not suffer an adverse 
personnel action. By this I mean, they will continue to hold employment 
and remain at the same pay grade.
    The most recent example describing this type of circumstance is 
that of the FBI. By Memorandum dated March 16, 2001, the FBI announced 
it would institute counterintelligence-focused polygraph examinations 
to employees who occupy certain assignments or occupations. With 
respect to those employees who experience trouble with the polygraph, 
the Memorandum noted:

        Experience has shown that most FBI employees taking the 
        counterintelligence-focused polygraph examination successfully 
        complete the test. However, there may be a very small number of 
        employees whose tests are either inconclusive or are indicative 
        of deception. Polygraph examiners will attempt to fully resolve 
        all unexplained responses through the effective use of thorough 
        pre-and post-test interviews. If, upon completion of a thorough 
        examination, there is still an inconclusive or deceptive 
        response, it will be considered ``unexplained''. Consistent 
        with existing policy, no adverse action will be taken based 
        upon the polygraph results alone. However, more extensive 
        investigation will be initiated to resolve the unexplained test 
        results.

    However, realistically, an employee in this situation will 
unequivocally suffer the equivalent of an adverse personnel decision. 
Some agencies, such as the CIA and FBI, have taken years to finally 
resolve a false-positive or inconclusive polygraph result. Some 
employees may be suspended with pay, which is not always considered an 
``adverse action''. Employees at the CIA who found themselves in such a 
position were not permitted to attain overseas assignments. This is 
often the end of a career for individuals employed within the 
Directorate of Operations. Scientists under contract at the Department 
of Energy who experience polygraph problems will find themselves 
transferred to other positions, which often would negatively impact 
upon their careers. In my written testimony, I described the situation 
of FBI Special Agent Mark Mallah. In his case, it took approximately 
two years of intensive and intrusive investigation before he was 
finally exonerated. He was so disgusted by how he was treated, he 
resigned in protest. Unfortunately, Special Agent Mallah's reaction is 
not unusual, and the U.S. government has lost many fine employees 
strictly because of false polygraph results.

    Question 3: Will there be adverse consequences for employees who 
refuse to take a polygraph examination?
    Answer: Again, this can differ from agency to agency. However, most 
agencies will react in a similar manner. For example, the FBI 
Memorandum referred to above states that those employees who refuse to 
take the test will be subjected to administrative actions which may 
include transfer, a finding of insubordination and disciplinary action 
or a reevaluation of the employee's security clearance.

    Question 5: FBI regulations prohibit the use of the polygraph as a 
``substitute for logical investigation by conventional means'' (FBI 
Poly. Reg: 13-22.299(2)). Does this mean that, if all other factors are 
in order, the failure of a polygraph examination in the context of a 
national security update will not necessarily result in an adverse 
action?
    Answer: Again, by viewing this question solely by the legal 
definition of ``adverse action'' (such as those actions that can be 
appealed to the Merit Systems Protection Board, 5 U.S.C. Sec. 1201.3), 
the conclusion would be accurate. However, as I described above, 
reality dictates otherwise. For all intents and purposes, the employee 
does suffer ``adverse consequences'', though it might not legally be in 
the form of an ``adverse action''.
    This question, however, does raise a larger issue. If such a 
prohibition exists with respect to employees, why should applicants 
receive any less consideration? How ``logical'' is that? There is no 
question that FBI applicants who have received a conditional offer of 
employment, but who then fail their polygraph examination (or register 
inconclusive) are not afforded the opportunity of a background 
investigation. Their job offer is immediately rescinded. More than 
that, the polygraph result is maintained in that individual's personnel 
file, and will be freely disseminated as permitted by law. One 
polygraph examination may stigmatize an individual throughout the 
federal government thereby precluding their future employment and 
contribution to the United States.
    There is something inherently wrong and unfair with the current 
federal polygraph policies that are implemented throughout the 
different law enforcement and intelligence agencies of our government. 
Without intervention by this Committee, there is little chance these 
policies will ever change.
    I trust this additional information proves to be useful. I would be 
happy to elaborate further upon any question, or respond to additional 
inquiries.

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