[Senate Hearing 108-170]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-170

                         DOE POLYGRAPH PROGRAM

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

  TO RECEIVE TESTIMONY ON THE DEPARTMENT OF ENERGY'S POLYGRAPH PROGRAM

                               __________

                           SEPTEMBER 4, 2003


                       Printed for the use of the
               Committee on Energy and Natural Resources


                                 ______

90-082              U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092250 Mail: Stop SSOP, Washington, DC 20402ï¿½090001

               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                 PETE V. DOMENICI, New Mexico, Chairman
DON NICKLES, Oklahoma                JEFF BINGAMAN, New Mexico
LARRY E. CRAIG, Idaho                DANIEL K. AKAKA, Hawaii
BEN NIGHTHORSE CAMPBELL, Colorado    BYRON L. DORGAN, North Dakota
CRAIG THOMAS, Wyoming                BOB GRAHAM, Florida
LAMAR ALEXANDER, Tennessee           RON WYDEN, Oregon
LISA MURKOWSKI, Alaska               TIM JOHNSON, South Dakota
JAMES M. TALENT, Missouri            MARY L. LANDRIEU, Louisiana
CONRAD BURNS, Montana                EVAN BAYH, Indiana
GORDON SMITH, Oregon                 DIANNE FEINSTEIN, California
JIM BUNNING, Kentucky                CHARLES E. SCHUMER, New York
JON KYL, Arizona                     MARIA CANTWELL, Washington

                       Alex Flint, Staff Director
                   Judith K. Pensabene, Chief Counsel
               Robert M. Simon, Democratic Staff Director
                Sam E. Fowler, Democratic Chief Counsel
                 Pete Lyons, Professional Staff Member
                  Jonathan Epstein, Legislative Fellow


                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Bingaman, Hon. Jeff, U.S. Senator from New Mexico................     1
Domenici, Hon. Pete V., U.S. Senator from New Mexico.............    16
Fienberg, Stephen E., Chairman, Committee to Review the 
  Scientific Evidence on the Polygraph, National Research Council
McSlarrow, Kyle E., Deputy Secretary of Energy, Department of 
  Energy.........................................................     3
Tauscher, Hon. Ellen O., U.S. Representative from California.....     2

 
                         DOE POLYGRAPH PROGRAM

                              ----------                              


                      THURSDAY, SEPTEMBER 4, 2003

                                       U.S. Senate,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.

    The committee met, pursuant to notice, at 10:03 a.m., in 
room SD-366, Dirksen Senate Office Building, Hon. Pete V. 
Domenici, chairman, presiding.

           OPENING STATEMENT OF HON. JEFF BINGAMAN, 
                  U.S. SENATOR FROM NEW MEXICO

    Senator Bingaman. Why don't we go ahead and get started? 
Senator Domenici is delayed and asked me to go ahead and start 
the hearing.
    I want to thank Deputy Secretary McSlarrow and Professor 
Fienberg both for appearing today and dealing with this issue, 
which is in my view very important, but one that has been with 
us for quite a while.
    This program to have all of these polygraphs conducted in 
the Department of Energy was inserted in the Senate Armed 
Services bill in August 1999, and that was at the height of the 
concern about the perceived loss of nuclear weapons data to 
foreign governments, particularly the government of China, as I 
remember it. At that time, our Government was developing a case 
against Dr. Wen Ho Lee. There have been numerous questions and 
criticisms about how that investigation and case preparation 
was conducted.
    Also, at that time was a report from the House Select 
Committee on U.S. National Security and Military Commercial 
Concerns with the People's Republic of China, and that report 
pointed out the degree with which sensitive dual-use and 
military technology was being exported to China.
    So when the DOE polygraph program was authorized, we were 
in the midst of a crisis over the alleged loss of nuclear 
weapons data. I am not sure if we have conclusively proven or 
disproven many of the allegations made at that time.
    What still remains, of course, is the polygraph program 
that was put in place at that time. It now screens up to 20,000 
Federal and laboratory employees to counterintelligence 
polygraphs.
    In October 1999, we initiated an amendment in the Armed 
Services Committee to ask the National Academy of Sciences to 
look at the scientific validity of polygraphs. The amendment 
was to build upon the 1983 study that was done by the Office of 
Technology Assessment which found that polygraphs were subject 
to operator bias and had a high degree of variability according 
to the population that they were used with.
    We now have the results of the National Academy of Sciences 
study before us. It adds scientific rigor by demonstrating that 
in a test population of 10,000, with 10 spies included in the 
10,000, 2 of those spies would still pass the test and 1,600 
innocent people would fail. So under the current 1999 
regulations if up to 20,000 employees were tested, that would 
translate into about 3,000 innocent employees who would be 
subjected to additional review. That is almost half the 
population of Los Alamos National Laboratory.
    I believe and have believed for a long time that polygraphs 
do have a role in counterintelligence through their selective 
use when there has been an adequately staffed and funded 
counterintelligence team that has uncovered evidence that a 
particular person or group of persons has engaged in activities 
that might endanger national security and when that person or 
persons voluntarily submit to polygraph exams.
    But using polygraphs as a screening tool, no matter how 
many individuals are screened, in my view, is going to produce 
false positives and false negatives. In the case of false 
positives, it questions a person's patriotism and, in many 
cases undermines morale. In the case of a false negative, a 
well-trained spy like Aldrich Ames escapes to do further damage 
to the country.
    So I think this is a very important issue. It is one that 
is no longer in the headlines but one that is very important 
for us to get resolved.
    So I appreciate Secretary McSlarrow being here to testify. 
Why do you not go ahead with your testimony and I will have a 
few questions of you, and then we will do the same with Dr. 
Fienberg. Thank you.
    [A prepared statement from Representative Tauscher 
follows:]

   Prepared Statement of Hon. Ellen O. Tauscher, U.S. Representative 
                            From California

    I strongly commend Senator Domenici and Ranking Member Bingaman for 
holding this important hearing on the Department of Energy's polygraph 
policies.
    I should add that because of my longstanding concern about this 
issue, I have requested a similar hearing in the House Armed Services 
Committee but that my request has not been granted. I hope Chairman 
Hunter will see fit to do so in the near future.
    I believe I join many lawmakers in saying I was shocked that, in 
spite of an 18-month study by the National Academy of Sciences saying 
that there is no scientific basis for indiscriminate polygraph testing, 
Secretary Abraham still intended to pursue widespread use of polygraphs 
as a matter of Energy Department policy.
    I am relieved that the Energy Department has partially reversed 
course on its highly controversial widespread use of polygraphs, but I 
remain deeply concerned that a dangerous gap between the science and 
the policy remains.
    Section 3152 of the fiscal year 2002 National Defense Authorization 
Act required the Energy Department to take into account the findings of 
the National Academy of Sciences review of the polygraph. That review 
concludedthat the ``accuracy (of polygraph testing) in distinguishing 
actual or potential security violators from innocent test takers is 
insufficient to justify reliance on its use in employee security 
screening in federal agencies.''
    Yet, time and again, the Energy Department has continued to not 
just rely, but to over rely, on polygraph testing as a tool to screen 
personnel - in its proposed rulemaking and now again with a revised 
polygraph policy.
    I have made my position on polygraphs clear. Polygraph testing can 
be useful for specific investigative purposes and perhaps for 
scientists and security personnel working in the most highly classified 
areas, but it cannot be effectively used on a widespread screening 
basis. I continue to fear that the Energy Department's intention to 
subject thousands of lab employees to polygraphs only promotes a false 
sense of security and does nothing to foster good science at our 
national labs.
    We can talk about the questionable science on polygraphs and the 
Energy Department's flawed policy all day long, but Secretary Abraham 
needs to understand how this impacts the men and women at our national 
labs in personal terms. According to the National Academy of Sciences, 
a lab employee who fails an Energy Department polygraph test has more 
than a 99 percent chance of actually telling the truth.
    The Chairman of the National Academy also testified that ``any spy 
or terrorist who takes the DOE's polygraph test is far more likely to 
`pass' the test than to `fail' it--even without trying to `beat' the 
system.''
    The Energy Department cannot continue to hinge the careers of 
scientists on voodoo science, no matter how few or great the number. It 
makes little difference to the scientists at our labs if polygraphs are 
administered to 20,000 or 6,000 when all it takes is onefalse positive 
to ruin a career..
    In fairness to science, security, and the men and women who work at 
our labs, I again urge Secretary Abraham to take a closer look at this 
decision.

  STATEMENT OF KYLE E. McSLARROW, DEPUTY SECRETARY OF ENERGY, 
                      DEPARTMENT OF ENERGY

    Mr. McSlarrow. Thank you, Senator. I am pleased to be here 
to have an opportunity to appear before you to discuss our 
current efforts and intentions regarding a new polygraph 
examination policy, and with your permission, I would like to 
summarize my testimony and submit it in full in the record.
    Senator Bingaman. Please do so.
    Mr. McSlarrow. You described already the legislative 
history, and I know you are well familiar, having authored some 
of those statutory directives. So let me just start off with 
the process beginning with the NAS study that was published in 
October 2002.
    As a result of the statutory directive, we published a 
notice of proposed rulemaking on April 14 of this year. In that 
notice, the Department indicated its then current intent to 
continue the current polygraph program under a new rule. At the 
same time, the Secretary recognized that in the longer term 
some changes might be appropriate, and therefore we asked 
explicitly for public comment during a period which ended on 
June 13 of this year.
    The Secretary then directed me to conduct a review of the 
current policy and to make recommendations based on my review. 
I have worked closely with the NNSA Administrator and the three 
directors of the nuclear weapons labs, and I have discussed 
these issues with counterintelligence professionals, polygraph 
experts, and as part of that review, I have also had access to 
classified summaries prepared by other Federal agencies.
    I have recently completed that review process. Let me say 
up front that this is one of the most difficult public policy 
issues I have had to confront. There is something almost 
talismanic about polygraphs, and that is something I can 
personally attest to since both the Secretary and I took a 
polygraph exam early in our tenure at the Department.
    I found many of the NAS's concerns about the validity of 
polygraph testing to be well-taken. I personally discussed this 
issue, as I know you have, Senator, with many employees of the 
Department, some of whom feel quite strongly that the polygraph 
is a dangerous tool that either has or will deprive us of the 
very talent that is needed to support our national security 
programs. And yet, as a policymaker, I have concluded that the 
utility of polygraphs is strong enough to merit their use in 
certain situations for certain classes of individuals and with 
certain protections that minimize the legitimate concerns 
expressed by the National Academy of Sciences, employees of the 
Department, and other observers.
    I am, therefore, recommending to the Secretary that we 
propose substantial changes to how we use the polygraph in the 
context of our counterintelligence program. In doing so, I 
carefully weighed considerations of fairness to employees with 
national security objectives, and throughout I was guided by 
the NAS report, a study of considerable rigor and integrity, 
both in the sense of what it tells us about what we know and do 
not know about scientific evidence relating to the polygraph 
and in its willingness to make clear the limitations under 
which the study was conducted.
    Because I have recommended that we propose substantial 
changes, if the Secretary accepts my recommendations, I would 
expect that we would publish a new proposed rule.
    Perhaps the most difficult issue involves the use of a 
polygraph as a screening tool. The NAS report points out that 
the generic nature of the questions, for example, asked in the 
traditional counterintelligence scope exam poses concerns for 
validity, concerns that are present to a lesser degree when a 
polygraph exam is focused on a specific set of facts or 
circumstances. Adding to the difficulty for public policy 
makers is the NAS's conclusions that ``virtually all of the 
available scientific evidence on polygraph tests relate to 
studies of specific-event investigations'' rather than its use 
as a screening tool.
    However, Federal agencies deploying the counterintelligence 
scope polygraph as a screening tool for initial hiring or 
initial access have detected applicants for classified 
positions within those agencies who were directed by foreign 
governments or entities to seek employment with those agencies 
in order to gain successful penetrations of our Government. Our 
agencies have also benefitted from the utilization of the 
polygraph screen as part of a periodic security evaluation, and 
I enumerate in the written testimony some examples of the 
success in that regard.
    However, as the NAS report makes clear, there are two 
fundamental issues: problems associated with exam results that 
produce false positives or false negatives.
    False positives pose, as you said, Senator, a serious 
dilemma. They clearly affect the morale of those for whom such 
a result is reached, and a certain number can plausibly be 
expected to affect morale of a sizeable portion of the 
workforce. They risk interrupting the careers of valuable 
contributors to our Nation's defense. They also risk wasting 
valuable resources, resources that could be more usefully 
deployed in other ways.
    My response would be twofold. First, I believe that those 
considerations strongly counsel in favor of ensuring that the 
types of information that require a screening polygraph be that 
type of information that we deem the most vital. As I will note 
below, that has led me to recommend that we substantially lower 
the numbers of categories of information and hence the numbers 
of persons that would be subject to a polygraph screen.
    But that is not enough because the NAS report also notes 
``We believe that any agency that uses polygraphs as part of a 
screening process should, in light of the inherent fallibility 
of the polygraph, use the polygraph results only in conjunction 
with other information, and only as a trigger for further 
testing and investigation.''
    Therefore, I believe we should continue to use the 
polygraph as one tool to assist in making that determination, 
but that we not use it as the only tool. That in turn leads me 
to believe that we make clear not only as we do now in our 
current rule that we will not take any adverse personnel action 
solely based on the test results of polygraph exams, but that 
it is also our policy that no adverse decision on access to 
certain information or programs will be made solely on the 
basis of such test results.
    Let me now turn to the problem of false negatives where a 
polygraph indicates no deception but the individual is actually 
being deceptive. The NAS report quite correctly highlights this 
as a very real concern and as important if not more important 
than the concern of false positives, which generally generates 
most of the discussion.
    My review of this question persuades me that it is a 
certainty that any screening polygraph will produce a number of 
false negatives. These could, in theory, be significantly 
diminished by raising the sensitivity threshold of polygraph 
exams, but that almost certainly raises the numbers of false 
positives in a population like the Department's where virtually 
everyone is an honest patriot. Moreover, even this approach 
will not solve the problem, as we still may end up with a 
substantial number of false negatives.
    What we must keep in mind is that every clearance procedure 
has the problem of false negatives. It is just as dangerous to 
simply assume that a successfully completed background check 
means that we ``know'' that a person is loyal to the United 
States. In my view, the right way to think about this is 
defense in depth. One tool alone will not suffice, but many 
tools, among them the polygraph and other well-known tools, 
working together can reduce the risk to the greatest extent 
practical.
    Just to touch on some of my recommendations to the 
Secretary, I am recommending that the new program, like the 
current program, be driven by access needs and apply equally to 
Federal and contractor employees. We will make no distinctions 
between political appointees or career service professionals. 
My recommendation is to retain a mandatory polygraph screening 
program only for individuals with regular access to the most 
sensitive information. Overall, my recommendation is to narrow 
the range of information, access to which will trigger 
mandatory screening, and the result is the number of 
individuals affected would go from in excess of potentially 
20,000, as you said, Senator Bingaman, under the rule to 
approximately 4,500 under this new program.
    In my own thinking about the justifications for use of the 
counterintelligence scope polygraph, I have searched for a test 
to identify the types of information that on balance overcame 
the very real concerns about the validity of the polygraph 
screen. As it happens, we do have a well-understood test of how 
to define the damage disclosure of certain information would 
present: the current classification levels of confidential, 
secret, and top secret. There are additional categories that 
are also important, but it seems to me that the definition of 
top secret is a better way to capture the information most 
precious to us: ``information, the unauthorized disclosure of 
which reasonably could be expected to cause exceptionally grave 
damage to the national security.''
    Thus, I would propose including in the mandatory screening 
program those positions with routine or continuing access to 
all Department-originated top secret information, including top 
secret restricted data and top secret national security 
information.
    Let me now address an entirely new proposal of this program 
and it is the random screening program. We have identified a 
universe of positions whose level and frequency of access, 
while not requiring mandatory screening, nevertheless warrant 
some additional measure of deterrence against damaging 
disclosures.
    In reviewing the public policy dimensions of the polygraph, 
one is struck by the either/or aspect of the debate. Either you 
are subject to a polygraph or you are not. This struck me as 
too simplistic. The types of information we are concerned with 
do not easily fall into categories of either we deploy every 
tool we have or we do nothing. There is a continuum, and the 
problem of targeting in terms of counterintelligence is perhaps 
unique to DOE facilities and especially our three weapons labs 
in a way not present elsewhere in our national security 
complex. Nowhere else in America can someone in one location 
find not only our most sensitive nuclear weapons secrets but 
secrets addressing other weapons of mass destruction and 
special nuclear material.
    Thus, as a policy matter, I believe that unless there are 
very compelling countervailing considerations, we should pursue 
even modest additions to the arsenal of tools we deploy to 
deter dissemination of this information to our enemies, given 
the potentially grave consequences of failure.
    Finally, the Department is strongly committed to maximizing 
protections against potential errors and adverse consequences 
and safeguarding the privacy of the employees. Therefore, I 
will recommend that the new proposed rule retain and enhance 
the protections already contained in the current regulation.
    Limiting the population of those subject to mandatory 
screening polygraphs, as I recommend, will also be an important 
step. But I think we also have to make clear that it is our 
policy not to base a denial of access, not just an adverse 
personnel action, solely on the results of a polygraph exam.
    I am also recommending that the new regulation improve the 
process for making decisions to grant, continue, or deny access 
by providing for a new counterintelligence evaluation review 
board that may be convened to consider the results of exams 
that are not dispositive.
    I also recommend that it be our policy that the appropriate 
weapons laboratory director be consulted when the access 
determination involves a laboratory employee. I believe we need 
to place a premium on thorough but speedy decision making on 
these issues which I believe is in the best interest of both 
the employee and the Department.
    Mr. Chairman, in the interest of time, I will conclude my 
statement at this point, and I would be happy to respond to any 
questions.
    [The prepared statement of Mr. McSlarrow follows:]

 Prepared Statement of Kyle E. McSlarrow, Deputy Secretary of Energy, 
                          Department of Energy

    Thank you for giving me the opportunity to appear before you today 
to discuss the Department of Energy's current efforts and intentions 
regarding a new polygraph examination policy. This testimony is 
specific to the DOE polygraph program as it is administered by the DOE. 
The DOE utilizes a format that differs from the format used by some 
other Federal agencies. My statements today should therefore not be 
construed as offering any opinion on any other polygraph program in the 
Federal government.

                            I. INTRODUCTION

    Let me start by providing some historical perspective on this 
matter. Both the Executive and Legislative branches of our government 
have long recognized that the Department's national weapons 
laboratories are among the world's premier scientific research and 
development institutions. They are essential to our continued national 
security. They played a vital role in our victory in the Cold War, and 
they have continued to play a vital role in protecting the United 
States to this day. For that very reason, because they are the 
repository of America's most advanced know-how in nuclear and related 
weapons and the home of some of America's finest scientific minds and 
engineering capabilities, they also have been and will continue to be 
major targets of foreign intelligence services and other enemies of the 
United States. That has been true since they were created and it is 
equally true today.
    In particular, the attractiveness of DOE's laboratories as an 
intelligence target has not abated as a result of the end of the Cold 
War. Rather, as this Committee is well aware, the number of nations 
possessing, developing, or seeking weapons of mass destruction 
continues to grow, as does the threat presented to American interests 
by rogue nations and terrorist groups seeking access to these 
materials.
    As a result, throughout our history, the Department of Energy, like 
its predecessor the Atomic Energy Commission, has had to balance two 
sets of considerations. On the one hand, we must attract the best minds 
that we can to do this cutting edge scientific work, and we must allow 
sufficient dissemination of that work to allow it to be put to the 
various uses that our national security demands. On the other hand, we 
must take all reasonable steps to prevent our enemies from gaining 
access to the work we are doing, lest that work end up being used to 
the detriment rather than the advancement of our national security. 
There are no easy answers to the dilemma of how best to reconcile these 
competing considerations.
    The question of whether and to what extent the Department of Energy 
should use the polygraph as a tool for screening individuals for access 
to our most sensitive information is the latest manifestation of this 
perennial struggle. This particular chapter begins in 1988, when 
Congress enacted the Employee Polygraph Protection Act of 1988. That 
legislation generally restricted employers from using polygraphs to 
screen potential employees. Congress, however, included three 
exceptions that are relevant to the matter before you today. First, 
Congress decided that it would not apply any of the legislation's 
prohibitions to the United States or other governmental employers with 
respect to their own employees. Second, Congress specifically allowed 
the Federal government to administer polygraphs to Department of 
Defense contractors and contractor employees, and Department of Energy 
contractors and contractor employees in connection with the 
Department's atomic energy defense activities. And finally, Congress 
specifically provided that the Federal Government could administer 
polygraphs to contractors and contractor employees of the intelligence 
agencies and any other contractor or contractor employee whose duties 
involve access to top secret information or information that has been 
designated as within a special access program.
    In February 1998, President Clinton issued Presidential Decision 
Directive-61. In that directive, entitled U.S. Department of Energy 
Counterintelligence Program, the Department was ordered to enhance its 
protections against the loss or compromise of highly sensitive 
information associated with certain defense-related programs by 
considering a variety of improvements to its counterintelligence 
program. One of these was the use of polygraph examinations to screen 
individuals with access to this information.
    In order to carry out this directive, after initially proceeding 
through an internal order governing only federal employees, on August 
18, 1999, the Department of Energy proposed a rule, entitled 
``Polygraph Examination Regulation,'' that would govern the use of the 
polygraph as a screening tool. It proposed that all employees at DOE 
facilities, contractor employees as well as Federal employees, with 
access to certain classified information and materials, as well as 
applicants for such positions, be subject to a counterintelligence 
polygraph before they received initial access to the information and 
materials and at five-year intervals thereafter. In the National 
Defense Authorization Act for FY2000, Congress endorsed the approach by 
directing that the Department administer a counterintelligence 
polygraph to all Department employees, consultants, and contractor 
employees in ``high risk programs'' prior to their being given access 
to the program. Congress specified that these programs were the 
``Special Access Programs'' and ``Personnel Security and Assurance 
Programs.'' On January 18, 2000, the Department finalized essentially 
the rule it had proposed, which included individuals with access to 
these programs and others in the screening requirement. Thereafter, on 
October 30, 2000, Congress enacted the National Defense Authorization 
Act of FY 2001, which added DOE employees, consultants, and contractor 
employees in programs that use ``Sensitive Compartmented Information'' 
and all others already covered by the Department's prior rule to those 
to whom the polygraph screening mandate applied.
    More recently, in the National Defense Authorization Act for FY2002 
(PL 107-107), enacted on December 28, 2001, Congress required the 
Secretary of Energy to carry out, under regulations, a new 
counterintelligence polygraph program for the Department. Congress 
directed that the purpose of the new program should be to minimize the 
potential for release or disclosure of classified data, materials, or 
information. Congress further directed that the Secretary, in 
prescribing the regulation for the new program, take into account the 
results of a not-yet-concluded study being done by the National Academy 
of Sciences. That study was being conducted pursuant to a contract DOE 
had entered into with the National Academy of Sciences in November 
2000, in which the Department requested the Academy to conduct a review 
of the existing research on the validity and reliability of polygraph 
examinations, particularly as used for personnel security screening. 
Congress directed the Department to propose a new rule regarding 
polygraphs no later than six months after publication of the NAS study. 
Finally, Congress provided that the requirements it had imposed in the 
two earlier Defense Authorization Acts regarding the DOE 
Counterintelligence Polygraph Program would be repealed upon 
certification by the Secretary to the Congressional Defense Committees 
that DOE has promulgated and fully implemented a new polygraph rule. We 
understand this to mean that the Department is not constrained by those 
requirements in developing the rule it may elect to promulgate.
    The NAS study, entitled The Polygraph and Lie Detection, was 
published in October 2002 (hereinafter referred to as ``NAS Report'' or 
``NAS Study''). The Department published a Notice of Proposed 
Rulemaking on April 14, 2003. In that Notice, the Department indicated 
its then-current intent to continue the current polygraph program under 
a new rule. As the Secretary of Energy said upon release of that 
proposed rule, he ``concluded that it was appropriate at the present 
time to'' retain the current system ``in light of the current national 
security environment, the ongoing military operations in Iraq, and the 
war on Terrorism.'' At the same time, the Secretary recognized that in 
the longer term some changes might be appropriate. Therefore, the 
Department explicitly asked for public comment during a period which 
ended on June 13, 2003. The Secretary also personally wrote all 
laboratory directors inviting their comments and views on the proposed 
rule.
    The Secretary then directed me to conduct a review of the current 
policy and its implementation history to date, the NAS Report, and the 
public and internal comments resulting from the Notice of Proposed 
Rulemaking, and to make recommendations based on my review. I have 
worked closely with the Administrator of the National Nuclear Security 
Administration and the three directors of the nuclear weapons labs. I 
have discussed these issues with counterintelligence professionals, 
polygraph experts, and, as part of that review, I have also had access 
to classified summaries prepared by other Federal agencies regarding 
their use of polygraph as a screening tool for highly sensitive 
national security positions.

                     II. BASIS FOR RECOMMENDATIONS

    I have recently completed that review process. Let me say up front 
that this is one of the most difficult public policy issues I have had 
to confront. There is something almost talismanic about polygraphs. I 
can personally attest to this, since both the Secretary and I took a 
polygraph exam early in our tenure at the Department. I will discuss 
specific NAS recommendations throughout my testimony, but the NAS 
report makes very clear how little we actually know in a scientific 
sense about the theory and practice of polygraphs, either in support of 
or against the use of polygraphs in a variety of contexts. I found many 
of the NAS's concerns about the ``validity'' of polygraph testing to be 
well taken. I have personally discussed this issue with many employees, 
some of whom feel quite strongly that the polygraph is a dangerous tool 
that either has or will deprive us of the kind of talent that is needed 
to support our important national security programs. And, yet, as a 
policy maker, I have concluded that the utility of polygraphs is strong 
enough to merit their use in certain situations, for certain classes of 
individuals, and with certain protections that minimize legitimate 
concerns expressed by the NAS, employees of the Department, and other 
observers.
    I am therefore recommending to the Secretary that we propose 
substantial changes to how we use the polygraph in the context of the 
Department's counterintelligence program. In doing so, I carefully 
weighed considerations of fairness to employees with national security 
objectives. I weighed the critical need to protect important classes of 
national security information against the reality that such 
information's value is realized in some situations only when shared 
among talented individuals, without which our national security would 
suffer. I weighed the possibility that individuals who might otherwise 
be critically important to our national security might not be able to 
contribute to our security if they choose another type of employment 
because they object to taking a polygraph exam. I weighed the 
possibility that a polygraph exam that is sensitive enough to raise the 
likelihood of ``catching'' someone who means to do harm to the United 
States is also sensitive enough to raise the risk that many 
``innocent'' employees will have their lives and employment disrupted 
by an examination that is either inconclusive or wrongly indicates 
deception. Throughout, I was guided by the NAS Report, a study of 
considerable rigor and integrity both in the sense of what it tells us 
about what we know and don't know about scientific evidence relating to 
the polygraph, and in its willingness to make clear the limitations 
under which the study was conducted.
    Because I have recommended that we propose substantial changes that 
encompass the classes of individuals who would be subject to a 
counterintelligence scope polygraph exam and the procedures that apply 
to the use of polygraphs, if the Secretary accepts my recommendation we 
will also publish a new proposed rule. Such a proposal will entail 
significant consultation within the executive branch. I would 
anticipate such a proposed rule would be published by the end of this 
year. In addition to public comment, I would expect the Department to 
hold a public hearing before finalizing the rule.
    I would like now to summarize the changes that I am recommending to 
the current polygraph program. As I do so, I will identify the 
considerations I concluded were most important taking into account the 
NAS report.
    Perhaps the most difficult issue involves the use of a polygraph as 
a screening tool, either as a pre-employment test, or as is the case 
with the Department's program, as a tool for determining access to 
certain types of information, programs, or materials. The NAS report 
points out that the generic nature of the questions asked in the 
traditional counterintelligence scope exam poses concerns for validity, 
concerns that are present to a lesser degree when a polygraph exam is 
focused on a specific set of facts or circumstances. Thus, the NAS 
report stated, ``we conclude that in populations of examinees such as 
those represented in the polygraph research literature, untrained in 
countermeasures, specific-incident polygraph tests can discriminate 
lying from truth telling at rates well above chance, though well below 
perfection.'' By contrast, ``polygraph accuracy for screening purposes 
is almost certainly lower than what can be achieved by specific-
incident polygraph tests in the field.''
    Adding to the difficulty for public policy makers is the NAS' 
conclusion that ``virtually all the available scientific evidence on 
polygraph test validity comes from studies of specific-event 
investigations'' rather than studies of polygraphs used as a screening 
tool, and the ``general quality of the evidence for judging polygraph 
validity is relatively low.''
    However, several agencies within the U.S. intelligence community 
have utilized the counterintelligence scope polygraph for many years as 
part of both their hiring process and periodic security evaluations of 
on-board personnel. Those examinations have produced positive results.
    Federal agencies deploying the counterintelligence scope polygraph 
as a screening tool for initial hiring or initial access have detected 
applicants for classified positions within those agencies who were 
directed by foreign governments or entities to seek employment with the 
agencies in order to gain successful penetrations within the various 
U.S. Government components.
    U.S. agencies have also benefited from the utilization of the 
polygraph screen as part of periodic security evaluations and re-
investigations of federal employees and contractor personnel. Such 
examinations have resulted in multiple admissions in several different 
areas:

   Knowingly providing classified information to members of foreign 
        intelligence services.
   Involvement in various stages of recruitment efforts by foreign 
        intelligence services.
   Prior unreported contacts with known foreign intelligence officers.
   Efforts by employees to make clandestine contact with foreign 
        diplomatic establishments or foreign intelligence officers.
   Serious contemplation or plans to commit acts of espionage.
   Knowingly providing classified information to foreign nationals and 
        uncleared U.S. persons.

    As a result of admissions and subsequent investigations, federal 
agencies have disrupted on-going clandestine relationships between 
employees/contractors and foreign intelligence officers, and stopped 
others in their beginning phases, or even before the clandestine 
relationships began.
    If this were the end of the inquiry, it would be a relatively 
straightforward matter. The probability would be that use of the 
polygraph screen as one tool for counterintelligence would have a value 
that demanded its use in the context of access to information the 
protection of which is critical to our national security, even taking 
into account questions of employee morale and the resources necessary 
to sustain such a program. The value of its use in specific-incident 
investigations would be presumably greater still.
    However, that cannot be the end of the inquiry. As the NAS Report 
makes clear, there are two fundamental issues that must still be 
confronted: problems associated with examination results that produce 
``false positives'' (i.e., where an ``innocent'' person's exam is 
either inconclusive, or wrongly indicates deception or a significant 
response meriting further investigation); or ``false negatives'' (i.e., 
where a ``guilty'' person is judged to have ``passed'' an exam such 
that no follow up investigation is required).
    ``False positives'' pose a serious dilemma. They clearly affect the 
morale of those for whom such a result is reached, and at a certain 
number can plausibly be expected to affect the morale of a sizeable 
portion of the workforce. They risk interrupting the careers of 
valuable contributors to our nation's defense, if only to fully 
investigate and clear someone who has not ``passed'' a polygraph. Both 
ways, therefore, they pose a very serious risk of depriving the United 
States of the vital services of individuals who may not be easily 
replaced. They also risk wasting valuable resources, particularly 
valuable security and counterintelligence resources that could more 
usefully be deployed in other ways. For all these reasons, therefore, 
false positives are a serious issue not only as a matter of individual 
justice but as a matter of the security of the United States.
    What this means, in turn, is that the ratio of ``true positives'' 
to ``false positives'' is a very important consideration in evaluating 
the polygraph's utility as a screening tool. Unfortunately, we do not 
really know what that ratio actually is. It largely depends on the 
accuracy of the polygraph used in this way, as to which, as the NAS 
Study explains, for the reasons noted above, we do not have enough hard 
information to make anything more than an educated guess.\1\
---------------------------------------------------------------------------
    \1\ The NAS report details a number of concerns in addition to 
those identified in the text. The most serious of these is 
countermeasures, an issue that is recognized by all agencies who use 
polygraphs. We must establish a policy that does not rely on the 
results of a polygraph alone to provide comfort that anyone tested has 
been ``cleared.'' Other tools must always be used in conjunction with a 
polygraph. In addition, of course, we need to work to recognize and 
defeat countermeasures. Finally, the possibility of countermeasures 
does not diminish the utility of polygraphs for deterrence, 
particularly among those not trained in countermeasures, but even among 
those who may be, since no one can have complete confidence that a 
countermeasure will succeed.
---------------------------------------------------------------------------
    Nonetheless, the NAS's conclusion on this point is stark: 
``Polygraph testing yields an unacceptable choice. . . . Its accuracy 
in distinguishing actual or potential security violators from innocent 
test takers is insufficient to justify reliance on its use in employee 
security screening in federal agencies.''
    The NAS analysis underlying this conclusion is very complex and 
varies somewhat depending on the ``sensitivity threshold'' at which the 
polygraph is set. I will not detail it fully here. However, the bottom 
line is that I found these concerns to be compelling, requiring a 
satisfactory response in order to continue the use of the polygraph as 
a counterintelligence tool for screening decisions.
    The core of my response is twofold. First, I believe that 
considerations brought out by the NAS Study strongly counsel in favor 
of ensuring that the types of information that require a screening 
polygraph in order to obtain access to them are the most critical to 
our national security, so that we are only incurring the costs that the 
screening polygraph will inevitably entail in order to protect our most 
vital information. As I will note below, that has led me to recommend 
that we substantially lower the numbers of categories of information 
and hence the numbers of persons that would be subject to a polygraph 
screen.
    Even in such cases, however, I still believe the costs of allowing 
bottom-line decisions to be made based solely on a ``positive'' that 
stands a substantial chance of being a ``false positive'' are 
unacceptably high. We cannot afford them because they risk undermining 
the very national security goals we hope to attain. That brings me to 
the second element of my response.
    The NAS paragraph quoted above actually only goes to the use of the 
polygraph results as the sole basis for decision-making. It does not 
address the polygraph's use as an investigative lead, to be used in 
conjunction with other traditional investigative tools. So used, the 
polygraph seems to me to be far less problematic because we should be 
able to use these other tools to distinguish the false positives from 
the true positives. The NAS Report acknowledges that this approach can 
ameliorate the problems it identifies, noting that ``We believe that 
any agency that uses polygraphs as part of a screening process should, 
in light of the inherent fallibility of the polygraph instrument, use 
the polygraph results only in conjunction with other information, and 
only as a trigger for further testing and investigation.''
    To put the point most simply: I know of no kind of investigative 
lead that is perfect. Most will identify a substantial number of 
instances of misconduct or ``false positives'' that do not check out. 
Let us take anonymous tips, which are the bread and butter of 
investigations. If an anonymous tipster reports wrongdoing on someone's 
part that indicates danger to the national security, the report may be 
true. But it is also possible that the tipster misunderstood something 
and leapt to an unwarranted conclusion. And it is also possible that 
the tipster made up or distorted the report in order to slander the 
subject out of malice, envy, or on account of some other grievance or 
motivation. Anonymity provides a cloak to the tipster that may result 
in the government's obtaining some true information it otherwise might 
not get, but it also lowers the costs to the tipster of lying.
    Nevertheless, we do not rule out the use of anonymous tips to 
screen individuals for access to information, or for all kinds of other 
purposes. Rather, we accept them, but we investigate them. What we do 
not do, however, is assume they are true and treat them as the sole 
basis for decision-making.
    Similarly, techniques in addition to the polygraph are utilized by 
U.S. Government agencies, including DOE, to determine whether to grant 
security clearances and determine access to classified information. 
Those techniques include, among others, national agency checks; credit 
and criminal checks; and interviews of neighbors, co-workers and 
others. Any of those techniques, standing alone, could produce 
inaccurate information which, taken on its face without further 
verification, could lead to adverse consequences to the prospective or 
current employee. While no individual technique is perfect and without 
some potential for error, no one to my knowledge has suggested that we 
should abandon their use, or that we hire people and entrust them with 
national defense information with no prior checks or reviews 
whatsoever.
    It seems to me that it is not unreasonable to place the same kind 
of limited credence in a polygraph result that we place in many other 
kinds of information that we receive in the course of evaluating 
whether an individual should be given access to extremely sensitive 
information. Therefore, I believe we should continue to use the 
polygraph as one tool to assist in making that determination, but that 
we not use it as the only tool. That, in turn, leads me to believe that 
we make clear not only, as we do now in our current rule, that we will 
not take any ``adverse personnel action'' solely based on the test 
results of polygraph examinations, but that it is also our policy that 
no adverse decision on ``access'' to certain information or programs 
will be made solely on the basis of such test results.
    The bottom line is that we intend that a polygraph screen serve 
what we have previously said it would: that is, a ``trigger'' that may 
often be useful for subsequent investigation, but standing alone 
treated as having no conclusive evidentiary value. In every case of an 
adverse personnel action, it would be our policy that such an action or 
decision would be based on other information as well.
    Let me now turn to the problem of ``false negatives,'' where a 
polygraph indicates ``no deception'' but the individual is actually 
being deceptive. The NAS report quite correctly highlights this as also 
a very real concern. My review of this question persuades me that it is 
a certainty that any screening polygraph will produce a number of false 
negatives. These could in theory be significantly diminished by raising 
the sensitivity threshold of polygraph exams, but that almost certainly 
raises the numbers of false positives in a population like the 
Department's where virtually everyone is an honest patriot. Moreover, 
even this approach will not solve the problem, as we may still end up 
with a substantial number of false negatives.
    What we must keep in mind is that every ``clearance'' procedure has 
the problem of ``false negatives.'' It is just as dangerous to simply 
assume that a successfully completed background check means that we 
``know'' the person is loyal to the United States. All that we ``know'' 
is that we have not found any evidence of disloyalty. The same should 
hold for thinking about what it means to ``pass'' a polygraph exam. We 
actually don't ``know'' that the person is not being deceptive. We 
simply have not found anything indicating that he or she is. The real 
life public policy challenge is that we have to make a judgment about 
how far we go, how many resources we expend, in the search for 
perfection when it comes to counterintelligence. Quite obviously, 
considering the many tens of thousands of Americans who have access to 
information or programs the protection of which is absolutely critical, 
we are forced to make a probabilistic judgment on how far is enough.
    The right way to think about this is ``defense in depth.'' One tool 
alone will not suffice. But many tools, among them the polygraph and 
other well-known tools, working together can reduce the risk to the 
greatest extent practical.
    Thus, in making my recommendations, I intend to give greater 
scrutiny to those concerns the NAS Report identified. In particular, as 
a result of the NAS Report, I have already directed a review of our 
current practice under the Accelerated Access Authorization Program, 
where interim clearances are granted for some personnel, based in part 
on whether they ``pass'' a polygraph exam, even before the completion 
of a background check (Other requirements for interim clearance under 
this program include completion of Questionnaire for National Security 
Positions, a National Agency Check with Credit, psychological screening 
and drug testing). I also believe it is critical that everyone at DOE 
involved in access determinations--Counterintelligence, Security, and 
Program personnel--truly internalize the NAS's points on both ``false 
positives'' and ``false negatives'' and build them into the culture of 
their organizations, particularly the people charged with making access 
recommendations or decisions.

                  III. OVERVIEW OF RECOMMENDED CHANGES

    I am recommending that the new program, like the current program, 
be driven by access needs and apply equally to Federal and contractor 
employees. We will make no distinctions between political appointees or 
career service professionals. The function or information to which 
access is sought will be determinative.
    My recommendation is to retain a mandatory polygraph screening 
program only for individuals with regular access to the most sensitive 
information. I recommend that the proposed rule, like the current 
regulation, provide for a mandatory counterintelligence scope polygraph 
examination prior to initial access being granted, as well as periodic 
polygraph examinations at intervals not to exceed five years.
    Overall, my recommendation is to narrow the range of information, 
access to which will trigger mandatory screening as compared to the 
potential scope of the program under the current rule. The approach I 
am recommending would have the effect of reducing the number of 
individuals affected from well in excess of potentially 20,000 under 
the current rule to approximately 4,500 under this new program.
    I will recommend that some elements of the mandatory screening 
population remain essentially the same as under the current regulation. 
For example: all counterintelligence positions; all positions in the 
Headquarters Office of Intelligence and at the Field Intelligence 
Elements; and all positions in DOE Special Access Programs (and non-DOE 
Special Access Programs if a requirement of the program sponsor) will 
be included in the mandatory screening program. These positions would 
continue to be subject to mandatory screening because they involve 
routine access to highly sensitive information, such as foreign 
intelligence information and other extremely close-hold and 
compartmented information.
    In my own thinking about the justifications for use of the 
counterintelligence scope polygraph, I have searched for a test to 
identify the types of information that on balance overcame the very 
real concerns about the validity of the polygraph screen. Most would 
agree that the polygraph should be reserved for only those programs or 
information, the protection of which is the most critical. As it 
happens, we have a well understood test of how to define the damage 
disclosure of certain information would present: the current 
classification levels of Confidential, Secret, and Top Secret. There 
are additional categories that are also important, but it seems to me 
that the definition of Top Secret is a better way to capture the 
information most precious to us: ``information, the unauthorized 
disclosure of which reasonably could be expected to cause exceptionally 
grave damage to the national security''.
    Another consideration is that even equally critical information may 
be targeted differently. In some cases, such information may reside in 
seemingly innocuous offices anywhere in the country. In the case of the 
Department, no such possibility exists. All of our facilities, and 
certainly the three weapons labs, are well known to involve the most 
sensitive secrets our country possesses, not simply about nuclear 
weapons, but about countless other programs. Therefore, there can be no 
question that these facilities will be targeted by those who wish to do 
us harm.
    Thus, we would propose including in the mandatory screening program 
those positions with routine or continuing access to all DOE-originated 
Top Secret information, including Top Secret Restricted Data and Top 
Secret National Security Information. Top Secret Restricted Data is a 
clearly distinguishable criterion that identifies the weapons 
community's most sensitive information assets. Other non-weapons-
related Top Secret information, categorized as Top Secret National 
Security Information, although not dealing with nuclear weapons, 
includes our most sensitive national security information.\2\
---------------------------------------------------------------------------
    \2\ Access to non-DOE-originated information, including non-DOE 
SAPS, SCI, and Top Secret information, would be governed by the rules 
of the originating agency.
---------------------------------------------------------------------------
    Let me make clear that this category will not include everyone with 
a ``Q'' or a Top Secret clearance, nor will it include all weapons 
scientists; it will include only those whose positions require 
continuing, routine access to Top Secret RD or other DOE-originated Top 
Secret information. This is a fairly small population, probably less 
than one thousand people complex-wide.
    I am also making a separate recommendation regarding certain DOE-
originated information. We possess certain nuclear weapons information 
referred to as ``Sigma'' information classified at a level below Top 
Secret that deals with various sensitive aspects of the nuclear weapons 
program to which we formally restrict access, including vulnerability 
information (Sigma 14), use control information (Sigma 15), and other 
design information (Sigmas 1 and 2). This information would be 
particularly attractive to terrorist organizations because it could 
facilitate the deliberate unauthorized use (nuclear detonation) of a 
nuclear weapon or the construction of an Improvised Nuclear Device. I 
am recommending to the Secretary that he direct a review to determine 
whether, as a result of our understanding of current threats and other 
factors, some or all of this ``Sigma'' information should be 
reclassified at the Top Secret level or protected under a Special 
Access Program. The conclusions of this review could result in 
additional positions in this category.
    I will also recommend to the Secretary that the new proposed rule 
include authority for certain managers, with input from the Office of 
Counterintelligence and subject to the approval of either the Secretary 
or the Administrator of the National Nuclear Security Administration, 
to include additional individuals within their offices or programs in 
the mandatory screening program. These individuals will be limited to 
those with regular access to information or other materials presenting 
the highest risk. This authority would allow designation of individuals 
within the Office of the Secretary, the National Nuclear Security 
Administration, the Office of Security, the Office of Emergency 
Operations, the Office of Independent Oversight and Performance 
Assurance, the Personnel Assurance Program, and the Personnel Security 
Assurance Program.
    I intend to recommend that we no longer designate for mandatory 
polygraph screening all individuals in the Personnel Assurance Program 
and the Personnel Security Assurance Program (which, as an aside, we 
are in the process of combining into a single Human Reliability Program 
with uniform clearance requirements). The FY 2000 NDAA originally 
mandated that everyone in these programs be subject to a screening 
polygraph, and the FY 2001 NDAA retained that mandate. Accordingly, the 
current regulation likewise mandates that they all be screened.
    The FY 2002 NDAA, however, directs that the focus of DOE's 
polygraph program be the protection of classified data, materials or 
information. The PAP and PSAP programs apply to individuals not by 
reason of their access to classified information but on account of 
their responsibilities for nuclear materials. Many, if not most, of the 
individuals in positions associated with these programs do not have 
routine access to the most sensitive classified information, leading me 
to recommend against their wholesale inclusion in the mandatory 
screening program.
    Before I leave the mandatory screening program, let me mention that 
if a revised rule is proposed and promulgated, I believe it is 
important that we proceed with full implementation of that rule 
expeditiously so that the Secretary is in a position to make the 
certification required by the FY 2002 NDAA regarding implementation of 
the new program. I would envision, as one element of the new program, 
we would allow incumbents in positions designated for mandatory 
screening under the new regulation to retain access to their programs 
pending scheduling of their first polygraph examination.
    Let me now address an entirely new proposed element of the overall 
program the random screening program. We have identified a universe of 
positions whose level and frequency of access, while not requiring 
mandatory screening, nevertheless warrants some additional measure of 
deterrence against damaging disclosures.
    In reviewing the public policy dimensions of the polygraph, one is 
struck by the ``either-or'' aspect of the debate: either you are 
subject to a polygraph, or you are not. This strikes me as too 
simplistic. The types of information we are concerned with don't easily 
fall into categories where either we fully deploy every tool we have to 
defend against disclosure or we do nothing. The classification regime 
itself acknowledges that there is a continuum, and that these 
determinations are based on less science and more judgment than is 
often admitted. Nonetheless, the problem of targeting that I identified 
above is perhaps unique to DOE facilities, and especially our three 
weapons labs, in a way not present elsewhere in our national security 
complex. Nowhere else in America can someone--in one location--find not 
only our most sensitive nuclear weapons secrets, but secrets addressing 
other weapons of mass destruction, and special nuclear material.
    There are many ways to deter and detect such targeting, and the 
security and counterintelligence functions at the Department command 
the full attention of the Department's leadership, substantial 
resources, large and highly trained protective forces, and security and 
access controls that are too numerous to list here. Nonetheless, we 
will do everything we can to strengthen our ability to detect and deter 
activities inimical to our interests. Thus, as a policy matter, I 
believe that unless there are very compelling countervailing 
considerations, we should pursue even modest additions to the arsenal 
of tools we deploy to deter dissemination of this information to our 
enemies given the potentially grave consequences of failure.
    It is noteworthy that the NAS report, while questioning the 
validity of polygraph screens and their value in ``detection,'' also 
stated that ``polygraph screening may be useful for achieving such 
objectives as deterring security violations, increasing the frequency 
of admissions of such violations, [and] deterring employment 
applications from potentially poor security risks.''
    As the NAS report notes, ``the value, or utility, of polygraph 
testing does not lie only in its validity for detecting deception. It 
may have a deterrent value. . . .'' And, as the NAS report also notes, 
``predictable polygraph testing (e.g., fixed-interval testing of people 
in specific job classifications) probably has less deterrent value than 
random testing.''
    This leads me to conclude that it is appropriate in some instances 
to include some form of screening beyond that routinely required to 
obtain and maintain access to specific programs or positions that makes 
some use of the deterrent value of the polygraph. The random screening 
program is intended to meet this need and to supplement the mandatory 
screening program. Under the random screening portion of the program, 
polygraph examinations would not be a condition of initial entry nor 
would individuals with access to the information at issue be subject to 
mandatory polygraphs at specific intervals. However, they would be 
subject to random selection for polygraph examinations at any time, at 
any frequency. In essence, even though it is possible that an 
individual in such a position may never actually be selected through 
the random process, the individual could be subject to a (random) 
polygraph at any time, even if the individual recently completed one.
    While the overall goal is one of deterrence, an associated benefit 
is that the random program serves to reduce the number of individuals 
in the mandatory program, allowing us to focus our resources more 
wisely. Thus, it will be our policy to fashion a random polygraph 
program that achieves the objectives of deterrence with the minimum 
reasonable percentage or number of individuals in those positions to 
which it applies. Since we estimate the total number of individuals who 
would be eligible for the random polygraph program to be about 6000, 
the use of a minimum percentage means the total number of random 
polygraphs in any given year would be a much lower number.
    The following positions would be included in the random screening 
program: all positions in the offices of Security, Emergency 
Operations, and Independent Oversight and Performance Assurance that 
are not designated for the mandatory screening program; positions with 
routine access to Sigma 14 and 15 weapons data; and system 
administrators for classified cyber systems. Again, the population 
associated with routine access to Sigma 14 and 15 weapons information 
will not encompass the entire population of ``Q'' cleared individuals, 
but only those with regular access to Sigma 14 and 15 information.
    In addition, due to the interconnectedness of DOE sites and cyber 
networks and the volume of sensitive unclassified information, we are 
already taking steps to apply additional security controls (clearance 
requirements, segregation of duties, two-person rules, etc.) to system 
administrators of unclassified systems. We intend to evaluate the 
merits of including system administrators of unclassified cyber systems 
in the random program at a later date.
    In addition to the mandatory and random screening programs, I 
intend to recommend that we clarify in the regulation that the 
Department may also conduct ``specific-incident'' polygraph 
examinations in response to specific facts or circumstances with 
potential counterintelligence implications. That recommendation also 
grows out of the NAS Report, which noted that this kind of use of the 
polygraph is the one for which the existing scientific literature 
provides the strongest support. The rule will also retain provisions 
for voluntary polygraphs such as exculpatory polygraph examinations 
conducted in response to questions that have arisen in the context of 
counterintelligence investigations or personnel security issues.
    As I made clear in the discussion above, the Department is strongly 
committed to maximizing protections against potential errors and 
adverse consequences and safeguarding the privacy of the employees who 
are subject to polygraph examinations. Therefore I will recommend that 
the new proposed rule retain and enhance the protections already 
contained in the current regulation. The provisions we would retain 
include: written notification by the Department and written consent 
from the employee are required before a polygraph examination can be 
administered; DOE is prohibited from recording a refusal to submit to a 
polygraph examination in an employee's personnel file; audio and video 
recordings of polygraph examination sessions are made to protect both 
the employee and the polygrapher; all polygraph examination records and 
reports are maintained in a system of records established under the 
Privacy Act; and strict qualification standards and standards of 
conduct for polygraphers are established and enforced. Neither the 
polygrapher nor the Office of Counterintelligence has the authority to 
make a decision to grant or deny access. That decision is made by the 
Program Manager or the Secretary. The examination is limited to topics 
concerning the individual's involvement in espionage, sabotage, 
terrorism, unauthorized disclosure of classified information, 
unauthorized foreign contacts, and deliberate damage to or malicious 
misuse of a U.S. government information or defense system. The examiner 
may not ask questions that concern conduct that has no 
counterintelligence implication or concern conduct that has no direct 
relevance to an investigation, such as ``lifestyle'' questions.
    Perhaps the most important aspect of these safeguards is how we 
address the problem of ``false positives.'' Assuming we adhere to the 
difficult policy choice that the continued use of polygraphs as both a 
screening tool and for specific-incident investigations is appropriate, 
we believe that it is absolutely necessary to ensure that we minimize 
to the greatest extent possible any morale effects of the polygraph, 
and do everything we can to prevent ``false positives'' from producing 
an unfair result to an employee.
    Limiting the population of those subject to mandatory screening 
polygraphs as I recommend we do is the most important step I believe we 
can take to limit these kinds of problems. In addition, however, I 
believe we can make a few improvements to the current rule. First, I 
believe we should clarify that the sole purpose for which we use the 
polygraph as a screening tool is to assist us in making determinations 
about whether an individual may be given access to specific categories 
of highly sensitive information. Otherwise, we do not use it to make 
employment decisions at all, except to the extent that access to this 
information may be a critical element of someone's job. Therefore, 
somewhat curiously, the current prohibition on an ``adverse personnel 
action'' solely based on polygraph results prohibits a use of the 
polygraph not really contemplated by the rule in the first place.
    Accordingly, I recommend that we also make clear that it is our 
policy not to base a denial of access solely on the results of a 
polygraph exam. This would be consistent with the NAS report's 
recommendation: ``We believe that any agency that uses polygraphs as 
part of a screening process should, in light of the inherent 
fallibility of the polygraph instrument, use the polygraph results only 
in conjunction with other information, and only as a trigger for 
further testing and investigation.''
    I am also recommending that the new regulation improve the process 
for making decisions to grant, continue, or deny access to these high-
risk programs by providing for a counterintelligence evaluation review 
board that may be convened to consider the results of 
counterintelligence evaluations that are not dispositive. I also 
recommend that it be our policy that the appropriate weapons laboratory 
director be consulted when the access determination involves a 
laboratory employee. I also believe we need to place a premium on 
thorough but speedy decision-making on these issues, which I believe is 
in the best interest of both the employee and the Department.
    I am also recommending that we consider establishing a separate 
mechanism, within the Department but external to the Office of 
Counterintelligence, to evaluate any complaints lodged against 
polygraphers and identify and correct specific issues associated with 
the conduct, performance, or training of polygraphers.
    Finally, as I mentioned previously, I am recommending that we 
commit to review, not later than two years following the effective date 
of the regulation, the scope of the mandatory and random screening 
programs and the experience gained through the implementation of the 
regulation. The purpose of the review would be to consider whether any 
amendments to the regulation related to the process or to the covered 
population are appropriate.
    Because the policy choices discussed above lead to the conclusion 
that the polygraph should be just one tool of many, I am recommending 
that we make clear in the new regulation that polygraphs are just one 
element to be used in broader counterintelligence evaluations resulting 
from polygraph examinations or other information. The current rule 
refers to review of personnel security files and personal interviews as 
elements of such evaluations. I am also recommending that we consider 
broadening this reference to note that these evaluations may also, in 
appropriate circumstances and to the extent authorized by law, use 
other techniques, such as reviews of medical and psychological 
examinations, analyses of foreign travel and foreign contacts and 
connections, examination of financial and credit information, and net 
worth analyses. We intend to consult closely with others in the 
executive branch regarding this potential aspect of our proposal.
    In addition to a wider array of tools, better tools are needed to 
increase the reliability and validity of screening processes. The NAS 
report called for basic and applied scientific research into improved 
security screening techniques, and suggested that such an effort could 
be devoted in part to developing knowledge to put the polygraph 
technique on a firmer scientific foundation, which could strengthen its 
acceptance as a tool for detecting and deterring security threats. We 
have also identified a need for basic research into improved screening 
technologies, including but not limited to psychological and behavioral 
assessment techniques. It may be, as the NAS report suggests, that this 
research is best conducted under the auspices of an organization other 
than an agency that invests considerable resources in a 
counterintelligence polygraph program. In any event, we stand ready to 
lead or assist in such research.
    That concludes my prepared statement. I will be happy to respond to 
any questions you have regarding our intentions for the proposed 
regulation on counterintelligence evaluations.

       STATEMENT OF HON. PETE V. DOMENICI, U.S. SENATOR 
                        FROM NEW MEXICO

    The Chairman. Thank you very much, Mr. Secretary.
    Senator Bingaman, I am glad you opened the meeting, and I 
have brief remarks. They were much longer but now I understand 
what you have said and I received the statement last night. So 
until that time, I did not know that you had elected to 
substantially revise the earlier decision to continue large-
scale use of polygraphs. Their decision should substantially 
shorten the duration of this hearing, as I see it, and 
significantly change the direction of our questions.
    I want to congratulate the Deputy Secretary for his 
testimony on the revised DOE polygraph program and the Chairman 
of the National Academy panel that studied this issue. It is 
now clear that the Department is carefully considering the 
results of the academy review. The outstanding work of the 
panel was clearly instrumental in shaping the Department's new 
plan. The drastic reduction in the number subject to the 
routine screening is very positive. It is evident that careful 
thought went into selecting the population for such testing.
    Future evaluation of the revised DOE program is appropriate 
and may result in future program modifications. I am pleased 
that the Department plans such a study.
    I believe the laboratory personnel should be greatly 
relieved by the adjustments made in the Department's previous 
program, and I believe that a careful development of this new 
program will result in improved security of our precious 
national secrets.
    Our two witnesses today will help us understand the 
Department's current thinking, as well as the study completed 
by the Academy of Sciences. The written testimony of each 
witness is part of the record. I invite our witnesses to be 
brief in summarizing and, if they can, to talk more about what 
has been accomplished by the changes than about the past.
    I have no questions at this time. I yield back to you, 
Senator.
    [The prepared statement of Senator Domenici follows:]

       Prepared Statement of Hon. Pete V. Domenici, U.S. Senator 
                            From New Mexico

    This hearing provides an opportunity for the Committee to evaluate 
the recent decisions by the Department regarding use of polygraphs in 
their personnel security programs.
    The large-scale use of polygraphs for routine employee screening at 
the national laboratories raised extremely serious concerns among 
technical staff. While these employees recognize the importance of 
secure operations to protect our national secrets, they are strongly 
opposed to reliance on a test that, in their view, is of marginal 
scientific utility and seriously prone to error.
    I heard from many employees who questioned whether they wished to 
continue their contributions in national security programs at the labs 
if they were subjected to tests of questionable validity. That led me 
to craft legislation in 2001, together with Senator Bingaman, to 
require the Department to reassess their use of polygraphs after the 
National Academy released their study on the scientific validity of the 
polygraph.
    Until I received the Department's testimony late last night, I did 
not realize that the Department had elected to substantially revise 
their earlier decision to continue large scale use of polygraphs. Their 
decision should substantially Sheen the UUratIVl of tthis hearing and 
significantl ychange the direction of our questions.
    I want to congratulate both the Deputy Secretary for his testimony 
on a revised DOE polygraph program and the Chair of the National 
Academy Panel that studied this issue. It is now clear that the 
Department is carefully considering the results of the National Academy 
review. The outstanding work of the Acad-emy panel was clearly 
instrumental in shaping the Department's new plan.
    The drastic reduction in number of employees subject to routine 
screening is very positive. It is evident that careful thought went 
into selecting the population for such testing.
    Future evaluation of the revised DOE program is appropriate, and 
may result in future program modifications. I'm pleased that the 
Department plans such study.
    I believe that the Laboratory personnel should be greatly relieved 
by the adjustments made in the Department's previous program. And I 
believe that the careful development of this new program should result 
in improved security of our precious national security secrets.
    Our two witnesses today will help us understand the Department's 
current thinking as well as the study completed by the National Academy 
of Sciences. The written testimony of each witness is a part of the 
record and I invite our witnesses to briefly summarize key points in 
their testimony.
    Our first witness is Deputy Secretary of Energy, Mr. Kyle 
McSlarrow.
    Our second witness, in the second panel, is Dr. Stephen Fienberg, 
chairman of the National Academy's National Research Council study on 
the accuracy of polygraphs.

    Senator Bingaman. Thank you very much.
    Let me also commend you and the Department for taking the 
academy's study seriously at this point. That is how I 
interpret your testimony. Frankly, I was not persuaded, when 
the earlier rulemaking came out, that there had been a serious 
effort in the Department to review what the academy had come up 
with and concluded. I appreciate the fact that you have decided 
to reduce the number of individuals who would be subject to 
polygraph exams because of what you interpret out of the 
National Academy study.
    I still have a problem, and let me just state it very 
generally, and then I will ask you a couple of questions. It 
strikes me that what the academy determined was that use of the 
polygraph exam as a screening tool was unreliable and that 
therefore they did not recommend doing so. What you are now 
concluding is that because of the academy's study, the 
Department is going to continue to use it as a screening tool 
but not as much. That seems to me to be better than where we 
were, but it certainly is not where the logic would lead us.
    This table that is in the National Academy study, table S-
1, seemed to me, fairly important in its conclusions. As I read 
that table, it said that out of a population of 10,000, there 
would be about 1,600 who would give false positive results or, 
if given a polygraph test, would be shown to be lying 
essentially or misleading, but it would be a false indication. 
They also indicated that if there were 10 spies in that group 
of 10,000, 2 of those would go undetected.
    By reducing the number of people who take the test, we are 
now saying that, say, 4,500 would be subject to the test; plus, 
a certain percentage of this pool of 6,000 would be randomly 
tested. So we would perhaps see 5,000 individuals that would be 
tested each 5 years. That is just an estimate that seemed to me 
to be consistent with what you are saying.
    So under the academy's table, 5,000 is half of 10,000. 
Therefore, you would have 800 false positives instead of 1,600. 
That still seems to me a large number of scientists or others 
in our employ or in the employ of these contractors who would 
be placed under suspicion, inappropriately placed under 
suspicion. And I would be interested in your thoughts as to why 
that can be justified in light of what the academy has found?
    Mr. McSlarrow. I do not have the table in front of me, but 
I have stared at it so many times I think it is imprinted on my 
mind at this point.
    [Laughter.]
    Mr. McSlarrow. To go back to the point the chairman made, 
the NAS study--I do not need it. Actually I am fine. Thanks. I 
really meant it. It is imprinted on my mind.
    [Laughter.]
    Mr. McSlarrow. The NAS study moved me. I was in a different 
place as a matter of personal opinion than I am today. So it 
moved me probably not as far as the NAS would want me to go, 
but it did clearly have an affect on my thinking and I think 
the thinking of the Secretary.
    To go to the point, you are quite correct. If all we were 
doing was reducing the number, we would just reduce the 
problem. We would not have eliminated the problem of false 
positives. And that is why I think it is important to think of 
this as a two-pronged approach. Regardless of what the numbers 
are, if the only result of a false positive--not that this is 
unimportant--is to take time and resources of the Department in 
order to see in a further investigation whether or not there is 
anything to the false positive, and ultimately a polygraph 
result, a positive one, does not result in any adverse decision 
to the employee, then I would argue you have taken care of the 
false positive problem. You have not addressed, of course, the 
false negative, which is an entirely different set of problems.
    Senator Bingaman. And you have not addressed the morale 
problem.
    Mr. McSlarrow. You have not addressed morale problems. But 
I think the first thing it is going to take is some leadership 
by the Department. I think we are going to have to do a better 
job of explaining that we really have internalized these 
issues. We really mean it, when someone has registered 
positive, just like every other clearance procedure, we are not 
going to base either access or personnel decisions solely on 
the results of a polygraph. Now, people either believe that or 
they will not. It is incumbent upon us to persuade them that we 
actually mean it. It is incumbent upon us to train our 
counterintelligence folks and those people who conduct the 
polygraph exams that we mean it. But at the end of the day, on 
balance I believe if you take care of the false positive 
program in terms of its effects on the employee, that the 
utility of the polygraph still stands.
    Now, going back to the table, the interesting thing about 
the table is I think it really does present the conundrum very 
well, but I will point out it assumes that there is a 16 
percent false positive rate. That would be the 1,600 number 
that you identified out of the 10,000. I will say this, 
although we would have to talk about numbers in a closed 
session, our positive rate is a far smaller figure.
    The second aspect is that there is both the issue of 
accuracy--the NAS assumed for the purpose of that table that it 
was a 90 percent accuracy rate--and there is the issue of what 
decision threshold those people who conduct the exam are using. 
I think in that table they used an 80 percent. So it depends on 
your assumptions. I do not personally know whether or not any 
of those assumptions are correct. What I do know is it almost 
does not matter.
    The point the NAS is making is well taken. For every exam 
that you are using as a screening tool in a population like DOE 
where the number of ``guilty'' parties has to be incredibly 
small, you risk, by virtue of that base rate, as they call it, 
a number of false positives. If you cannot eliminate it, I 
think you have to manage it. You have to manage it in a way 
that does reduce the morale problems for the Department.
    Senator Bingaman. I think one of the things in your 
testimony--I guess this is in the notice of proposed 
rulemaking. It says DOE's priority should be on deterrence an 
detection of potential security risks, with a secondary 
priority on mitigating consequences of false positives and 
false negatives.
    Is there any reliable scientific evidence that there is a 
deterrent value in the use of a polygraph? What does it deter 
anyone from doing? Do we know that there is any deterrent 
value?
    Mr. McSlarrow. I do not think we know that. One of the 
other things that actually impressed me about the NAS report is 
it was very honest in basically saying, look, the problem we 
have here is that there is very little useful or credible 
scientific evidence one way or another. And then they made the 
case, using logic and other tools, as to why these concerns 
that they presented are valid, and as I said before, I accept 
that.
    They do go on to say that even if the case for validity of 
detection is minimal, as they clearly think in the case of 
screening use of the polygraph, that there is some likelihood 
of deterrent value just given our culture and given what people 
think about polygraphs. That is kind of an unknowable quantity. 
It only deters if someone actually believes the polygraph has 
utility. So of course, the farther we go down the road of 
undermining the polygraph's validity, the less likely I suppose 
that it will be effectively deterring people.
    But I think just as an impressionistic matter, I believe 
that there is a significant deterrent value in the use of the 
polygraph, and it is one reason why I proposed to the Secretary 
that we use the random program. It allows us, with the most 
minimal number possible, to still have some deterrent value in 
a larger population. It may well be that it is a relatively 
modest deterrent, but I would go on to argue, again just 
because of the nature of the target in our three weapons labs 
and what is there, that it is incumbent upon us, even if it is 
a modest addition to deterrence to use it unless there are such 
overpowering countervailing considerations.
    Senator Bingaman. I wish there was some way we could get at 
the question about this deterrence. Again, you have no 
scientific basis for your impression that there is a modest 
deterrent value; I have no scientific basis for my view. I 
guess I would assume, based on conversations I have had with 
people in our national laboratories, that the polygraph deters 
as many people from working for the labs as it does deter as 
many spies from seeking employment. I would think the reality 
is you have got a lot of patriotic Americans who just have 
other options that they would just as soon pursue and, as they 
see it, not have their patriotism questioned and not have to be 
hooked up to a machine to demonstrate that they are loyal 
citizens. So I just put that out for your consideration.
    In 1953, 50 years ago, the Atomic Energy Commission 
terminated its polygraph program as a general screening tool 
based on the findings that false positives were detrimental 
``to employee morale, personnel recruitment, lab and public 
relations.'' Have you gone back and looked at that decision 50 
years ago by the AEC in deciding what our policy should be 
today? It seems like we are sort of reliving history here a 
little bit. I think we should have learned something in the 
last 50 years, but it does not seem like we have learned very 
much.
    Mr. McSlarrow. I have not looked at that specifically. But 
I do accept as a premise--again, I do not know it--that 
somewhere, someplace someone has not either involved themselves 
in a program who is already a DOE or contractor employee or has 
even taken employment with the Department because they just did 
not even want to face the prospect of a polygraph. I know of a 
couple of instances where people have chosen other lines of 
employment within the complex because they did not wish to.
    I think the test for us is are we or are we not getting the 
right quality of talent to do the job. While all of us as 
managers and certainly lab directors and Ambassador Brooks, the 
Secretary, and I worry about the morale effect, I cannot say 
right now that that has resulted in our having a workforce that 
is not up to the task. I do not think that is the case. But it 
is a risk and a concern that we have to address and hence the 
recommendations I made.
    Senator Bingaman. I would just like to ask one additional 
question, Mr. Chairman.
    Under the recommendations you are now making to the 
Secretary, when someone took a polygraph test and failed the 
test, how would that person be dealt with differently under 
your recommendations than under the current situation in the 
Department?
    Mr. McSlarrow. Just focusing on the difference, I think 
there are really two chief differences. One is that if you 
cannot resolve it--say, they had a follow-up exculpatory 
polygraph, which is something they can do voluntarily, and it 
is still inconclusive or still showing deception--the new 
recommendation that I put before the Secretary is to have a 
counterintelligence review board. And the key about that is 
that you would have not just the program manager, the program 
in which access is being sought, and counterintelligence and 
security officials, but also the appropriate laboratory 
director so that a review is done that consists of people 
outside just the counterintelligence community, number one.
    Number two, for the follow-on investigations I am making a 
recommendation that we be much more willing to do the kinds of 
investigations that are not typically done today for your 
background investigation for a Q clearance. There are a number 
of other tools that we do not use today that could be available 
to us. The whole point would be if the polygraph triggers an 
investigation, you go full bore to try to get an answer. At the 
end of the day, if you have no derogatory information and all 
you have is a test result, that is not good enough to stop 
somebody from getting access to a program or obviously 
retaining their employment. So it would be up to that review 
board, A, to manage it, and I think provide some additional 
protections for the employee, but also to have at a very 
serious level some people who will have a real interest in 
driving this forward to a speedy conclusion because the other 
problem is not necessarily that someone has access denied.
    The other problem here is there is just not a decision ever 
made. People are unwilling to say, okay, we will give him 
access or her access in the absence of any data. At some point 
we have got to make a call. I think we owe it to the employee 
and to the Department that we make a call. And we may never get 
derogatory information.
    But I am fairly confident--again, this is just personal 
judgment--that if you really had someone who was a true 
positive and you used all these other investigatory tools, we 
will find the information, and if we do not, that should tell 
us something.
    Senator Bingaman. Thank you.
    The Chairman. Thank you, Senator Bingaman.
    Let me just say that I had been worried in the past about 
whether or not the laboratories have been consulted. In 
previous DOE programs, I do not believe that laboratory 
management was consulted in the prior program development. From 
your testimony and from comments from the labs, I gather that 
you did include the lab directors this time. Can you comment on 
the extent of involvement of lab personnel this time around and 
the general feedback that you are hearing from the labs and 
from whom on this Department's revised program?
    Mr. McSlarrow. In terms of the review I conducted, it was 
fairly close-hold. So in terms of the labs, it was the 
directors and a few of their senior people, including their 
counterintelligence professionals. Probably I talked to Paul 
Robinson more frequently than any other single lab director 
about these issues.
    But in addition, in more recent weeks, we had two quite 
lengthy video conferences with the lab directors and my team at 
headquarters, and there were other people obviously on the 
video conference at the labs who I cannot identify.
    But as I started to refine my thinking, having sort of 
received more input that I could possibly digest, I went back 
one time and sort of said, here is where I am thinking. Tell me 
why I am wrong. People were only too happy to do so, and then 
about 2 weeks later I had to add one again and said I am really 
getting close to it. Let us go through this again.
    While I do not want to speak for anybody, my sense is that 
probably no one was completely satisfied, but just about 
everybody in a leadership position in the Department, including 
laboratory directors, I believe certainly felt like they had 
input but I believe were comfortable with where we come out. 
And because it was a close-hold process until today, when it 
becomes public, I do not think we realistically will know what 
the impact or the thoughts of lab employees will be.
    The Chairman. Well, Mr. Secretary, I want to thank you for 
the effort, commend you on putting this together and your 
testimony today. We know that you have, by a happenstance of 
time, a very heavy plate with a lot of things on it, and to 
take time out sufficient to get this done, because we set this 
hearing, is commendable. I want you to know that I greatly 
appreciate it. That is not to say that I do not appreciate the 
work. I think the work is very good. I think we will find that 
it is a giant step in the right direction. Thank you very much. 
You are excused.
    Mr. McSlarrow. Thank you, Mr. Chairman.
    The Chairman. Our next witness, panel two, Dr. Stephen 
Fienberg, chairman of the National Research Council Committee 
to Review the Scientific Evidence on the Polygraph. Please 
proceed.

STATEMENT OF STEPHEN E. FIENBERG, CHAIRMAN, COMMITTEE TO REVIEW 
                THE SCIENTIFIC EVIDENCE ON THE 
              POLYGRAPH, NATIONAL RESEARCH COUNCIL

    Dr. Fienberg. Mr. Chairman, I am pleased to appear before 
you this morning. Accompanying me today is Dr. Paul Stern, who 
served as study director of the committee, and perhaps at a 
later occasion, if there are any questions that you want to 
direct to him, he would be happy to answer.
    The Chairman. Which one is he?
    Dr. Fienberg. Right here.
    The Chairman. All right.
    Dr. Fienberg. The committee's report, The Polygraph and Lie 
Detection, which was released last October, as you know, 
reviewed the scientific evidence underlying the use of 
polygraphs for security screening of employees at the national 
laboratories, and it also considered the potential alternatives 
to polygraph testing for the detection of deception. My 
testimony today is based on that report.
    The written testimony that I submitted to the committee 
earlier this week was prepared before I was aware of what 
Deputy Secretary McSlarrow would say this morning. He did have 
the courtesy to call me yesterday evening, so I did have some 
advance notice, but I did not have an opportunity to change the 
document and I probably will for the record.
    I should note that when somebody gives 2 years of his 
scientific life, which is what our committee members 
essentially did, to an enterprise like the activities of our 
committee, one typically looks for a response, and the response 
we saw in April was not exactly one that was heartening. After 
2 years of effort, to be told that there would be no change in 
policy was not something that the committee reacted positively 
to, I think it is fair to say.
    I am very gratified by the reaction evidenced in the Deputy 
Secretary's testimony today, and I will try to meld some of my 
written comments with responses to my understanding of what is 
there.
    Our report begins by setting the context of the current 
discussion over the efficacy of polygraph testing in the 
context of the mystique that surrounds it. This includes a 
culturally shared belief that the polygraph is nearly 
infallible, often evidenced by the kind of ideas associated 
with Wonder Woman and her magic lasso. When someone was caught 
in the magic lasso, they were forced to tell the truth. So the 
notion that the polygraph really had that impact is widely 
shared among those who really do not know much about it. As we 
note in the report, the scientific evidence strongly 
contradicts this belief.
    There were five key conclusions in our report, and let me 
just summarize them briefly.
    The scientific evidence supporting the accuracy of the 
polygraph to detect deception is intrinsically susceptible to 
producing erroneous results.
    Two, in populations of naive examinees--and I want to 
emphasize the word ``naive''--untrained in countermeasures, 
specific incidence polygraphs can discriminate lying from 
truth-telling at rates well above chance, though well below 
perfection. The accuracy of the polygraph in screening 
situations is almost certainly lower.
    Third, basic science gives reason for concern that 
polygraph test accuracy really can be degraded by 
countermeasures.
    Fourth, the scientific foundations of polygraph screening 
for national security are weak at best and insufficient to 
justify reliance on its use in employee security screening in 
Federal agencies.
    Then last, some potential alternatives show promise, but 
none has been shown to outperform the polygraph and none is 
likely to replace it in the short term.
    In April of this year, when the Department of Energy 
released the new draft regulations on its polygraph testing 
program of eight classes of Federal employees and contractors, 
its new regulations proposed to continue a policy that was set 
in place in 2000 but suspended pending the report of our 
committee. So it might be natural to ask what was in the report 
of direct relevance to the proposed regulations.
    The specific wording in the matter of security screening is 
worth repeating. ``Polygraph testing yields an unacceptable 
choice for DOE employee security screening between too many 
loyal employees falsely judged deceptive and too many major 
security threats left undetected. Its accuracy in 
distinguishing the actual or potential security violators from 
innocent test takers is insufficient to justify reliance on its 
use in employee security screening in Federal agencies.''
    The original regulations proposed in April paid only lip 
service to our conclusions and recommendations. The written 
document that I submitted earlier this week makes this clear, 
but I would like to try to highlight the major changes I see as 
a consequence of today's testimony of the Deputy Secretary and 
how they square with our report. I made a list of six key 
changes in the Department's position.
    One, do fewer tests. That has two components. Do testing of 
restricted groups in highly classified settings, and with this 
is a new definition of what should be top secret. And secondly, 
random screening, something I will come back to. I want to note 
that although there are fewer tests, there are still a lot of 
tests, and with the large number of tests, we still get the 
attendant false positives and false negatives.
    The second change is do less with the results of the tests. 
Although it was not in his oral testimony, in the written 
testimony Deputy Secretary McSlarrow talked about treating the 
results as more akin to anonymous tips than definitive evidence 
of deception. I think that if the Department got an anonymous 
tip about an employee, it would not lead to a full-bore 
investigation. So I think that there is still something to be 
worked out here.
    There is clearly a problem with a positive test result 
because there is not a backup test. Once somebody tests 
positive on a polygraph, there is nothing that science has to 
offer for the Department and the security program to do as a 
follow-up test. Doing another polygraph is simply not good 
enough.
    There is a second component to this change of doing less, 
and that is that there should be no adverse decision on access 
based solely on the results of the polygraph and also a 
recommendation to rely on the polygraph less for accelerated 
clearance. This is important in light of the false negative 
problem.
    I said I wanted to come back to random screening. That was 
my third item. This is random screening for deterrence. I want 
to emphasize that in our review of the literature on the 
polygraph, we found no scientific evidence in support of the 
deterrent effect of the polygraph. That does not mean that it 
does not exist. It is that we have never done a serious 
investigation of it, and especially deterrence for possible 
spies.
    The Deputy Secretary--this is my fourth point--talked about 
anecdotal reports of admissions. We, in the course of our 
deliberations, heard many anecdotal reports. We never received 
written documentation that would allow us to assess them 
carefully or to put them in context where their scientific 
usefulness could be assessed.
    Point five, do more research. I can only applaud the Deputy 
Secretary's support for our position on this. He suggested in 
the written testimony that we do not know much about the 
polygraph, but I want to say that we do know something about 
its limits and they suggest that it simply is not up to the 
task that we have before us. We should not expect to make the 
polygraph better, but we should look for better approaches.
    In the original response to our report, the DOE continued 
to rely on polygraph screening as before and, in doing so, was 
doing more for the appearance of security than for the reality. 
The new proposals rely far less on the polygraph, but our 
committee made clear that while that was the case, we simply 
should not believe that the polygraph was going to be the 
answer in the future. While some potential alternatives show 
promise, none has led to scientific breakthroughs in lie 
detection. So we cannot look for a short-term fix to aid our 
quest for securing the Nation and its secrets. The labs need a 
strong security program, not a false sense of security. There 
are better alternatives than maintaining the current polygraph 
policy even in its revised form.
    Last year, the DOE got two reports, our report and one from 
the Commission on Science and Security, the so-called Hamre 
Commission report. It recommended management and technological 
changes at the labs that could make unauthorized release of 
national secrets more difficult to conduct and easier to detect 
without relying on the polygraph or other methods of employee 
screening, all of which are seriously limited and have little 
or no scientific base.
    So while there still may be a place for polygraph testing 
in the labs for investigations and for small numbers of 
individuals with access to the most highly sensitive classified 
information, if the test's limited accuracy is fully 
acknowledged--and this is what the DOE is now proposing to do 
at least in part--the question is how limited. In his statement 
today, Deputy Secretary McSlarrow suggests he agrees with the 
committee that the broad use of this flawed test for screening 
will probably do more harm than good, and we believe that 
national security is too important to be left for such a blunt 
instrument.
    Let me just conclude by reminding you that polygraph 
testing rests on weak scientific underpinnings despite nearly a 
century of study. Much of the available evidence for judging 
its validity lacks scientific rigor, and our committee sifted 
that evidence and the report makes clear the limitations of the 
polygraph for the present context. Searching for security risks 
using the polygraph is not simply like a search for a needle in 
a haystack. It is true that of the large group of people being 
checked, only a tiny percentage of the individuals examined may 
be guilty of the targeted offenses. Unfortunately, tests that 
are sensitive enough to spot most violators will also 
mistakenly mark large numbers of innocent test-takers as 
guilty, and tests that produce few of these types of errors, 
such as those currently used by the DOE, will not catch the 
most major security violators and still will incorrectly flag 
truthful people as deceptive, both kinds of errors. Thus, the 
haystack analogy fails to recognize that unacceptable tradeoff 
I mentioned earlier in my testimony.
    Our committee concluded that the Government agencies could 
not justify their reliance on the polygraph for security 
screening. Today's testimony and the new proposals seem much 
more consistent with the scientific evidence. As a Nation, we 
should not allow ourselves to continue to be blinded by the 
aura of the polygraph. We can and we should do better. The NRC 
and I think the members of our committee look forward to the 
possibility of working with Mr. McSlarrow as the DOE refines 
its new proposals.
    Thank you. I would be happy to answer your questions and 
amplify on these comments.
    [The prepared statement of Dr. Fienberg follows:]

   Prepared Statement of Stephen E. Fienberg, Chairman, Committee to 
  Review the Scientific Evidence on the Polygraph, National Research 
                                Council

    Mr. Chairman, and Senators. I am pleased to appear before you this 
morning. I am Maurice Falk University Professor of Statistics and 
Social Science, in the Department of Statistics, the Center for 
Automated Learning and Discovery, and the Center for Computer and 
Communications Security, all at Carnegie Mellon University. I also 
served as the Chair of the National Research Council's Committee to 
Review the Scientific Evidence on the Polygraph. Accompanying me today 
is Dr. Paul Stern, who served as the Study Director for the committee. 
The committee's report, The Polygraph and Lie Detection, which was 
released last October reviewed the scientific evidence underlying the 
use polygraphs for security screening of employees at the national 
laboratories. It also considered the potential alternatives to 
polygraph testing for the detection of deception. My testimony today is 
based on that report.

                      THE NAS-NRC COMMITTEE REPORT

    The committee's report begins by setting the current debate over 
the efficacy of polygraph testing in the context of the mystique that 
surrounds it--this includes a culturally shared belief that the 
polygraph is nearly infallible. As we note in the report, the 
scientific evidence strongly contradicts this belief.
    Let me now briefly summarize the committee's principal conclusions:

          1. The scientific evidence supporting the accuracy of the 
        polygraph to detect deception is intrinsically susceptible to 
        producing erroneous results.
          2. In populations of naive examinees untrained in 
        countermeasures, specific incidence polygraph tests can 
        discriminate lying from truth telling at rates well above 
        chance, though well below perfection. But the accuracy of the 
        polygraph in screening situations is almost certainly lower.
          3. Basic science gives reason for concern that polygraph test 
        accuracy can be degraded by countermeasures.
          4. The scientific foundations of polygraph screening for 
        national security were weak at best and is insufficient to 
        justify reliance on its use in employee security screening in 
        federal agencies.
          5. Some potential alternatives to the polygraph show promise, 
        but none has been shown to outperform the polygraph and none is 
        likely to replace it in the short term.

    I have appended the Executive Summary of the report to this 
testimony as it contains the specific wording of these conclusions and 
details explaining how the committee reached them.

                      THE DOE PROPOSED REGULATIONS
 
   In April of this year, the Department of Energy released new draft 
regulations on its program of polygraph testing of eight classes of 
federal employees and contractors who have access to classified 
information. The new regulations would continue a policy that was set 
in place in 2000 but suspended in 2001, pending the report of the NAS-
NRC committee. Thus it might be natural to ask what in the report is of 
direct relevance to the proposed regulations.
    Let me return to the specific wording of the committee's 
recommendation on the matter of security screening:

          Polygraph testing yields an unacceptable choice for DOE 
        employee security screening between too many loyal employees 
        falsely judged deceptive and too many major security threats 
        left undetected. Its accuracy in distinguishing actual or 
        potential security violators from innocent test takers is 
        insufficient to justify reliance on its use in employee 
        security screening in federal agencies.

    How does DOE square these conclusions with its plan to continue the 
polygraph policy unchanged? It says that the polygraph, though ``far 
from perfect, will help identify some individuals who should not be 
given access to classified data, materials, or information.'' This may 
be true, but two other things about polygraph screening are also true 
that should give pause.
    First, for every such individual identified, hundreds of loyal 
employees will be misidentified as possible security threats. Our 
report make clear that, given DOE's own expected rates of security 
violations, someone who ``fails'' the DOE polygraph screening test has 
over a 99 percent chance of actually being a truthful person. 
Unfortunately, the DOE doesn't have any other scientific tool to fall 
back on to distinguish the security violators from the innocent people 
falsely accused.
    Second, any spy or terrorist who takes the DOE's polygraph test is 
far more likely to ``pass'' the test than to ``fail'' it--even without 
doing anything to try to ``beat'' the test. Efforts at so-called 
countermeasures are likely to increase further the chances that a 
committed spy or terrorist will ``beat'' the test. This is the most 
serious problem with polygraph screening, especially in these times of 
terrorist threat: the possibility that security officials will take a 
``passed'' polygraph too seriously, and relax their vigilance.
    The DOE regulations give every indication that the agency has just 
this sort of overconfidence in polygraph tests that give ``passing'' 
results. The proposed regulations say, ``DOE's priority should be on 
deterrence and detection of potential security risks with a secondary 
priority of mitigating the consequences of false positives and false 
negatives.'' The committee found little scientific evidence to support 
the effectiveness of the polygraph in this regard. Moreover, it 
concluded that the consequences of false negative tests--tests that 
deceivers ``pass''--should have top priority, because it is those test 
results that leave the nation open to the most serious threat, from 
people whose continued access to sensitive information is justified 
because they ``passed the polygraph.''
    The DOE, in continuing to rely on polygraph screening just as 
before, is doing more for the appearance of security than for the 
reality. Moreover, while some potential alternatives to polygraphs show 
promise, none has led to scientific breakthroughs in lie detection. 
Thus we cannot look for a short-term quick technological fix to aid us 
in our quest for securing the nation and its secrets.
    The nuclear weapons labs need a strong security program, not a 
false sense of security. There are better alternatives than maintaining 
the previous polygraph policy. Last year, the DOE's Commission on 
Science and Security recommended management and technological changes 
at the labs that could make unauthorized release of national secrets 
more difficult to conduct and easier to detect without relying on the 
polygraph or other methods of employee screening--all of which are 
seriously limited and have little or no scientific base. There may 
still be a place for polygraph testing in the labs, for investigations 
and for a small number of individuals with access to the most highly 
sensitive classified information, if the test's limited accuracy is 
fully acknowledged. But broad use of this flawed test for screening 
will probably do more harm than good. National security is too 
important to be left to such a blunt instrument.

                               CONCLUSION

    Let me conclude by reminding you that polygraph testing now rests 
on weak scientific underpinnings despite nearly a century of study. And 
much of the available evidence for judging its validity lacks 
scientific rigor. Our committee sifted the existing evidence and our 
report made clear the polygraph's serious limitations in employee 
security screening. Searching for security risks using the polygraph is 
not simply like search for a needle in a haystack. It is true that, of 
the large groups of people being checked, only a tiny percentage of 
individuals examined are guilty of the targeted offenses. 
Unfortunately, tests that are sensitive enough to spot most violators 
will also mistakenly mark large numbers of innocent test takers as 
guilty. Further, tests that produce few of these types of errors, such 
as those currently used by the DOE, will not catch most major security 
violators--and still will incorrectly flag truthful people as 
deceptive. Thus the haystack analogy fails to recognize the 
unacceptable trade-off posed by these two types of errors.
    Our committee concluded that the government agencies could not 
justify their reliance on the polygraph for security screening. The 
proposed DOE regulations appear to disregard our findings and 
conclusions. As a nation, we should not allow ourselves to continue to 
be blinded by the aura of the polygraph. We can and should do better.
    I would be happy to answer your questions and amplify on these 
comments.

    The Chairman. Dr. Fienberg, thank you very much. Thanks to 
you and all those who worked with you for an excellent effort 
in behalf of your country. I am pleased that in this instance 
it is obvious that you have had a significant degree of success 
already. It did not take a long time. We got it today. I am 
sure it needs refinement and I would suggest that they continue 
to work with you, if you all are willing to work with them, as 
they attempt to refine it.
    I am most interested in how the laboratory employees, the 
people that we worked so hard in behalf of, as we worried about 
their morale and their efficiency and other things. I am kind 
of worrying now about what their feelings are going to be, and 
we cannot find that out for a while. We are going to have to go 
out there and be tested and see what the employer can do with 
reference to their program. I hope you get a chance to review 
those results also from time to time.
    Your report noted that there might be better technologies 
than the polygraph for detecting truthfulness. I have been 
particularly interested, for a completely different reason, in 
brain imaging technologies. Specifically I have had a long 
history of concern with the MEG, magneto-encephalography 
technology. That is also a creature of one of the laboratories, 
Los Alamos. It is a mighty technology that when tentacles are 
affixed to the skull, there are brain wave reverberations that 
come out, and now that we have the computer capacity that we 
have, we get images that are able to be read in a manner beyond 
anything we could do before in fixed time pictures of brain 
reaction.
    I am not scientific enough to be suggesting that it will 
have a role because it might have no role just because it is 
too bulky. But I note that you are interested in new 
technologies and I wondered if, to your knowledge, has MEG been 
studied for use in lie detection, and do you think it might 
offer a promise? And what other technologies might there be, 
Doctor?
    Dr. Fienberg. I confess I probably would have had the same 
difficulty to pronounce the full name of MEG, and I am not sure 
I fully understand the details of that technology.
    There are some related technologies that the committee did 
have an opportunity to study a bit; that is, we studied 
available evidence. One of these is referred to as brain 
fingerprinting which does involve recordings from the scalp in 
much the same way you described and something called the P300 
wave. There have been several of these studies.
    What the committee's report notes is that the nature of 
what is being measured in the P300 or the so-called brain 
fingerprinting technique is much more focused and useful for 
specific-incident situations. We were very hard-pressed to 
understand the extent to which it would be useful for security 
screening purposes. We, in fact, spoke with one of the foremost 
proponents of that technique, and I believe he agreed with us 
about the relative value of it.
    The other area that is brain-related is the use of 
functional magnetic resonance imaging, or FMRI. I can pronounce 
that one. We actually had occasion to review three different 
studies, two published and one unpublished, on FMRI. It turns 
out that we are not very far in the use of that kind of 
technology. The three studies did detect the ability of FMRI to 
distinguish deception from truth-telling better than chance. So 
there is something there, but unfortunately, they discovered 
the part of the brain that seemed to be most helpful in this 
was different in the three studies. That unfortunately does not 
help us move rapidly ahead with a program in that area.
    The Chairman. Incidentally, not that it makes a bit of 
difference, but the FMRI is currently being used by hooking it 
together with the MEG, and the results are rather fantastic 
only in that you can now get real-time pictures of the brain, 
not slices but real-time pictures, which is going to be a 
fantastic device. If applied to schizophrenia in sufficient 
test mode, you might find how the brain actually changes and 
moves with reference to diseases like that. Whether it is ever 
going to help in this area, I just threw it out here today just 
to show you I knew something.
    [Laughter.]
    The Chairman. If you will please let me leave and hold me 
excused, I am going to turn it over to Senator Bingaman and 
thank you and thank him for his consistent and persistent work 
in this regard and hope that you get your wish that we not only 
do what the Secretary said today, but we do better, and that a 
broader array of institutions find out about polygraph through 
you and through this and do not use it in other areas either 
where it is obviously being used beyond our laboratory 
employees. Thank you.
    Senator Bingaman. Thank you.
    The Chairman. Thank you, Doctor.
    Senator Bingaman. Let me just ask a couple of questions 
before we end the hearing. Let me just summarize, and I join 
Senator Domenici in thanking you and the committee members for 
the good work you have done here. I think it is very important 
and I think it will have impacts on the use of polygraphs 
throughout the Government. I hope that is the case, and I 
believe it is.
    As I understand it, you have concluded that in trying to 
detect the difference between deception and truth-telling, 
polygraphs can be a useful tool where you have a particular 
investigation that you are pursuing related to a particular 
individual or group of individuals. There is a higher incidence 
of accuracy in the use of a polygraph under those circumstances 
than there is when you are trying to use it to screen a large 
group of individuals to see whether they are engaged in 
anything improper. Is that a fair summary of what you have 
concluded?
    Dr. Fienberg. I think that that is reasonably correct.
    Senator Bingaman. Now, what the Deputy Secretary today has 
advised us is that he has become persuaded, after reading your 
report, that the broad use of the polygraph for screening is 
not appropriate, broad meaning as broadly as they were 
previously using it. Therefore, they are going to reduce the 
number of people who are subjected to polygraphs, and they are 
going to reduce the extent to which they rely upon the results 
of those tests, but they are going to continue to use it for 
screening just as they have in the past, just do so in fewer 
cases. Is that your understanding essentially of what they have 
concluded?
    Dr. Fienberg. That is correct.
    Senator Bingaman. The difference of opinion, which still 
exists between your committee's conclusions and what the 
Department is doing, is they are continuing to use it as a 
screening tool where you believe that the scientific evidence 
does not support that.
    Dr. Fienberg. That is correct. In the report, we did make 
reference to the potential usefulness if there were truly a 
deterrent effect.
    Senator Bingaman. But you have no evidence that there is a 
deterrent effect.
    Dr. Fienberg. But we have no evidence, and I think it is 
fair to say that there was a spectrum of opinion on the 
committee, ranging from those who believed that there was a 
deterrent effect, although it was impossible to quantify, 
through to those at the other end of the spectrum who believed 
that there was no effect whatsoever.
    Senator Bingaman. When you say deterrent effect, what kind 
of deterrence are you talking about? Are you talking about 
deterring people who are spies from seeking employment in these 
jobs, or are you saying this would deter people who might 
consider engaging in some kind of disloyal activity from doing 
so? What are you thinking about?
    Dr. Fienberg. That is a wonderful question because I think 
it is fair to say that we were not very explicit about what it 
meant. Indeed, when people referred to the deterrent effect, 
they are rarely explicit about what behaviors it is, in fact, 
deterring. I think there is a belief that both of the kinds of 
circumstances you described would be lumped together, but I do 
not think people are explicit because they have nothing to rely 
on when in fact they talk about that.
    In fact, the thing that I would emphasize is that in many 
ways--and this goes back to where you began. The polygraph is 
an interrogation tool. It is not a tool to learn about truth-
telling. As an interrogation tool, it can deter people from 
engaging in activities because they may be afraid to be 
interrogated about them. So it is in that sense that people 
typically talk about deterrence.
    But ultimately the utility, we also noted, depends on 
whether or not there is any scientific basis for the detection 
of deception. As people learn the truth--and it was not simply 
our committee that blew the whistle on the polygraph. People 
have been saying this for a long time--it is simply not 
appropriate in these circumstances for large-scale testing. And 
so the question is what is large scale I think at this point.
    Senator Bingaman. Let me just ask a final question about 
this Atomic Energy Commission decision in 1953 to terminate 
their polygraph program at that time. This is information I 
believe you have come across in your studies. Could you give us 
any more information on that?
    Dr. Fienberg. At the time that we were preparing our 
report, I confess I did not know very much about this study. 
Nobody had brought it to our attention. Actually, as the report 
was undergoing revision, a historian, Ken Alder, who had done 
some research on the history of the polygraph, shared with me a 
number of documents, including some relatively recently 
unclassified documents about what happened.
    Following the Manhattan Project, the AEC actually began a 
polygraph screening program at Oak Ridge in the 1940's. It was 
initiated by Leonard Keeler, who was one of the original 
creators of the physical machine we call the polygraph today, 
and at the time the foremost polygraph tester. He started out 
with a couple of hundred tests, and within 6 months, they were 
screening all of the major employees at the labs. At one 
point--it is a little hard to get the numbers from the released 
documents--well over 5,000 people were undergoing regular 
polygraph screening, not by Keeler but by a contractor from the 
outside. All of this may sound sort of eerily familiar as we 
look backward. It involved testing managers, scientists, 
engineers, technical workers, and then later contractors.
    Initially Keeler found nine people who admitted to having 
stolen product material as a result of the polygraph tests. 
When that was subject to closer examination and extended 
review, it turned out it was all a hoax. In fact, the polygraph 
had detected nothing at all.
    Senator Bingaman. The polygraph had detected nothing in the 
sense that they may have stolen the material?
    Dr. Fienberg. No.
    Senator Bingaman. Oh, they did not steal any material?
    Dr. Fienberg. It wasn't stolen material. It was a hoax. The 
polygraph believed people when they admitted having done 
things.
    By 1952, the hue and cry was so great that the AEC was 
forced to set in motion a scientific review, and they created a 
five-person panel of what I would label as polygraph-friendly 
scientists, people who actually had either done studies or 
supported scientific articles. They reviewed what went on at 
the Oak Ridge facilities and pointed out that even though the 
polygraph had considerable value, there were major problems 
with the program at the time. There was Senate action. Senator 
Wayne Morse actually spoke out at length against the polygraph, 
and a bill was introduced in Congress to do a detailed 
scientific study at one point.
    In March 1953, almost 50 years to the day prior to the DOE 
announcement in the Fed Reg, the Atomic Energy Commission 
issued a statement withdrawing the program as a result of both 
the objections and the concerns expressed by the polygraph-
friendly scientific panel.
    So it is an interesting episode. What for me is especially 
interesting is that in the intervening 50 years, we seem not to 
have learned much from that original lesson. We did not learn 
much science, except that maybe we more fully understood the 
limitations of the polygraph, and we did not learn about the 
implications of trying to impose a large-scale security 
screening program on a major facility in the absence of other 
kinds of security measures.
    Senator Bingaman. I think that is a useful history for us 
to have in mind. So thank you very much for relating that, and 
thanks again for the report and for your testimony.
    We will perhaps have some additional questions submitted 
for the record here in the next day or 2, and we will leave the 
record open for that purpose.
    We will conclude the hearing at this point.
    [Whereupon, at 11:17 a.m., the hearing was adjourned.]

