[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
______
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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
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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
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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\
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\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\
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\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.]