U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

90–082 PDF 2003

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

(II)

COMMITTEE ON ENERGY AND NATURAL RESOURCES

PETE V. DOMENICI, New Mexico, Chairman

DON NICKLES, Oklahoma

LARRY E. CRAIG, Idaho

BEN NIGHTHORSE CAMPBELL, Colorado

CRAIG THOMAS, Wyoming

LAMAR ALEXANDER, Tennessee

LISA MURKOWSKI, Alaska

JAMES M. TALENT, Missouri

CONRAD BURNS, Montana

GORDON SMITH, Oregon

JIM BUNNING, Kentucky

JON KYL, Arizona

JEFF BINGAMAN, New Mexico

DANIEL K. AKAKA, Hawaii

BYRON L. DORGAN, North Dakota

BOB GRAHAM, Florida

RON WYDEN, Oregon

TIM JOHNSON, South Dakota

MARY L. LANDRIEU, Louisiana

EVAN BAYH, Indiana

DIANNE FEINSTEIN, California

CHARLES E. SCHUMER, New York

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

(III)

C O N T E N T S

STATEMENTS

Page

Bingaman, Hon. Jeff, U.S. Senator from New Mexico .......................................... 1

Domenici, Hon. Pete V., U.S. Senator from New Mexico ..................................... 16

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

McSlarrow, Kyle E., Deputy Secretary of Energy, Department of Energy ......... 3

Tauscher, Hon. Ellen O., U.S. Representative from California ........................... 2

(1)

DOE POLYGRAPH PROGRAM

THURSDAY, SEPTEMBER 4, 2003

U.S. SENATE,

COMMITTEE ON ENERGY AND NATURAL RESOURCES,

Washington, DC.

The committee met, pursuant to notice, at 10:03 a.m., in room

SD–366, Dirksen Senate Office Building, Hon. Pete V. Domenici,

chairman, presiding.

OPENING STATEMENT OF HON. JEFF BINGAMAN,

U.S. SENATOR FROM NEW MEXICO

Senator BINGAMAN. Why don’t we go ahead and get started? Senator Domenici is delayed and asked me to go ahead and start the

hearing.

I want to thank Deputy Secretary McSlarrow and Professor

Fienberg both for appearing today and dealing with this issue,

which is in my view very important, but one that has been with

us for quite a while.

This program to have all of these polygraphs conducted in the

Department of Energy was inserted in the Senate Armed Services

bill in August 1999, and that was at the height of the concern

about the perceived loss of nuclear weapons data to foreign governments, particularly the government of China, as I remember it. At

that time, our Government was developing a case against Dr. Wen

Ho Lee. There have been numerous questions and criticisms about

how that investigation and case preparation was conducted.

Also, at that time was a report from the House Select Committee

on U.S. National Security and Military Commercial Concerns with

the People’s Republic of China, and that report pointed out the degree with which sensitive dual-use and military technology was

being exported to China.

So when the DOE polygraph program was authorized, we were

in the midst of a crisis over the alleged loss of nuclear weapons

data. I am not sure if we have conclusively proven or disproven

many of the allegations made at that time.

What still remains, of course, is the polygraph program that was

put in place at that time. It now screens up to 20,000 Federal and

laboratory employees to counterintelligence polygraphs.

In October 1999, we initiated an amendment in the Armed Services Committee to ask the National Academy of Sciences to look at

the scientific validity of polygraphs. The amendment was to build

upon the 1983 study that was done by the Office of Technology Assessment which found that polygraphs were subject to operator

2

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

3

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

4

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

5

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 informaVerDate 11-SEP-98 11:28 Oct 29, 2003 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6602 J:\DOCS\90-082 SENERGY3 PsN: SENERGY3
6

tion 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:]

7

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 knowhow 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

8

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

9

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.

10

1The 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.

• 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

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

11

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.

12

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 ofVerDate 11-SEP-98 11:28 Oct 29, 2003 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 J:\DOCS\90-082 SENERGY3 PsN: SENERGY3
13

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.

fices 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

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.

14

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

15

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

16

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

17

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.

18

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

19

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.

20

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

21

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

22

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 closehold 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 conVerDate 11-SEP-98 11:28 Oct 29, 2003 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6602 J:\DOCS\90-082 SENERGY3 PsN: SENERGY3
23

sidered 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 naı ̈ve examinees—and I want to emphasize the word ‘‘naı ̈ve’’—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.

24

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 writVerDate 11-SEP-98 11:28 Oct 29, 2003 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6602 J:\DOCS\90-082 SENERGY3 PsN: SENERGY3
25

ten 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.

26

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 naı ̈ve 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.

27

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.

28

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-tellVerDate 11-SEP-98 11:28 Oct 29, 2003 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6602 J:\DOCS\90-082 SENERGY3 PsN: SENERGY3
29

ing 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

30

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 initiVerDate 11-SEP-98 11:28 Oct 29, 2003 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6602 J:\DOCS\90-082 SENERGY3 PsN: SENERGY3
31

ated 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.]

Æ