After criticism, Obama officials quietly craft new polygraph policy

McClatchy NewspapersJanuary 24, 2013 

US NEWS CLAPPER 2 ABA

Director of National Intelligence James Clapper

OLIVIER DOULIERY — Abaca Press/MCT

— The Obama administration is drawing up a new national polygraph policy in the wake of allegations that federal agencies are pushing legal and ethical limits during screenings of job applicants and employees.

The decision by National Intelligence Director James Clapper to draft a new policy comes after his office conducted a review of federal polygraph programs and after McClatchy detailed allegations of polygraph abuses. Clapper’s review found “inconsistencies” across the government that led him to order a new policy, but it also found that “all programs were operating appropriately,” Clapper’s public affairs office said in a statement to McClatchy.

But a congressman who’d asked Clapper to look into alleged polygraph abuses said the director was being “dismissive” of a more serious problem with the way the federal government conducts its screenings. In its statement, Clapper’s public affairs office said the inconsistencies “related to administrative practices, rather than the substance of the polygraphs.” The review was completed between July and August.

“This is a non-response,” said Rep. Rush Holt, a New Jersey Democrat. “I’m really concerned that throughout the intelligence community there has been an unwillingness to ask critical questions about polygraph.”

Independent national-security experts agreed that Clapper appeared to be downplaying legitimate concerns about the federal government’s use of polygraph. Several of them who read a draft of the policy obtained by McClatchy said it would do little to crack down on overly aggressive polygraph interrogations. In fact, it appears to allow agencies to continue current practices with few new requirements and may even grant agencies more latitude in some instances.

“It does not address polygraph abuses at all,” said Steven Aftergood, who runs the Federation of American Scientists’ Project on Government Secrecy. “Given that polygraph testing is not going away, a new policy should grapple directly with the problems it poses.”

In a series of articles on polygraph screening published last year, McClatchy found that 15 federal agencies polygraph more than 70,000 job applicants and employees across the country each year to determine whether they’re trustworthy enough to get security clearances or jobs.

Private thoughts and secret behaviors are written down, tape-recorded, permanently filed in vast databases and shared across multiple agencies. Depending on the agency, polygraphers could ask about a wide range of information, including relationships with foreigners, sexual conduct and whether someone has leaked government information to the news media.

McClatchy also reported how some polygraphers felt they were being pressured to push ethical and legal boundaries by collecting information not directly related to national security during screenings. The National Reconnaissance Office – the nation’s spy satellite agency – isn’t supposed to be directly eliciting such information, but some polygraphers contended that those who did were rewarded with bonuses and those who didn’t were punished. Polygraphers and job applicants at various federal agencies also described how routine screenings sometimes turn into harsh interrogations. One National Reconnaissance Office polygrapher said he felt pressured to interrogate an employee about her sexual abuse as a child during a screening. Separately, a CIA job applicant said polygraphers had asked her about her reported rape and miscarriage.

Holt told Clapper that the alleged abuses reminded him of “tactics employed by our former Soviet enemies” and he called on the director to reconsider conducting widespread polygraph screening.

Currently, six agencies, including the National Reconnaissance Office, are supposed to stick to national security questions, such as whether someone has leaked classified information or has inappropriate relationships with foreigners. These polygraphers are told to avoid delving into other personal matters, such as sexual conduct and psychological issues, unless the person volunteers the information on his or her own.

Nine other agencies that use polygraph screening, however, see it as crucial in rooting out applicants or employees who are hiding crimes or deviant or unstable behavior that should bar them from certain jobs. Those agencies ask questions about prior drug use, undisclosed crimes and lying on the security-clearance application form.

As a result, polygraphers can explore many topics that aren’t directly linked to national security, such as personal finances, sexual history and psychological problems, including minor depression.

The draft policy says polygraph screening questions “shall be relevant to national security matters,” but it doesn’t specify what that would mean. Clapper’s public affairs office said it couldn’t respond to specific questions about the policy because it was being finalized.

Several national security experts who read the draft said other proposed changes include:

– Requiring a federal agency to accept another’s polygraph results. Currently, some job applicants who pass a polygraph at one agency sometimes are required to undergo the test at another.

– Clarifying that agencies should report “relevant” law-enforcement or national security information that’s unearthed during polygraph screening, but it doesn’t spell out what that would entail. In two cases, local law enforcement officials told McClatchy that the federal government didn’t notify them of polygraph confessions to sexual abuse of children. One case involved a former teacher who confessed during a polygraph screening to molesting a 9-year-old student.

– All agencies would have to ask specifically about leaking classified information to the media. Although most intelligence agencies already ask about media leaks, other agencies aren’t as consistent. After a series of high-profile and controversial leaks from the Obama administration, Congress is likely to welcome the proposal, despite objections from the media and others that such efforts have a chilling effect on the reporting of government actions or malfeasance.

“While polygraphs can’t be the only way to identify the leaks of classified information to the media, it appears to be a reasonable question,” said one congressional aide, who asked to remain anonymous because of the sensitivity of the matter.

Meanwhile, federal agencies could still ignore any of the proposed provisions they don’t like by simply passing their own unpublished rules, said Kel McClanahan, a national security lawyer in Washington.

“This isn’t so much an attempt to assert authority as an attempt to appear to assert authority,” McClanahan said.

The policy also doesn’t set up an independent forum to handle individual complaints about polygraph results or abuses. As it stands, most federal employees and applicants are barred from suing in court, forced instead to seek recourse from the agencies that denied their jobs or security clearances in the first place. Federal offices that handle complaints of discrimination often refer the complaints back to polygraph divisions to handle, rather than investigating.

Aftergood said Congress should be more involved in scrutinizing federal polygraph programs – not by passing new legislation, but by demanding more details about practices and alleged abuses. Before the Sept. 11, 2001, terrorist attacks, lawmakers held hearings to debate the wisdom of polygraph screening. Since then, Congress has dropped a reporting requirement for the Pentagon and has required Customs and Border Protection to polygraph law enforcement applicants.

“Congress needs to provide meaningful oversight,” Aftergood said.

The congressional aide said, however, that it was unlikely that Congress would weigh in on Clapper’s new rules before they were finalized.

“We will want to make sure we understand the new policy and follow its implementation,” the aide said.

Holt said that the National Academies, which advises the U.S. government on scientific matters, might need to undertake its own review. In 2003, the National Academies urged the federal government to stop using the tests as a screening technique. The organization examined thousands of polygraph studies and concluded that the risk of innocent people failing the test, and spies passing it, was too high.

“It may be that practices have changed in the intelligence community” since the last report, said Holt, who‘s a retired physicist. “But I’d like to know whether there have been fundamental changes.”

Clapper, meanwhile, made it clear in a letter to Holt that the federal government has no plans to scale back the use of polygraph screening although agencies continue to seek out an alternative that “is less intrusive.”

Email: mtaylor@mcclatchydc.com

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