STATEMENT OF RICHARD K. WILLARD DEPUTY ASSISTANT ATTORNEY GENERAL U.S. DEPARTMENT OF JUSTICE BEFORE THE LEGISLATION AND NATIONAL SECURITY SUBCOMMITTEE OF THE COMMITTEE ON GOVERNMENT OPERATIONS U.S. HOUSE OF REPRESENTATIVES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85M00364R002304500007-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 45
• Document Creation Date: December 21, 2016
• Document Release Date: May 2, 2008
• Sequence Number: 7
• Publication Date: October 19, 1983
• Content Type: REPORT

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STATEMENT
OF
RICHARD R. WILLARD
DEPUTY ASSISTANT ATTORNEY GENERAL
U.S. DEPARTMENT OF JUSTICE
BEFORE
THE
LEGISLATION AND NATIONAL SECURITY SUBCOMMITTEE
OF THE
COMMITTEE ON GOVERNMENT OPERATIONS
U.S. HOUSE OF REPRESENTATIVES
PRESIDENTIAL DIRECTIVE ON
SAFEGUARDING NATIONAL SECURITY INFORMATION
AND
POLYGRAPH EXAMINATIONS OF FEDERAL EMPLOYEES
OCTOBER 19, 1983
DOJ Review Completed.
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Mister Chairman, I appreciate the opportunity to appear
before this Committee to describe the background and purpose of
President Reagan's recent directive on safeguarding national
security information. In addition, I will undertake to describe
this Administration's views concerning polygraph examinations of
federal employees.
Since the days of the Founding Fathers, we have recognized
the need to protect military and diplomatic secrets. This need is
even more acute today because of the dangerous world in which we
live, including the ever-present threat of nuclear war.
Our adversaries employ highly efficient intelligence
services, which use overt and covert means to gather information
concerning American military capabilities, diplomatic intentions,
and our own intelligence efforts. The security of this nation and
the peace of the world depend'in large part on our ability to keep
certain kinds of this information secret.
Our task is complicated by the fact that we have a tradition
of free speech and a form of government that depends upon an
informed electorate. Unnecessary secrecy is contrary to our most
fundamental values.
The protection of information that must be kept secret in the
interest of national security is an important constitutional
responsibility of the President. Since at least 1940, Presidents
have protected this information through Executive orders providing
for a system of classification. In a number of civil and criminal
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statutes,-Congress has recognized the President's authority to
adopt such Executive orders.
The present Exedutive Order on Classification was issued by
President Reagan in 1982. It limits the use of classification to
information that "reasonably could be expected to cause damage to
the national security" if released without proper authorization.
This Executive Order also prohibits the use of classification to
conceal violations of law, inefficiency or administrative error,
or to prevent embarrassment to a government agency or employee.
The unauthorized disclosure of classified information has
been specifically prohibited by each of the Executive orders on
this subject. Such disclosures also violate numerous more general
standards of conduct for government employees based on statutes
and regulations. Moreover, in virtually all cases the
unauthorized disclosure of classified information potentially
violates one or more federal criminal statutes.
Notwithstanding the clear illegality of this practice,
unauthorized disclosures of classified information appear in the
media with startling frequency. President Reagan has expressed
his personal concern about this serious problem in a memorandum
for federal employees dated August 30, 1983. The President's
memorandum includes the following statements:
"Recent unauthorized disclosures of classified
information concerning our diplomatic, military, and
intelligence activities threaten our ability to carry
out national security policy. . . . [These] disclosures
are so harmful to our national security that I wish to
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underscore to each of you the seriousness with which I
view them.
"The unauthorized disclosure of our Nation's
classified -information by those entrusted with its
protection is improper, unethical, and plain wrong
"The American people have placed a special trust
and confidence in each of us to protect their property
with which we are entrusted, including classified
information . . .
of . . . As servants of the people, we in the
Federal Government must understand the duty we have to
those who place their trust in us. I ask each of you to
join me in.-redoubling our efforts to protect that
trust."
A copy of the complete memorandum is attached to- my statement as
Presidential Directive on
Safeguarding National Security Information
In addition to reminding federal employees of their personal
responsibilities, the President has issued a directive that
requires a number of additional steps to be taken to protect
against unlawful disclosures of classified information. A copy of
the text of that directive, known as National Security Decision
Directive 84, or NSDD-84, is attached as Exhibit B to my
statement. In summary, NSDD 84 provides:
-- additional restrictions upon government employees
who are entrusted with access to classified information,
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-and upon government agencies that originate or handle
classified information;
a more efficient approach to investigating
unauthorized disclosures, including additional use of
polygraph examinations under carefully controlled
circumstances; and
-- mandatory administrative sanctions for employees
found to have knowingly disclosed classified information
with authorization, or who refuse to cooperate with an
investigation.
Implementation of NSDD-84 has required a careful review of
security regulations and practices throughout the government. A
number of changes are being made as a result of this review.
A significant aspect of implementing NSDD-84 has been the
development of two new nondisclosure agreement forms for
government-wide use. One of these forms is a classified
information nondisclosure agreement, which has been promulgated by
the Information Security oversight office as Standard Form
189. */. This form does not include a provision for
48 Fed. Reg. 40, 849 (Sep,. 9, 1983).
prepublication review.
The other form is a nondisclosure agreement to be signed as a
condition of access to Sensitive Compartmented Information, or
SCI. This agreement was promulgated by the Director of Central
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Intelligence on August 30, 1983, as a replacement for Form 4193,
which had been adopted in 1981. Botn,versions of this form
contain provisions for prepublication review, but we believe the
new form will provide the government with an enhanced ability to
safeguard classified information. A copy of the new SCI
nondisclosure agreement is attached as Exhibit C to my statement.
Prepublication review agreements have been used at CIA for a
number of years, and in 1980 the Supreme Court approved their use
in Snepp v. United States. */ The sole purpose of prepublica-
*/ 444 U.S. 507 (1980) (per curiam).
tion review is to permit deletion of classified information before
it is made public. This program does not permit the government to
censor material because it is embarrassing or critical. Earlier
this month, the United States'Court of Appeals for the District of
Columbia Circuit issued an opinion upholding the manner in which
CIA conducted its prepublication review of a former employee's
magazine article. **/
**/ McGehee v. Casey, No. 81-2233 (D.C. Cir., Oct. 4,
1983).
The Department of Justice has determined that the two new
nondisclosure agreements adopted to implement NSDD-84 would be
enforceable in civil litigation initiated by the United States.
The Department has also.issued regulations for its prepublication
review program. Copies of these documents are attached as
Exhibits D.and E to my statement.
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Use of the Polygraph in
Safeguarding National Security Information
NSDD-84 was based upon the recommendations of an interdepart-
mental group convened by the Attorney General. I served as
chairman of this group, which also included representatives
designated by the Secretaries of State, the Treasury, Defense,
Energy, and the Director of Central Intelligence. Copies of the
report of this group, which is unclassified, have been furnished
to the Committee.
Our report found a number of deficiencies in the system by
which the government investigated unauthorized disclosures of
classified information appearing in the media. We concluded that
this system was "so ineffectual as to perpetuate the notion that
the government can do nothing to stop leaks of classified
NSDD-84 includes a number of steps to, streamline the
reporting and investigation of unauthorized disclosures. Among
other things, it clarifies FBI's investigative authority to
include cases in which administrative sanctions may be sought
instead of criminal prosecution.
Our report considered the question of polygraph use and
concluded as follows:
"The polygraph can be a useful tool in leak
investigations under certain circumstances. It should
be used selectively and its results considered within
the context of a complete investigation. The polygraph
should not be used for dragnet-type screening of a large
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.-number of suspects or as a substitute for logical
investigation by conventional means. It is most helpful
when conventional investigative approaches have
identified a small number of individuals, one of whom is
fairly certain to be culpable, but there is no other way
to resolve the case. A polygraph examination in this
situation can be limited to the unauthorized disclosure
that is being investigated and should not include
questions about life style that many employees would
find offensive. Moreover, polygraph results should not
be relied upon to the exclusion of other information
obtained during an investigation."
The provision in NSDD-84 that is based upon the foregoing
recommendation requires government agencies with employees having
access to classified information to revise their regulations as
necessary so that employees could be required to submit to
polygraph examinations, when appropriate, in administrative
investigations of unauthorized disclosures of classified
information. The Directive provides further that:
-- Agency regulations must, as a minimum, permit the agency
to decide that appropriate adverse consequences?will
follow an employee's refusal to cooperate with a
polygraph examination that is limited in scope to the
circumstances of the unauthorized disclosure under
investigation.
-- Agency regulations may provide that o the agency
head, or his delegate, is empowered to order an employee
to submit to a polygraph examination.
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-- --Results of polygraph examinations should not be relied
upon to the exclusion of other information obtained
during investigations.
Government agencies have substantial discretion in deciding
how to implement this aspect of NSDD-84, subject to constitutional
and statutory constraints. The policies of some agencies--
including CIA, NSA, and the Department of Justice--already satisfy
the requirements of NSDD-84. The Office of Personnel Management
has issued a letter clarifying its policies as being consistent
with NSDD-84. The Department of Defense has proposed a
comprehensive revision in its polygraph regulation that would,
among other things, satisfy the requirements of NSDD-84.
Implementing regulations in other agencies are currently being
prepared.
Another way in which the polygraph can be used to prevent
unauthorized disclosures of classified information was not
addressed in NSDD-84 or the study leading up to it. I am referr-
ing to its use in the periodic or aperiodic screening of govern-
ment employees with access to certain kinds of sensitive classi-
fied information to determine whether they have disclosed such
information either to foreign agents or to others not authorized
to receive it.
Our major intelligence agencies--CIA and NSA--currently use
polygraph examinations to screen candidates for employment and
periodically thereafter. The proposed new Department of Defense
regulation would provide for some additional uses of the poly-
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graph. This proposal has caused some controversey, and a rider to
the current authorization act contains a moratorium on any changes
in Department of Defense policy regarding the polygraph until dam
April 15, 1984. The stated purpose of the moratorium contained in
the Defense authorization act was to permit congressional hearings
upon this subject before new policies were implemented in that
Department.
The balance of my statement will address some general ques-
tions regarding the polygraph, with particular emphasis on its use
in connection with federal employment.
Polygraph Accuracy
Although referred to as a "lie detector," the polygraph
itself does not detect lies. The polygraph is an instrument that
measures a variety of physiol'ogical responses of an individual
undergoing questioning. These measurements assist the polygraph
examiner in forming an opinion as to whether the individual has
given truthful or deceptive answers to particular questions.
There are two basic categories of polygraph use:
investigations of misconduct or other specific issues, and
generalized screening. Generalized screening includes
pre-employment testing to verify the accuracy of information
provided in connection with the application for employment.
Screening.-can also be used in the post-employment context, on
either a periodic or aperiodic basis, in an attempt to determine
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continuing compliance with particular standards of conduct or
other conditions of employment or access to information.
Numerous scientific studies have attempted to quantify the
accuracy of polygraph examinations. It is important to recognize
that there are substantial differences in the methodology of these
studies. In addition, there are differences in the skills of
particular polygraph examiners and in the types of inquiries they
are asked to undertake. For these reasons, among others, the
results of the studies have varied considerably.
The overwhelming majority of studies show accuracy rates for
polygraph examinations within the range of 70 to 95 percent. This
is obviously a wide variation, but it reflects an overwhelming
scientific consensus on one point: polygraph examinations produce
statistically significant indications of deception and
nondeception. Or, to put it another way, even the most critical
studies show that polygraph examinations are more likely to be
accurate than not, and most studies show a much greater degree of
accuracy.
Obviously, the distinction between 70 and 95 per cent
accuracy is likely to make a significant difference in the way we
wish to use the polygraph technique. For the reasons that follow,
we believe the relevant accuracy rate is closer to 95 percent than
70 percent'.
First, "field" studies--most of which involve
subjects who are suspected of real crimes--show a higher
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.accuracy rate than laboratory studies. We believe this
indicates greater accuracy of the polygraph in
"real-life" situations, where the subject has a keener
appreciation of the consequences of. deception and is
thus more likely to display physiological symptoms.
-- Second, studies with more highly trained and
experienced examiners show a higher accuracy rate than
those using students or academics. Since government
polygraph examiners generally have a high level of
training and experience, we believe they are likely to
have a high accuracy rate.
-- Third, studies using field polygraph
instruments, which carefully measure three or more
physiological reactions, show a higher accuracy rate
than those using laboratory equipment and more limited
measurements. Government polygraph examinations thus
are likely to have the higher accuracy rates.
It is important to recognize that no one can credibly claim a
100 percent accuracy rate for any of the polygraph techniques.
The possibility of error is always present. Knowing this, all
federal polygraph programs require a second evaluation of every
set of polygraph charts by a senior polygraph examiner, and no
report of deception or truthfulness is made without agreement on
the charts.
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When-the examiner cannot reach a conclusion or the reviewer
disagrees, the result is reported as "inconclusive." This call of
"inconclusive" is a vital aspect of the quality control program,
and reduces the risk that the results of any particular
examination will be erroneous. When possible, additional
examinations are scheduled to resolve the issue. However, there
are always a few people who do not test well and a number of
topics which are not suitable for resolution by polygraph testing.
Thus some inconclusive results are inevitable, as well as
necessary to avoid erroneous calls.
Many experimental studies do not take into account the
possibility of inconclusive results and require an evaluation of
truthfulness or deception in each case. This is yet another
reason that we believe the ac'iual error rate in government-
administered polygraph examinations is considerably lower than
some laboratory studies would suggest.
For purposes of policy analysis, it is important to recognize
that there are two types of possible error in a polygraph
examiner's evaluation.
One type of error is the "false negative;" that is, a
deceptive subject who is found by the examiner to be truthful.
False negatives can be a significant problem if polygraph
examination results are given undue weight or are used to replace
other investigatory techniques that are more reliable. However,
if the polygraph is used as an additional means of investigation,
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and its results taken in the context of all available information,
then the "false negative" problem does not provide a substantial
reason to avoid polygraph use.
The other type of error is the "false positive," in which a
truthful person is found to be deceptive. For the reasons
explained above, we believe that the actual "false positive" rate
in government-administered polygraph examinations is quite small.
Nevertheless, even this small possibility is a basis for serious
concern because we have a deep-seated aversion to any procedure
that produces false incrimination. In deciding what circumstances
warrant polygraph usage in the government, our continuing concern
is to eliminate or at least minimize the possibility that an
individual will be treated unfairly as a result of a "false
positive" polygraph examination.
The fact that polygraph examinations can produce "false
positives" is not--in itself--a sufficient basis to renounce their
use. Virtually all investigative techniques can also produce
false positives. For example, the background investigation" is a
basic screening device for most important government jobs and
security clearances. This investigation includes interviews with
neighbors, associates, landlords, and references. Checks are made
of police, credit bureau and academic records. Obviously, a
certain percentage of these int. rviews or record checks produce
"false positives"--derogatory information that is untrue or
distorted. Yet we continue to use these investigative techniques
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because they generally provide reliable information and we have no
better alternatives.
The same kind of analysis applies to many scientific tests,
such as blood tests, breathanalyzers, voiceprints, fiber analysis,
and urinalysis. The degree of accuracy for,these techniques may
vary, but in each case there is some potential for an erroneous
incriminating result, or "false positive." Yet such tests are
regularly used for a variety of purposes, including evidence to
support criminal prosecution.
One other question relating to polygraph accuracy is the
possibility of countermeasures or attempts to "beat the machine."
The techniques commonly used as countermeasures are known, and a
well trained examiner is capable of detecting their use. Never-
theless, it may be possible for a subject to use undetected
countermeasures, which would lead to a "false negative" result.
This is yet another reason that the polygraph technique should not
be used as a substitute for conventional means of investigation or
its results given undue weight. Yet, as with the case of "false
negatives" generally, it provides no basis for avoiding polygraph
use altogether.
Most studies of polygraph accuracy deal with its use in
investigating particular instances of criminal misconduct (or a
laboratory approximation thereof). However, it would appear that
similar results would obtain in screening situations, at least
where the nature of the inquiry bears upon prior misconduct or
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falsified -information provided in personal history statements,
which would appear to the subject to be equally serious.
The foregoing discussion has related solely to the accuracy
of polygraph examinations for purposes of assessing the
truthfulness. or deception of an individual's response to
particular questions. However, this analysis overlooks two other
ways in which the polygraph technique has substantial utility.
One major benefit of polygraph use is in enhancing the
ability to obtain information from the subject. Experience has
shown that subjects quite often confess, or volunteer additional
information, in connection with a polygraph examination. This
phenomenon may actually produce information that is more useful in
terms of the purpose of the examination than the examiner's
assessment of the subject's physiological responses.
An additional benefit of polygraph use is its deterrent
effect upon certain kinds of misconduct that can be difficult to
detect through other means. Employees who know they are subject
to polygraph examinations may be more likely to refrain from such
misconduct. In addition, use of the polygraph in pre-employment
screening serves to deter applicants who do not meet standards of
suitability for employment.
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Role of the Polygraph Examiner
Notwithstanding the potential accuracy of the polygraph
technique, its reliability in particular cases is largely
dependent upon the ability and integrity of the particular
examiner. The opinion of an incompetent or dishonest polygraph
examiner can be worthless or even deliberately misleading. Any
polygraph program requires careful attention to the examiners who
are used.
In real-life situations, the polygraph examiner knows the
identity of the subject and is generally familiar with the subject
matter of the inquiry. This background assists the examiner in
formulating questions to be used in the examination and in
evaluating the subject's responses, thus increasing the accuracy
and utility of the technique. However, it also affords an
opportunity for the examiner's conscious or subconscious biases to
influence the results of the examination.
In this regard, the polygraph is unlike many investigative
techniques that can be applied anonymously, such as fingerprint
analysis or blood tests. However, it is no different from
interrogation, physical surveillance or other investigative
techniques that require knowledge of the matter under
investigation. Thus the possibility of examiner bias is not a
problem unique to the polygraph.
More importantly, polygraph programs in the federal govern-
ment are conducted pursuant to high standards that assure a
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greater degree of examiner competence and objectivity than is
necessarily prevalent in the private sector.
Polygraph examiners-employed by the federal government are
carefully selected, trained and supervised. Results of
examinations are always reviewed by supervisors as an additional
safeguard. In most federal polygraph programs, current employees
who fail to'pass an examination are permitted a second examination
by a different examiner.
Privacy and the Polygraph
Apart from issues relating to its accuracy, there are also
questions raised as to whether use of the polygraph involves an
unwarranted invasion of personal privacy. Some critics fear that
polygraph examinations will be used to probe the subject's
religious and political beliefs or,attitudes toward labor unions.
Concern is also expressed that employees will be questioned about
personal matters in which the government has no legitimate
interest.
These privacy concerns are important and must be addressed.
Current programs for polygraphing federal applicants or employees
include safeguards to ensure that improper and irrelevant
questioning does not occur. We believe these safeguards are
essential.
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-- First, certain kinds of questioning must be
prohibited in all situations. This prohibition includes
such matters as religious and political beliefs
Arv
protected by'the First Amendment, as well a attitudes
-- Second, questioning about the subject's
personal life must be limited to matters that are
clearly relevant to the purpose of the examination.
-- Third, all questions relevant to the purpose
of the examination must be reviewed in advance with the
subject. This procedure permits the subject to object
if he believes an improper question is to be included in
? the examination.
-- Fourth, technical or control questions, which
are necessary to the conduct of the examination, should
be constructed to avoid embarrassing, degrading-or
unnecessarily intrusive matters.
-- Fifth, sufficient records must be maintained
to permit monitoring and supervision of polygraph
examinations to ensure compliance with these
safeguards.
By observing the foregoing safeguards, we believe that
privacy objections to use of the polygraph are minimized. In this
regard, it is important to recognize that the polygraph technique
is not the only type of investigative technique that could result
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in unwarranted invasions of personal privacy. Conventional
investigative techniques--such as interviews with neighbors,
friends and associates--can be used in an abusive manner. For
privacy purposes, the most important safeguard is a limitation on
the scope of the investigation. Denial of the use of particular
investigative techniques, such as the polygraph, does not address
the real problem of deciding what topics of inquiry constitute an
unwarranted invasion of privacy.
Another privacy-related objection to polygraph use is that
the technique relies upon self-incrimination. Apart from the
legal issue, which is discussed later, the phenomenon of potential
self-incrimination is not a valid basis for objecting to
government use of the polygraph. Most government screening and
investigation is conducted on the basis of information supplied by
the individual. For example, applicants for security clearances
fill out extensive background information forms, which are signed
under threat of criminal penalties for any false statement. The
polygraph examination is simply another way of obtaining, and
verifying, the same kind of information.
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- Legal Issues Regarding the Polygraph
In 1923, the United States Court of Appeals for the District
of Columbia Circuit Held that the polygraph technique was not
sufficiently accepted in the scientific community as to be
admissible evidence in a criminal trial. For many years this
decision, Frye v. United States, 1/ was the leading case on the
1/ 293 F. 1013 (D.C. Cir. 1923).
admissibility of polygraph examination results. However, the
authority of this decision has been undermined in recent years by
increasing scientific documentation of the polygraph technique and
changes in the law of evidence.
All of the scientific studies referred to previously were
performed after 1923, and this body of knowledge was obviously
unavailable to the Frye court. Indeed, a number of courts and
commentators have been favorably impressed with the currently
available scientific documentation of the polygraph technique. 2
2/ See, e.g., United States v. DeBetham, 470 F.2d 1367 (9th /
Cir. 1972) (per curiam), cert. denied, 412 US 907 (1973); United
States v. Wainwright, 413 F.2d 796 (10th Cir. 1969), cert denied,
396 US. 1009.
Some commentators have also expressed the view that the legal
theory of the Frye decision is inconsistent with the new Federal
Rules of Evidence. 3/
3/ See, e.g., 22 C. Wright & K. Graham, Federal Practice and
Procedure
? 5169 (1978).
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There has never been a Supreme Court ruling on the
admissibility of polygraph evidence in federal court. The Courts
of Appeals are divided on the issue. Some adhere to the Frye
decision and have a per se rule of excluding-polygraph evidence. 4/
4/ See, e.g., United States v. Clark, 598 F.2d 994 (5th Cir.
1979).
In a number of other circuits, the decision whether to admit
polygraph evidence is left to the discretion of the trial judge. 5/
5/ See, e.g., United States v. Glover, 596 F.2d 857, 867 (9th
Cir. 1979), cert. denied, 444 U.S. 857; United States v. Kampiles,
609 F.2d 1233, 1244 (7th Cir. 1979), cert. denied, 446 U.S. 954.
The state courts are similarly divided on the question of
admitting polygraph results into evidence. Many states do not
permit polygraph evidence to be admitted for any purpose, but a
number of other states allow polygraph evidence under limited
circumstances. 6/ It is fairly common for polygraph results to be
6/ See State v. Dean, 103 Wis. 2d 228, 307 N.W. 2d 628-, 646
nn. 1-7& 18 (1981) and cases cited therein.
admitted pursuant to a stipulation of the parties. 7/ In at least
7/ See Annot., 53 A.L.R. 3d 1005 (1973 & Supp. 1983), and cases
cited therein.
one state, polygraph evidence is generally admissible on the same
basis as any other scientific evidence. 8/
8/ State v. Dorsey, 88 N.M. 184, 539 P.2d 204 (1975). See
also Commonwealth v. A Juvenile 365 Mass. 421, 313 N.E. 2d 120.
(1974)(court has discretion to admit polygraph evidence).
The Justice Department has traditionally opposed the use of
polygraph'examination results in criminal trials as evidence of
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the guilt-or innocence of the accused. 9/ Use of polygraph
9/
evidence in a criminal trial involves a number of considerations
that do not apply to its use as an investigatory technique. Among
these considerations are the following:
-- First, a guilty subject may be able to use
undetected countermeasures, thus causing the examination
to produce false evidence of innocence. As with other
"false negatives," this problem is of less concern when
the polygraph is used in an investigation and is
cumulative to other investigative techniques.
-- Second, there is a substantial likelihood that a
jury would give undue weight to polygraph examination
results. This phenomenon could ultimately displace the
jury's function in cases where polygraph evidence is
received on the ultimate issue of guilt or innocence. 10/
10/ See, e.g., United States v. Stromberg, 179 F. Supp. 278,
280 (S.D.N.Y. 1959); F.R. Evid 704.
-- Third, attempts to introduce polygraph evidence
could greatly increase the length of criminal trials in
order to accommodate the necessary expert testimony on
each side of the issue.
-- Fourth, polygraph examinations given to defendants
by "friendly" examiners may be more likely to produce
'exonerating results, including false negatives. In this
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situation there is no risk that detection will have
adverse consequences to the subject, since unfavorable
results need never be known to anyone except defense
counsel. Indeed, a defendant could be examined by a
number of polygraphers until he passes a test, and then
seek to use the one favorable examination as evidence of
innocence.
-- Fifth, because of Fifth Amendment considerations,
the prosecution cannot obtain polygraph evidence without
the consent of the accused. The Fifth Amendment may
also prevent use of polygraph results in cases where the
accused chooses not to testify. Therefore, polygraph
evidence is likely to be a one-sided weapon in criminal
trials, available mostly to defendants and not to
prosecutors.
The foregoing concerns apply only to use of polygraph evidence in
a trial, primarily a criminal trial. The same considerations do
not apply to use of the polygraph as an investigatory technique.
The Justice Department has traditionally supported use of the
polygraph as an adjunct to the normal interview and interrogation
process in certain kinds of matters within its investigative
jurisdiction.
". . with proper ethics by the polygraph examiner and
tight administrative control by the user agency, there is no
question but that the polygraph can be a valuable
investigative aid to supplement interrogation in selected
criminal and national security cases. Interrogation is a
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basic tool of any investigative agency and the FBI considers
the polygraph technique a thorough and specialized interview
procedure in which a skillful interrogator is attempting to
simply ascertain the truthful facts from a consenting
individual regarding a matter in which we have jurisdiction.
"In some instances suspects will admit deception and
furnish confession and or signed statements. In most
instances valuable new information or investigative direction
is developed as a result of the examination and followup
interrogation." 11/
11/ The Use of Polygraphs and Similar Devices by Federal
Agencies, Hearings Before the House Committee on Government
Operations, 93d Cong., 2d Sess. (1974), at p. 419.
The fact that polygraph evidence is not admissible in a
criminal trial does not preclude its use as an investigative
technique. 12/ Indeed, an investigative file will typically
12/ See, e.g., People v. Lara, 528 P2d 365, 12 Cal. 3d 903,
117.Cal. Rptr. 549 (1974).
contain a large amount of hearsay and other information that is
not admissible evidence.
Confessions and other evidence obtained as a result of
polygraph examinations are also generally admissible, so long as
the examination is not conducted in a manner that violates the
subject's right to counsel or privilege against compulsory self
incrimination. The Supreme Court has specifically held that
statements made during a polygraph examination can be admissible,
even if the results of the examination are not. 13/
13/ Wyrick v. Fields, 103 S.Ct. 394,396 (1982) (per
curiam).
An important caveat applies to the foregoing discussion of
the law pertaining to admissibility of polygraph evidence in
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court: in every case the examination must be taken voluntarily.
The Supreme Court has indicated that the government cannot require
a criminal suspect to submit to a-polygraph examination. 15/
15/ Schmerber v. California, 384 U.S. 757, 764 (1966) (dictum)
(unlike blood test, polygraph examination elicits testimonial
response); South Dakota v. Neville, 51 U.S.L.W. 4148, 4151 n.12
(Feb. 22, 1983) (dictum).
This limitation is a consequence of the Fifth Amendment's
prohibition of compulsory self-incrimination. A criminal suspect
may not be required to answer questions--with or without the
polygraph.
Outside the criminal context, however, a different rule
applies. A public employee can be required to answer questions or
sign affidavits relating to his fitness to perform public duties.
So long as the information thereby obtained is not be used against
the employee in a criminal proceeding, he can be fired for
refusing to answer questions. 16/ For this reason we believe
16/ See, e.g., Lefkowitz v. Turley, 414 U.S. 70, 84 (1974);
Sanitation Men v. Commissioner, 392 U.S. 280, 285 (1968).
there is no valid Fifth Amendment objection to requiring a
government employee suspected of misconduct to take a polygraph
examination, provided that there is a recognition that the results
cannot be used against the employee in a criminal proceed-
ing. 17/
17/ Memorandum of Larry A. Hammond, Acting Assistant Attorney
General, Office of Legal Counsel, Feb. 22, 1980, at 8-12.
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Not all uses of the polygraph in administrative
investigations of misconduct require that the results be excluded
from evidence in a criminal trial. The basic rule is that
"statements obtained under threat of removal from office" may not
be used in a criminal trial. * / However, the examination is
Garrity v. New Jersey, 385 U.S. 493, 500 (1967).
regarded as involuntary for Fifth Amendment purposes, if the
employee's refusal may be considered for a variety of
purposes--including as an adverse inference in disciplinary
proceedings, or as a basis for reassignment or denial of access to
classified information. * / Only if the employee can be
Lekfowitz v. Cunningham, 431 U.S. , 908 n.5 (1977);
Baxter v. Palmigiano, 425 U.$. 308, (1976); Hoover v. Knight,
678 F.2d 578 (5th Cir. 1982); United States v. Indorato, 628 F.2d
711, 716 (1st Cir.), cert. denied, 449 U.S. 1016 (1980).
discharged or demoted solely for refusal to take a polygraph
examination, are.the results of such examination inadmissible as
evidence in a criminal proceeding.
Where the polygraph is used for screening purposes and not in
an investigation of suspected misconduct, there is ordinarily no
Fifth Amendment problem. In such circumstances, the polygraph
examination is a condition of employment or access to classified
information. The subject's consent to be examined is regarded'as
voluntary in the constitutional sense, just as in providing
answers on`an application for employment or for a security
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clearance. However, care must be taken if an employee reveals
information concerning a federal crime in the course of a
screening examination that is required as a condition of
continuing employment.
Positive authority to use the polygraph in screening for
employment or access to classified information is derived from a
variety of sources. At bottom are the President's
responsibilities under article II of the Constitution as Chief
Executive, Commander-in-Chief, and the principal instrument of
United States foreign policy. In Executive Order 10450, as
amended, the President has assigned to the head-of each department
and agency the responsibility to "insure that the employment and
retention in employment,of any civilian officer or employee within
the department or agency is clearly consistent with the interests
of national security." In Executive Order 12356, the President
required that a person can be eligible for access to classified
information only if a "determination of trustworthiness has been
made by agency heads or designated officials."
In addition to these general authorities, there are specific
provisions in statutes and executive orders that authorize
personnel security measures for intelligence agencies and for the
protection of intelligence sources and methods.
See, e.g., 50 U.S.C. ?? 403(c),(d),(g); 831-33; E.O. 12333,
?? 1.5(g),(h), 1.8(h), 1.12(b)(10).
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Apart from the temporary limitation contained in the current
Department of Defense authorization act, 18/ there is no statute
18/ Pub.L. No. , ? 1218, 98th Cong., 1st Sess.
that expressly limits the power of the federal government to
require employees or prospective employees to submit to polygraph
examinations. Legislation to this effect has been proposed from
time to time but never enacted. 19/
19/ See, e.g., ? 2156, 92d Cong., 1st Sess. (1971); H.Rep. No.
94-795, 94th Cong., 2d Sess. 46 (1976).
In 1968, the Civil Service Commission issued instructions on
polygraph use as a screening device for the competitive service,
which remains in effect today under the authority of the office of
Personnel Management. 20/ These instructions generally prohibit
20/ Federal Personnel Manual, Chapter 736, appendix D.
use of the polygraph to screen applicants for and appointees to
the competitive service. However, agencies with a highly.
sensitive intelligence or counterintelligence mission directly
affecting the national security, are permitted to use the
polygraph for personnel screening after complying with certain
standards set forth in the instructions. The OPM instructions do
not apply to use of the polygraph in investigations of suspected
misconduct by agency employees, including unauthorized disclosures
of classified information. 21/
21/ FMP Letter , (Oct. , 1983)
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General standards of conduct for federal employees permit
discharge or discipline for refusal to cooperate with
investigations of suspected misconduct. 22/ This authority also
22/ See e.g., 5 C.F.R. 735.201 a(c), 735.201' a(f),
735.209.
supports requiring government employees to submit to polygraph
examinations in appropriate circumstances. 23/ As noted above,
23/ See Memorandum of Larry A. Hammond, supra note , at
exercise of this authority can cause the results of the
examination to be inadmissible in criminal proceedings.
In our view, an employee who refuses an order to take a
polygraph examination in an appropriate case may be subject to a
range of administrative sanctions to include removal, as well as
lesser forms of discipline, such as a letter of reprimand or
suspension without pay. The appropriateness of any sanction for
refusal to comply with an order to take a polygraph examination
would obviously depend upon the circumstaances of the case,
including the reason given by the employee for refusing the
order.
We are not aware of any litigtion in which an employee has
challenged the power of a federal agency to require a polygraph
examination in connection with an administrative investigation.of
suspected misconduct. There have been a number of cases in state
courts onithis issue, many dealing with policemen suspected of
misconduct. Most courts to consider the issue have upheld the
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authority of a governmental agency to discharge an employee who
refused to submit to a polygraph examination. 24/
24/ See, e.g. Seattle Police Officers Guild v. City of
Seattle, 494 P.2d 485 (Wash. 1972) (permitting discharge); Farmer
v. City of Fort Lauderdale, 427 So.2d 187 (Fla. 1983) (not
permitting discharge); Annot., 15 A.L.R. 4th 1207 (1982), and
cases cited therein. See also Gulden v. McCorkle, 680 F.2d 1070
(5th Cir. 1982), cert. denied, 103 S.Ct. 1194 (1983) (permitting
discharge).
The Merit Systems Protection Board has held that polygraph
examination results can be admitted into evidence in
administrative proceedings to determine whether a federal agency
has cause to discharge an employee, provided that a proper
foundation is laid. 25/ However, the Board has also held that
25/ Meier v. Department of the Interior, 3 MSPB 341, 344-46
(1980). See also Flores v. Department of Labor, 82 FMSR 1 5407
(Sep. 13, 1982).
it would not draw an adverse inference of guilt from an accused
employee's refusal to volunteer for a polygraph examination. 25a/
25a/ Meier v. Department of the Interior, 3 MSPB 341, 344
(1980).
But cf. South Dakota v. Neville, 51 U.S.L.W. 4148 (Feb. 22,
1983)
(refusal to take mandatory blood alcohol test is admissible
evidence in criminal trial).
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Administration Policy on Polygraph Use
This Administration is opposed to indiscriminate use of the
polygraph by the federal government. Many employees and potential
employees view the prospect of polygraph examinations as offensive
and unwelcome. In a small but cognizable percentage of cases,
polygraph examination results are inaccurate. For these reasons,
we do not believe the polygraph should be used as a screening
device for government employment generally or as a routine
technique for conducting investigations.
However, there are certain situations where the disadvantages
of the polygraph are outweighed by specific and significant
governmental interests that are served by the use of this tech-
nique. Particularly in the area of national security, we have for
many years recognized that polygraph examinations have a proper
role.
Specifically, it is the position of this Administration that
the polygraph examinations can be properly and lawfully given to
federal employees or applicants in the following situations:
-- first, as a condition of employment
with or assignment to CIA and NSA, and for
positions in other agencies that entail
equally sensitive responsibilities directly
.affecting national security;
-- second, as a condition of access to
highly sensitive categories of classified
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-information which are likely to be of
extraordinary interest to hostile
intelligence.services;
-- third, to investigate serious criminal cases,
where the employee voluntarily consents to
the examination after an opportunity to
consult with counsel; and
-- fourth, to investigate serious administrative
misconduct cases under limited circumstances.
The following summary of Administration policy is not
intended to suggest that the polygraph must be used in any
particular situation. Decisions on the extent of polygraph use
should be made by the head of the employing agency, taking into
consideration a variety of circumstances. By outlining situations
where the polygraph may be appropriately used, however, I do mean
to state that this Administration opposes any other use of the
polygraph for federal employees or applicants within the United
States. I have not attempted to address the use of polygraph
examinations in other contexts, such as for contractors, foreign
nationals, informants, or non-employee criminal suspects.
(1) As a Condition of Employment
Certain jobs are so sensitive that the federal
government should leave no stone unturned in assuring that only
trustworthy candidates are hired. Even if use of the polygraph
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may unfairly screen out some candidates who are actually
qualified, we view it as more important to avoid hiring candidates
who-may pose a risk to national security. One noted polygraph
critic has conceded:
"There is evidence that the polygraph lie test
does better at detecting liars than it does in
identifying the truthful. This is an important
reason for advocating banning of polygraph testing
of employees or job applicants in the private
sector. However, for special high security
situations, where it is clearly more important
to screen out undesirable applicants than to give
a fair employment opportunity to all applicants,
then this bias against the truthful subject may
not be regarded as such an important defect." 25/
25/ Statement of David T. Lykken, Hearings before the
Subcommittee on Oversight of the Permanent Select Committee of
Intelligence, p. 164.
This analysis supports the longstanding practice of our
largest intelligence agencies -- CIA and NSA -- in using polygraph
examinations as part of their overall program of screening
candidates for employment or assignment. To the extent some
examination results are "false positives," we regard this inequity
as outweighed by the importance of assuring the suitability of
individuals who are hired at these agencies.
A major by-product of this process is that applicants will
volunteer additional useful information in connection with the
polygraph examination. 26/ This additional information will
26/ Even critics recognize the utility of this aspect of using
polygraph examiations in pre-employment screening. See Lykken,
supra notes 25.
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necessarily improve the overall effectiveness of the employment
screening process. Indeed, CIA and NSA have found that the great
majority of their decisions not to employ individuals because of
security concerns are derived from information obtained in
connection with the polygraph examinations. 27/ Without the
27/ [cite]
polygraph, most of these individuals would have been hired.
Indeed, use of the polygraph probably deters many unsuitable
candidates from applying in the first place.
However, CIA and NSA do not have a monopoly on sensitive jobs
affecting national security. Therefore, we believe that the
polygraph could also be properly used by other agencies to screen
candidates for employment or assignment to jobs that are equally
sensitive as those at CIA and NSA. This is a decision that must
be made by the agency head, taking into account the overall
security needs of the agency or component in question. Use of
the polygraph to screen candidates for employment in the
competitive service should also be consistent with the 1968 Civil
Service Commission instructions contained in Appendix D to Chapter
736 of the Federal Personnel Manual.
It is important that use of the polygraph in pre-employment
screening not be permitted to substitute for other measures such
as the background investigation. In addition, polygraph
examination results should not be given undue-weight, but
considered in the context of all available information. These
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conditions diminish the risk associated with "false ,
The pOlYgraPh examin ~ negative^
additional s er s conclusion
safeguard to n simply provides an
otherwise ensure the
provided b accuracy of information
by the applicant or obtained
investigation.
through background
Use
of the polygraph as a screening ng device for
number of highly sensitive this small
a choice Of jobs is fair to
whether or the applicant
not to 01 who has
applicants that Pot apply. CIA and
Ygraph exam' NSA advise
hired and .tnations
retained are a condition of
should be in such jobs. being
given We believe similar warnings
condition of for all jobs where Polygraph
object to of employment or assignment. Po examinations are a
g polygra
these jobs, in Phed can avoid its u Potential yees who
In practice use by not emplo
only a minute fract
foreclosed to such
persons ion, of government
Agencies that use polygraph e
screeni xamitiO
ng' also use such examinations from time-to-
emplOyment examinations time thereafter.
that employees Ployees continue are part of an
to effort to ensure
access to classified meet standards for
ssified information, employment and
assignment Applicants
to these a for employment or
gencies are advised that examinations will be hat submittin
g to such
employment If a condition of continuing
such notice is
believe provided in advance
use then we
these of the polygraph for Post-emPlo
agencies is equall Yment screening by
screening. its
use for pre-employment
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Of course, current employees have a greater stake in keeping
their jobs than applicants have in obtaining them in the first
place. For this reason,.CIA and.NSA take great care to assure
accuracy in evaluating examinations of current employees. It is
extremely rare for an employee to be discharged solely on the
basis of the polygraph examiner's assessment of deception.
However, this possible outcome is justified by the national
interest in assuring the reliability of individuals in these
jobs.
(2) As a Condition of Access to Information
The preceding category concerned polygraph examinations
given as a condition of employment in certain sensitive jobs, with
the scope of the examination potentially covering any matter that
is legitimately related to eligibility for that employment. In
contrast, this second category concerns polygraph examinations
given as a condition of access to certain categories of highly
sensitive classified information that is of extraordinary interest
to hostile intelligence services. Such examinations would be
limited in scope to "counterintelligence-type" questions.
Included among these categories is information concerning
certain intelligence sources and methods, as well as
communications security or cryptographic techniques and highly
advanced research and development programs.
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Executive Order 12356, ?4.2, authorizes certain agency heads
to create Special Access Programs to control access, distribution,
and protection of such information.
While we do not believe that all persons who are given access
to Special Access Program information need be polygraphed as a
condition of their access, there may be certain Special Access
Programs, or elements of such programs, that require the
extraordinary precaution of a polygraph examination in the
interests of protecting the national security. In these
situations, we believe it would be appropriate for agency heads to
require a counterintelligence-type polygraph examination as a
condition of granting or continuing access to classified
information within the Special Access Program concerned. The
criterion for designating programs for this purpose would be a
finding that the information is likely to be of extraordinary
interest to hostile intelligence services and its continued
proteciton is critical to U.S. national security interests.
Polygraph examinations administered for this purpose would
be limited to determining whether the employee is acting on behalf
of a foreign power or has otherwise improperly safeguarded
classified information. Questions about the employee's lifestyle
would not be permitted. A listing of the kinds of questions that
would be asked under this program is continued in Appendix B to
the proposed Department of Defense polygraph program regulation.
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Such examinations, given for the purpose of determining
continuing access, need not be given to all covered' employees but
could instead be given on an aperiodic basis to randomly-selected
employees within the designated programs.
Additional safeguards in this program would include the
following:
-- No adverse personnel action could be taken
solely on the basis of a polygraph examiner's
assessment of deception.
-- The only consequence of refusal to take a
polygraph examination for this purpose would
be denial of access to classified information
in Special Access Programs.
We believe there is ampl7a justification for such limited use
of the polygraph as a condition of initial or continuing access to
designated Special Access Programs. Under these circumstances,
the polygraph examinations would be narrowly targeted at the
specific dangers that justified the establishment of the Special
Access Programs in the first place. The consequences of an
employee's refusal to be examined for this purpose would be
limited to a denial of access to particularly sensitive classified
information.
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Some transitional arrangements should be made if polygraph
examinations are to. be required of employees with current access
to information in designated Special Access Programs. Most of
these employees were not hired for or assigned to their current
positions with an understanding that polygraph examinations would
be a condition of employment or assignment. We believe that such
employees who object to being polygraphed should be transferred or
reassigned to other government jobs with no loss in grade or pay.
(Of course, this guarantee would not preclude removal or demotion
for reasons other than the refusal to be polygraphed.)
In the future, no government employee would be involuntarily
assigned to a job requiring access to information for which the
polygraph is a condition of access, unless this requirement was
made known at the time the individual entered into employment.
(3) Criminal Investigations
Polygraph examinations of federal employees should
continue to be used in criminal investigations on the same terms
as in the past. That is, the agency with criminal investigative
jurisdiction may ask the employee to consent to an examination
after an opportunity to consult with legal counsel. Use of the
polygraph technique should be limited to the small portion of
cases where it can make an appropriate contribution. An example
would be a situation where there is a direct conflict of
credibility among a small number of suspects and there is no other
means to resolve the case.
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Use of the polygraph for criminal investigative purposes
cannot violate the employee's Fifth Amendment privilege against
compulsory self-incrimination. Therefore, an employee's refusal
to consent to a polygraph examination for these purposes cannot
form the basis of an adverse personnel action that would result in
loss of employment or any other substantial economic deprivation.
(4) In Administrative Investigations
The polygraph may be used in administrative
investigations of suspected misconduct on the same consensual
basis as it is used in criminal investigations, as described
above. However, the Fifth Amendment does not prevent an agency
from requiring an employee to submit to a polygraph examination
related to his fitness for continuing employment. In situations
where there is no apparent violation of criminal law or where the
agency with criminal prosecutive authority has decided for other
reasons that no prosecution will be undertaken, an employee can
be required to submit to a polygraph examination in an appropriate
case and disciplined or discharged for refusal.
The extent to which employees will be requested or required
to submit to polygraph examinations in such administrative
investigations is a matter for the sound discretion of the agency
head. The decision should be made on the basis of the facts and
circumstances of each case. However, the following minimum
criteria should be met in each case:
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The suspected misconduct must be a serious
offense affecting national security or the
integrity of the employee's official
conduct.
Other means of investigation must have
produced a substantial objective basis for
seeking to examine the employee.
There must be no other reasonable means of
resolving the matter.
Of course, examinations given for this purpose should be
limited to the circumstances of the suspected misconduct and thus
would not include irrelevant questions about the employee's
personal life or other matters. The results of the polygraph
examination cannot be conclusive of the matter under investigation
but instead should be considered in-the context of all other
available information.
An employee who is. requested to take a polygraph examination
in an administrative investigation of suspected misconduct should
be advised of the potential consequences of refusal. For most
federal employees, refusal of a request to be examined for such
purposes should not be considered as evidence to support an
adverse personnel action based upon a conclusion that the employee
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is guilty--of the suspected misconduct. However, agency heads may
draw an adverse inference of culpability in this situation for
political appointees-and other members of the excepted service.
In this regard, it should be noted that the following are not
considerd to be adverse personnel actions requiring specific
evidence of misconduct:
-- denial of access to classified
information generally, or to particular
categories;
-- transfer or reassignment to another job
at the same grade and pay; or
-- denial of requests for promotion,
transfer, or reassignment.
An employee's refusal of a request to be polygraphed in an
investigation of suspected misconduct may be taken into account in
any of the foregoing determinations. However, such refusal should
not be conclusive of any of these determinations.
In certain cases, agency heads or their delegates may also
order--not simply request--an employee to take a polygraph
examination in connection with an administrative investigation of
misconduct. Refusal of such an order can itself form the basis
for administrative sanctions without requiring any assessment of
culpability for the misconduct being investigated. In such
situations, the employee is discharged or disciplined for
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insubordination or impeding the conduct of an official
investigation.
The power to order an employee to submit- to a polygraph
examination in this situation should be used only in rare cases
where polygraph examinations are not understood to be a condition
of employment. A major concern in this regard is that information
acquired in a polygraph examination to which an employee suspected
of criminal misconduct is ordered to submit, and the fruits of
that information, cannot be used as evidence in a criminal
prosecution. Thus, the order to be examined is tantamount to a
grant of "use" immunity, which should only be made in consultation
with the appropriate criminal prosecutive authority.
In general, we believe the power to order a polygraph
examination under these circumstances, and to discharge employees
for refusal, should be limited to the following:
-- employees of CIA, NSA, and others who are
advised that polygraph examinations are a
condition of employment;
-- political appointees;
-- other members of the excepted service.
This authority would not extend to members of the competitive
service, or.the uniformed services.
We believe that the foregoing policy on use of the polygraph
in administrative investigations reflects a reasonable balancing
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of competing interests. Use of the polygraph is limited to a
small number of cases where the government's interest in resolving
the matter outweighs the disadvantages of using the technique.
The risk of a "false positive" result would be minimized, because
the examination result alone could not form the basis for any
adverse action. For most federal employees, the consequences of
refusing to be examined are limited so as not to involve loss of
employment or demotion.
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