HOUSE JUDICIARY SUBCOMMITTEE HEARING ON DOD POLYGRAPH POLICY CHANGE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000300350025-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 21, 2016
• Document Release Date: October 24, 2008
• Sequence Number: 25
• Publication Date: December 10, 1982
• Content Type: MEMO

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10 December 1982
OGC 82-10968
Legislation Division/OGC
SUBJECT: House Judiciary Subcommittee Hearing
on DOD Polygraph Policy Change
On 9 December 1982, I attended a hearing held by the
House Judiciary Committee's Subcommittee on Civil and
Constitutional Rights. The hearing was on the changes which
the Department of Defense (DOD) proposes to make in its
policies/regulations regarding the use of polygraph examinations
in security investigations.
Appearing on behalf of DOD were Retired General Stilwell,
Deputy Under Secretary of Defense for Policy, and the DOD's
General Counsel, Robert Taft. Attached is a copy of the
prepared statement of General Stilwell.
In summarizing his statement, General Stilwell made a
number of points. First, under the proposed changes, there
will continue to be no "lifestyle" questions on DOD paragraphs:
the scope of the examination will be limited strictly to
"counterintelligence" matters. The groups of personnel to
be tested will be expanded to include military personnel to
be assigned to duty at the National Security Agency.
Repolygraphs will be done in the discretion of the DOD
component involved. Finally, polygraphs will be used
for interim access while awaiting the completion of a
background investigation.
There will be no change in the requirement that submission
to a polygraph examination is voluntary. There will be no
change in the requirement that the polygraph is to be viewed
as supplementary to a field investigation. There will be no
change in the policy that polygraph results cannot provide
the sole basis for disciplinary action. Finally, there will
be no change in the strictures governing the dissemination
of polygraph information. General Stilwell noted that DOD
may, however, deny access to certain sensitive intelligence
information to persons refusing to take a polygraph examination.
He also noted that DOD has only 100 polygraph operators to
cover the entire Department.
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DOD made it clear that the changes were only proposed
and that suggestions from everyone, including the Subcommittee,
were welcomed.
It was pointed out by DOD that some of the changes were
the result of suggestions made by the Agency about the need
to protect sensitive intelligence information. Other than
this, there was no mention of the Agency or its polygraph
policy.
The DOD presentation was generally well received.
There were only a few pointed questions and those were well
handled. The presentation seemed to defuse the issue from
the way in which it had been initially reported in the
press.
The Subcommittee then heard from an academician who
was opposed to the proposed changes.
On 14 December 1982, the same witnesses are scheduled
to appear on the same topic before the Senate Governmental
Affairs Committee's Subcommittee on Civil Service and General
Services. I plan to attend this- of ing ,also
cc: General Counsel
C/OGC/ALD
D/O S
Distribution:
Original - LED File: Polygraph
1 -[::]Signer
1 - OGC Signer
STAT
STAT
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STATEMENT OF GENERAL RICHARD 6, ST I LWELL, USA (RET.)
DEPUTY UNDER SECRETARY OF DEFENSE FOR POLICY
BEFORE
THE SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS
? COMMITTEE ON THE JUDICIARY
U,S, HOUSE OF REPRESENTATIVES
DECEMBER 9, 1982
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riR, CHAIRMAN, I APPRECIATE THIS OPPORTUNITY TO APPEAR
BEFORE THE SUBCOMMITTEE TO CLARIFY THE NATURE AND STATUS OF
THE PROPOSED CH NGE 710 THE DEPARTMENT ' S POLICY REGARDING USE
OF THE POLYGRAPH. THE PRESS ACCOUNTS OF THIS MATTER DID
ACCURATELY REPORT THAT CHANGE IS CONTEMPLATED, BEYOND
CONVEYING THIS BASIC FACT, HOWEVER, THE COVERAGE HAS BEEN
BOTH INACCURATE AND INCOMPLETE, PRESS ACCOUNTS TO THE
CONTRARY NOTWITHSTANDING, THIS PROPOSED CHANGE DOES NOT
SIGNAL WIDESPREAD USE OF THE. POLYGRAPH WITHIN DEFENSE, NOR
WOULD IT ENTAIL UNWARRANTED INTRUSION UPON THE PRIVACY OF
OUR PERSONNEL, CONTRARY TO PRESS REPORTS, NO DEFENSE DEPARTMENT
EMPLOYEE HAS BEEN ASKED TO WAIVE HIS RIGHT TO REFUSE THE
POLYGRAPH, NOR ;MOULD SUCH A REQUEST BE PERMITTED UNDER
EITHER THE EXISTING OR THE PROPOSED POLICY.
DESPITE WHAT HAS BEEN IN THE PRESS, IT IS NOT DESIRE TO
CLAMP DOWN ON "LEAKERS" THAT MOTIVATED THE PROPOSALS BUT
RATHER QUALITATIVE IMPROVEMENT IN OUR PERSONNEL SECURITY
PROGRAM, THE NEW POLICY WOULD, IN OUR CONSIDERED ESTIMATE,
PROVIDE GREATER ASSURANCE THAN WE PRESENTLY HAVE THAT THOSE
EMPLOYEES HAVING ACCESS TO THE MOST SENSITIVE INFORMATION
HELD BY THE DEPARTMENT ARE NOT SPYING FOR A HOSTILE GOVERNMENT,
i WOULD ALSO EMPHASIZE, MR, CHAIRMAN, THAT ALTHOUGH PORTRAYED
IN THE PRESS AS THE HANDIWORK OF A MISGUIDED MINORITY, THE
CHANGES UNDER CONSIDERATION IN FACT STEMMED FROM THE DELIBERATIONS
CF A VERY SENIOR GROUP OF DEFENSE OFFICIALS WHO = EV i E1'+'ED OUR
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PERSONNEL SECURITY PROGRAM LAST WINTER AND FOUND IT IN NEED
GF CONSIDERABLE REPAIR, THE RECOMMENDATIONS OF THIS PANEL
WHICH PERTAINED TO USE OF THE POLYGRAPH WERE INCORPORATED
INTO A PROPOSED POLICY CHANGE THAT WAS CIRCULATED TO ALL
MAJOQCOMPONENTS OF THE DEPARTMENT OF DEFENSE LAST .JUNE. IT
HAS SINCE BEEN AGREED TO BY EACH OF THE MILITARY DEPARTMENTS
AND DEFENSE AGENCIES, IT IS UNCLASSIFIED. TT HAS BEEN
FREELY DISCUSSED WITHIN DEFENSE FOR THE LAST SIX MONTHS.
THERE IS NOTHING MYSTERIOUS ABOUT IT.
INDEED, MR. CHAIRMAN, EVEN BEFORE THE STORIES IN 'THE NEWSPAPER,
WE HAD DECIDED ON OUR OWN TO PUBLISH THE PROPOSAL IN THE
FEDERAL REGISTER SO THAT INDIVIDUAL DEFENSE EMPLOYEES AND
CONTRACTORS, AS WELL AS INTERESTED MEMBERS OF THE PUBLIC,
COULD BE AWARE OF THE CHANGES BEING PROPOSED, AND BE ABLE TO
COMMENT UPON THEM, IF THEY CHOSE TO DO SO1
WE STILL STAND READY TO DO THIS, BUT, IN DEFERENCE TO THE
SUBCOMMITTEE, HAVE DELAYED SUCH ACTION PENDING THESE HEARINGS.
SUFFICE IT TO SAY, HOWEVER, THAT WE ARE STILL OPEN TO SUGGESTIONS,
AND WOULD WELCOME THEM FROM THIS SUBCOMMITTEE, AS WELL AS
ANY OTHERS WHO ARE INTERESTED.
BEFORE COVERING THE BASIC FEATURES OF THE PROPOSED POLICY,
LET ME BE MORE SPECIFIC ABOUT ITS DEVELOPMENT, IN.THE FALL
OF 1981, I CONVENED A SPECIAL PANEL OF SENIOR DEFENSE OFFICIALS,
CHAIRED BY DAVID 0. COOKE, DEPUTY ASSISTANT SECRETARY OF
DEFENS~ =(R :M?'~i~ r AT TON, HE PANEL NCLUDED THE DIRECTOR
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OF THE ARMY STAFF, THE GENERAL COUNSEL OF THE NAVY, THE
ASSISTANT SECRETARY OF THE AIR FORCE FOR LOGISTICS, THE
DEPUTY DIRECTOR OF THE NATIONAL SECURITY AGENCY, AND THE
CHIEF OF STAFF. OF THE DEFENSE INTELLIGENCE AGENCY. THE
PANEL'S CHARGE WAS TO REVIEW THE PERSONNEL SECURITY PROGRAM
OF THE DEPARTMENT FROM TOP TO BOTTOM, AND IT DID JUST THAT,
PRODUCING A REPORT CALLING FOR MANY NEEDED IMPROVEMENTS IN
THE PERSONNEL SECURITY AREA, AMONG THE PANEL'S WIDE-RANGING
RECOMMENDATIONS WAS A LIMITED EXPANSION OF THE USE OF THE
POLYGRAPH SPECIFICALLY TO SCREEN EMPLOYEES WHO WERE TO BE
GIVEN ACCESS TO EXTREMELY SENSITIVE INFORMATION. A COPY OF
THE PANEL'S REPORT HAS BEEN PROVIDED THE SUBCOMMITTEE SO I
WILL NOT FURTHER ELABORATE ON ITS RECOMMENDATIONS. SUFFICE
IT TO SAY, HOWEVER, THE PANELS RECOMMENDATIONS WITH RESPECT
TO THE POLYGRAPH ARE, FOR THE MOST PART, REFLECTED IN THE
REVISION OF THE DEPARTMENT'S POLYGRAPH POLICY NOW UNDER
DISCUSSION.
IT IS PERTINENT, MR. CHAIRMAN, THAT DEFENSE HAS FOR MANY
YEARS BEEN ENCOURAGED BY SUCCESSIVE DIRECTORS OF CENTRAL
INTELLIGENCE TO EXPAND THE USE OF THE POLYGRAPH TO COVER
EMPLOYEES OF DEFENSE INTELLIGENCE COMPONENTS WITH ACCESS TO
SENSITIVE CIA INFORMATION. SIMILAR ENCOURAGEMENT HAS REPEADTEDLY
COME FROM MEMBERS OF BOTH THE HOUSE AND SENATE INTELLIGENCE
COMMITTEES.
As YOU HAVE NOTED, BOTH THE EXISTING AND NEW POLYGRAPH
DIRECTIVES ARE LONG AND COMPLEX. RATHER THAN ATTEMPT TO
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TREAT ALL OF THEIR PROVISIONS IN DETAIL, ! BELIEVE IT WOULD
BE THE MOST USEFUL FOR PURPOSES OF THE SUBCOMMITTEE'S UNDERSTANDING
IF I HIGHLIGHTED THOSE CHANGES IN THE PROPOSED DIRECTIVE
THAT WOULD PERMIT OR REQUIRE USE OF THE POLYGRAPH IN CIRCUMSTANCES
WHERE IT IS NOT NOW PERMITTED OR REQUIRED. IF THERE ARE
QUESTIONS CONCERNING USE OF THE POLYGRAPH UNDER EXISTING
POLICY, I WILL BE GLAD TO ADDRESS THEM AFTER MY STATEMENT,
FIRST, THE PROPOSED POLICY WOULD PERMIT DEFENSE COMPONENTS
TO USE, SHOULD THEY SEE FIT, A LIMITED POLYGRAPH EXAMINATION --
CONFINED SOLELY TO SECURITY QUESTIONS RATHER THAN MATTERS OF
LIFE-STYLE -- AS A CONDITION OF PROVIDING ACCESS TO COMPARTMENTED
OR SPECIAL ACCESS PROGRAMS, OR ACCESS TO CRYPTOGRAPHIC
INFORMATION OR MATERIALS, THIS TYPE OF POLYGRAPH EXAMINATION
WOULD BE LIMITED TO QUESTIONS. SUCH AS WHETHER THE PERSON
INVOLVED HAS EVER ENGAGED IN ESPIONAGE OR SABOTAGE AGAINST
THE UNITED STATES, OR HAS KNOWN OF ANYONE WHO MAY BE ENGAGED
IN SUCH ACTIVITIES. QUESTIONS PERTAINING TO THE SUBJECT'S
"LIFE-STYLE" -- WHICH MIGHT COVER AREAS SUCH AS HIS ORGANIZATIONAL
AFFILIATIONS, SEXUAL PREFERENCES, USE OF ALCOHOL OR DRUGS,
WORK HABITS, OR CREDIT STATUS -- WILL NOT BE PERMITTED UNDER
THIS OR ANY OTHER PROVISION BEING CONTEMPLATED AS PART OF
THE NEW POLICY.
SECOND, THE PROPOSED DIRECTIVE WOULD REQUIRE USE OF THE SAME
TYPE'OF LIMITED POLYGRAPH EXAMINATION -- AGAIN, NOT INVOLVING
MATTERS OF LIFE-STYLE -- FOR MILITARY PERSONNEL ASSIGNED TO
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NSA AND FOR EMPLOYEES IN DIA GOING INTO POSITIONS DESIGNATED
BY-THE DIRECTOR OF THAT AGENCY AS CRITICAL INTELLIGENCE
POSITIONS, THIS, TOO, REPRESENTS AN EXPANDED, ALBEIT LIMITED,
USE OF THE POLYGRAPH WITHIN THESE. TWO INTELLIGENCE AGENCIES,
As YOU KNOW, MR. CHAIRMAN, THE NATIONAL SECURITY AGENCY HAS
POLYGRAPHED ITS CIVILIAN APPLICANTS FOR EMPLOYMENT FOR MANY
YEARS.
THIRD, THE PROPOSED DIRECTIVE PROVIDES THAT INCUMBENT EMPLOYEES
WITH SPECIAL INTELLIGENCE CLEARANCES SHALL BE SUBJECT TO A
LIMITED COUNTERINTELLIGENCE-SCOPE POLYGRAPH AS A CONDITION
OF THEIR CONTINUED ACCESS TO SPECIAL INTELLIGENCE, THE
IMPLEMENTATION OF THIS PROVISION IS LEFT TO THE DISCRETION
OF DEFENSE COMPONENTS, SINCE THEIR CAPABILITY TO CONDUCT
EXAMINATIONS FOR THIS PURPOSE IS AT PRESENT EXTREMELY LIMITED
DUE TO A LACK OF QUALIFIED EXAMINERS, IT IS EXPECTED THAT
SUCH EXAMINATIONS WILL BE ADMINISTERED AT RANDOM ON A VERY
SMALL-SCALE, THE VALUE OF THE POLICY IS IN ITS DETERRENCE,
WHATEVER THE SCALE ON WHICH IT IS IMPLEMENTED. I MIGHT ADD
THAT IN THIS CASE THE CHANGE TO THE EXISTING DIRECTIVE
REFLECTS A DECISION MADE BY DEPUTY SECRETARY CARLUCCI
LAST AUGUST, A COPY OF WHICH HAS ALREADY BEEN PROVIDED THE
SUBCOMMITTEE,
FINALLY, THE PROPOSED DIRECTIVE WOULD PERMIT THE USE OF A
COUNTERINTELLIGENCE SCOPE POLYGRAPH EXAMINATION BY INTELLIGENCE
AGENCIES TO PERMIT THEM TC PROVIDE INTE,'.M ACCESS TO SENSITIVE
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INFORMATION BY NEW EMPLOYEES WHOSE SKILLS ARE CRITICALLY
NEEDED BY THE AGENCY INVOLVED, WITHOUT HAVING TO WAIT FOR
THE BACKGROUND INVESTIGATION TO BE COMPLETED. USE OF THE
POLYGRAPH FOR THIS PURPOSE IS NOT PERMITTED UNDER THE EXISTING
DIRECTIVE, UNDER THE NEW PROPOSAL, IT COULD BE USED BUT
ONLY IF THE NEW EMPLOYEE SO AGREED.
HAVING HIGHLIGHTED WHAT THE PROPOSED POLICY REVISIONS WOULD
PERMIT THAT IS NOT PERMITTED NOW, LET ME SPEND A FEW MINUTES
HIGHLIGHTING WHAT THEY WOULD NOT AUTHORIZE:
FIRST, THERE WOULD BE UL, REPEAT NOj CHANGE TO THE
POLICY THAT ALL POLYGRAPH EXAMINATIONS MUST BE VOLUNTARY AND
ARE GIVEN ONLY AFTER THE SUBJECT HAS BEEN ADVISED OF HIS
RIGHTS AND GIVEN AN OPPORTUNITY TO CONSULT LEGAL COUNSEL IF
HE SO CHOOSES,
SECOND, POLYGRAPH EXAMINATIONS WILL CONTINUE TO BE
CONSIDERED AS SUPPLEMENTARY TO, AND NOT A SUBSTITUTE FOR,
OTHER INVESTIGATION THAT MAY BE REQUIRED UNDER THE CIRCUMSTANCES.
NO ACTION AFFECTING AN EMPLOYEE WILL BE PERMITTED SOLELY ON
THE BASIS OF AN ANALYSIS OF POLYGRAPH CHARTS. (THIS IS AN
IMPLICIT RECOGNITION ON OUR PART THAT WHATEVER ITS DEMONSTRATED
RELIABILITY, THE POLYGRAPH CAN BE WRONG, AND THEREFORE
CANNOT ALONE PROVIDE THE BASIS FOR ACTIONS ADVERSE TO OUR
EMPLOYEES.)
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THIRD, ALL OF THE SAFEGUARDS AND LIMITATIONS UPON THE
CONDUCT OF POLYGRAPH EXAMINATIONS AND THE CONTROLS UPON THE
USE OF INFORMATION OBTAINED IN THE COURSE OF SUCH EXAMINATIONS
THAT EXIST UNDER THE OLD DIRECTIVE WOULD BE PRESERVED UNDER
THE NEW ONE,
FINALLY, WITH THE EXCEPTION OF PERSONS EMPLOYED OR
SEEKING EMPLOYMENT IN POSITIONS REQUIRING ACCESS TO EXTREMELY
SENSITIVE CLASSIFIED INFORMATION, NO ADVERSE ACTION MAY BE
TAKEN AGAINST ANY PERSON FOR REFUSING TO TAKE A POLYGRAPH
EXAMINATION, WHERE A COUNTERINTELLIGENCE SCOPE POLYGRAPH
EXAMINATION HAS BEEN ESTABLISHED AS A CONDITION OF ACCESS TO
EXTREMELY SENSITIVE CLASSIFIED INFORMATION, THE NEW POLICY
WOULD PERMIT Tf'E DCD COMPONENT THAT HAD ESTABLISHED THE
REQUIREMENT,, AFTER "DUE CONSIDERATION", TO DENY A CLEARANCE
OR ACCESS FOR REFUSAL TO TAKE THE EXAMINATION, THE DETERMINATION
AS TO WHETHER SUCH ACTION SHOULD FOLLOW A REFUSAL IS LEFT TO
THE DISCRETION OF COMPONENTS BASED UPON THEIR CONSIDERATION
OF ALL FACTORS RELEVANT UNDER THE CIRCUMSTANCES: THE INDIVIDUAL'S
REASONS FOR REFUSING TO TAKE THE LIMITED EXAMINATION; HIS
RECORD OF SERVICE AND PERFORMANCE; ANY ADDITIONAL FACTORS
DERIVED FROM A BACKGROUND INVESTIGATION OF THE INDIVIDUAL;
AND THE SENSITIVITY OF THE PARTICULAR INFORMATION TO WHICH
HE HAS OR WOULD GAIN ACCESS, IN DRAFTING THE PROPOSED
POLICY IN THIS MANNER, WE BELIEVED IT DESIRABLE TO LEAVE
SOME LATITUDE FOR COMPONENTS TO DENY ACCESS OR CLEARANCE ON
THE BASIS OF A REFUSAL TO TAKE THE COUNTERINTELLIGENCE
POLYGRAPH, IHERE ARE CASES IN OUR :UDGMENT WHERE THE INFORMATION
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TO BE ACCESSED IS SO SENSITIVE THAT COMPONENTS CANNOT AFFORD
TO TAKE THE RISK OF GRANTING ACCESS TO AN INDIVIDUAL WHO
REFUSES TO ANSWER THE SECURITY QUESTIONS ON THE POLYGRAPH.
WE ARE ADVISED BY OUR GENERAL COUNSEL THAT SUCH A PROVISION
MEETS EXISTING LEGAL REQUIREMENTS,
IN SHORT, MR, CHAIRMAN, ALTHOUGH THE PROPOSED POLICY CHANGES
ADMITTEDLY WOULD PERMIT A GREATER USE OF THE POLYGRAPH
WITHIN DEFENSE, THE EFFECT OF THESE CHANGES IS NEITHER AS
DRAMATIC NOR PERVASIVE AS ONE MIGHT BELIEVE FROM THE PRESS
COVERAGE..
WHERE POLYGRAPH EXAMINATIONS WOULD BE AUTHORIZED FOR PERSONNEL
SCREENING PURPOSES, THEY WOULD BE LIMITED TO COUNTERINTELLIGENCE
INQUIRIES, NOT QUESTIONS ABOUT LIFE-STYLE OF THE INDIVIDUAL.
THE ONLY AGENCIES WHERE A SUBSTANTIAL EXPANSION IS LIKELY TO
OCCUR ARE THOSE IN THE INTELLIGENCE BUSINESS, OR ARE CONCERNED
WITH EXTREMELY SENSITIVE R&D PROJECTS OR MILITARY OPERATIONS
REQUIRING COMPARTMENTED ACCESSES, SUCH AS THE IRANIAN RESCUE
MISSION, FINALLY, THE BASIC PROVISIONS OF THE OLD DIRECTIVE,
DESIGNED TO PROTECT THE RIGHTS AND PRIVACY OF DOD EMPLOYEES,
ARE CARRIED OVER IN THE PROPOSED REVISION,
IN CONCLUSION, I AM CONVINCED THE POLYGRAPH CAN BE EMPLOYED
IN A MANNER THAT DOES NOT VIOLATE THE-RIGHTS AND PRIVACY OF
OUR EMPLOYEES, AND YET PROVIDES THE DEPARTMENT WITH A GREATER
DEGREE OF SECURITY ASSURANCE WITH RESPECT TO OUR MOST SENSITIVE
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PROGRAMS THAN WE NOW HAVE, WE BELIEVE THE MERE POSSIBILITY
CF BEING SUBJECTED TO A POLYGRAPH EXAMINATICN WILL ACT AS A
POWERFUL DETERRENT TO INDIVIDUALS INTENT ON PENETRATING SUCH
ACTIVITIES AND PROGRAMS. CONVERSELY, WE BELIEVE THE POLYGRAPH
CAN HELP US TO FERRET OUT THOSE WHO MIGHT TAKE THE RISK,
THE UNITED STATES HAS A GREAT DEAL AT STAKE IN THE SUCCESS
OF ITS INTELLIGENCE ACTIVITIES; ITS RESEARCH AND DEVELOPMENT
PROJECTS; AND ITS MILITARY OPERATIONS, AS WE HAVE RECENTLY
SEEN WITH THE PRIME CASE, IT ONLY TAKES ONE PERSON WITH
ACCESS TO SENSITIVE INFORMATION WHO IS WILLING TO SHARE IT
WITH OUR ADVERSARIES TO COST THE NATIONAL SECURITY DEARLY IN
TERMS OF ITS RESOURCES, AND, IN SOME CASES, THE LIVES OF ITS
PERSONNEL, PERSONALLY, MY RANK AND RECORD NOTWITHSTANDING,
I DO NOT CONSIDER IT AN INTRUSION UPON MY PRIVACY FOR THE
GOVERNMENT TO ASK ME PRIOR TO GIVING ME THE CAPABILITY TO DO
SUCH HARM, WHETHER I AM WORKING FOR THE OTHER SIDE, INDEED,
IT ONLY SEEMS PRUDENT THAT IT DO SO.
I WOULD HOPE, MR. CHAIRMAN, THAT 'I HAVE CLARIFIED SOME OF
THE MISUNDERSTANDING CONCERNING THE SCOPE AND INTENT OF THE
POLYGRAPH PROPOSAL NOW UNDER CONSIDERATION IN. DEFENSE, As I
STATED AT BEGINNING, WE ARE OPEN TO ANY SUGGESTIONS THAT THE
SUBCOMMITTEE AND THE PUBLIC MAY WISH TO.OFFER US IN THIS
REGARD TO BETTER ACCOMPLISH THESE OBJECTIVES,
WITH THIS, MR. CHAIRMAN, I WILL TURN THE FLOOR OVER TO MR,
TAFT, THE GENERAL COUNSEL, FOR HIS COMMENTS.
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