TWENTY-FIFTH REPORT BY THE COMMITTEE ON GOVERNMENT OPERATIONS TOGETHER WITH ADDITIONAL AND DISSENTING VIEWS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000300360009-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 31
• Document Creation Date: December 21, 2016
• Document Release Date: October 29, 2008
• Sequence Number: 9
• Publication Date: November 22, 1983
• Content Type: REPORT

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Union Calendar No, 326
THE ADMINISTRATION'S INITIATIVES TO EXPAND
POLYGRAPH USE AND IMPOSE LIFELONG CEN-
SORSHIP ON THOUSANDS OF GOVERNMENT EM-
PLOYEES
TWENTY-FIFTH REPORT
BY THE
COMMITTEE ON GOVERNMENT
OPERATIONS
together with
Additional and Dissenting Views
31
NOVEMBER 22, 1983.-Committed to the Committee of the Whole House
on the State of the Union and ordered to be printed
U.S. GOVERNMENT PRINTING OFFICE
27-1200 WASHINGTON : 1983
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COMMITTEE ON GOVERNMENT OPERATIONS
JACK BROOKS, Texas, Chairman
DANTE B. FASCELL, Florida
DON FUQUA, Florida
JOHN CONYERS, JR., Michigan
CARDISS COLLINS, Illinois
GLENN ENGLISH, Oklahoma
ELLIOTT H. LEVITAS, Georgia
HENRY A. WAXMAN, California
TED WEISS, New York
MIKE SYNAR, Oklahoma
STEPHEN L. NEAL, North Carolina
DOUG BARNARD, JR., Georgia
BARNEY FRANK, Massachusetts
TOM LANTOS, California
RONALD D. COLEMAN, Texas
ROBERT E. WISE, JR., West Virginia
BARBARA BOXER, California
SANDER M. LEVIN, Michigan
BUDDY MACKAY, Florida
MEL LEVINE, California
MAJOR R. OWENS, New York
EDOLPHUS TOWNS, New York
FRANK HORTON, New York
JOHN N. ERLENBORN, Illinois
THOMAS N. KINDNESS, Ohio
ROBERT S. WALKER, Pennsylvania
LYLE WILLIAMS, Ohio
WILLIAM F. CLINGER, JR., Pennsylvania
RAYMOND J. McGRATH, New York
JUDD GREGG, New Hampshire
DAN BURTON, Indiana
JOHN R. McKERNAN, JR., Maine
TOM LEWIS, Florida
ALFRED A. (AL) McCANDLESS, California
LARRY E. CRAIG, Idaho
DAN SCHAEFER, Colorado
JOHN M. SPRATT, JR., South Carolina
JOE KOLTER, Pennsylvania
BEN ERDREICH, Alabama
WILLIAM M. JONES, General Counsel
JOHN E. MOORE, Staff Administrator
R. MICHAEL LONG, Professional Staff Member
JOHN M. DUNCAN, Minority Staff Director
LEGISLATION AND NATIONAL SECURITY SUBCOMMITTEE
JACK BROOKS, Texas, Chairman
DANTE B. FASCELL, Florida FRANK HORTON, New York
DON FUQUA, Florida JOHN N. ERLENBORN, Illinois
ELLIOTT H. LEVITAS, Georgia WILLIAM F. CLINGER, JR., Pennsylvania
HENRY A. WAXMAN, California DAN BURTON, Indiana
STEPHEN L. NEAL, North Carolina
TOM LANTOS, California
RICHARD C. BARNES, Staff Director
DAVID E. HOLT, Professional Staff Member
LESLIE L. MEGYERI, Professional Staff Member
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HOUSE OF REPRESENTATIVES,
Washington, D.C., November 22,1983.
Hon. THOMAS P. O'NEILL, Jr.,
Speaker of the House of Representatives,
Washington, D.C.
DEAR MR. SPEAKER : By direction of the Committee on Govern-
ment Operations, I submit herewith the committee's twenty-fifth
report to the 98th Congress. The committee's report is based on a study
made by its Legislation and National Security Subcommittee.
JACK BROOKS, Chairman.
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CONTENTS
Page
I. Summary -----------------------------------?-------------------
1
II. Discussion ----------------------------------------------__
3
A. Background ----------------------------------------------
3
B. The Government's increasing reliance on polygraphs __..______
4
1. The polygraph----------------------------------------
4
2. Prior Federal use of polygraphs________________________
5
8. The directives_________________________________________
6
4. The Office of Technology Assessment study __.____________
8
a. Polygraph use in investigations __.________________
8
b. Personnel security screening_____________________
10
C. Coercive use of the polygraph and its impact on
employees --------------?----------------------
d. Countermeasures --------------------------------
C. Prepublication review agreements _______-.__________________
1. The Interdepartmental Report-The Rationale for Pre-
publication Review__________________________________
13
2.
The agreements---------------------------------------
14
3.
Quantitative assessment-GAO's testimony __-.___________
15
4.
Prepublication review and the Constitution __________.____
15
5.
Censorship is not a public good ___________.______________
17
III. Findings
------------------------------------------
20
----------
IV. Conclusions and recommendations _______________._-________-__--__
21
VIEWS
Additional views of Hon. Glenn English________________________________
22
Additional views of Hon. Frank Horton, Hon. Lyle Williams, Hon. Wil-
liam F. Clinger, Jr., Hon. Judd Gregg, and Hon. Tom Lewis------------
25
Dissenting views of Hon. John N. Erlenborn, Hon. Thomas N. Kindness,
Hon. Robert S. Walker, Hon. Dan Burton, Hon. Alfred A. (Al) McCand-
less, and Hon. Larry E. Craig ----------------------------------------
26
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Union Calendar No. 326
98TH CONGRESS i HOUSE OF REPRESENTATIVES j REroRT
1st Session J 1 No. 98-578
THE ADMINISTRATION'S INITIATIVES TO EXPAND
POLYGRAPH USE AND IMPOSE LIFELONG CENSOR-
SHIP ON THOUSANDS OF GOVERNMENT EMPLOYEES
NOVEMBER 22, 1983.-Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. BROOKS, from the Committee on Government Operations, sub-
mitted the following
TWENTY-FIFTH REPORT
together with
Additional and Dissenting Views
BASED ON A STUDY BY THE LEGISLATION AND NATIONAL SECURITY
SUBCOMMITTEE
On November 15, 1983, the Committee on Government Operations
approved and adopted a report entitled "The Administration's Initi-
atives To Expand Polygraph Use and Impose Lifelong Censorship on
Thousands of Government Employees." The chairman was directed
to transmit a copy to the Speaker of the House.
1. SUMMARY
Stating that additional safeguards are needed to protect classified
information, the present Administration has undertaken a number of
new policy initiatives. While few disagree with the end sought, there
has been considerable controversy over some of the specific programs
the Administration has developed and sought to implement. Perhaps
the most drastic are the Administration's proposals to extend the Gov-
ernment's reliance on polygraph in ferreting out leakers and potential
leakers of classified information, and to impose life-long censorship
upon employees and others who have access to certain types of classified
information.
On March 11, 1983, President Reagan issued a directive on safe-
guarding national security information. That Directive mandates
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greater use of and reliance on polygraph examinations in investiga-
tions of leaks of classified information. Under its provisions, Federal
employees are required to submit to such exams or face the prospect
of adverse consequences. These changes were based upon the recom-
mendations of an Interdepartmental Group set up to study the prob-
lem of media leaks.
The Directive also requires all individuals with access to classified
information designated Sensitive Compartmented Information, or
SCI, to sign a prepublication review agreement. It requires the sub-
mission for governmental review of all writings, including fiction,
and proposed speeches which touch upon intelligence matters. This
requirement is lifo, long.
In June of 1983, the Department of Defense released proposed
revisions to its polygraph regulations which would expand signifi-
cantly the Department's use and reliance upon the polygraph. The
changes would require polygraph exams in pre-employment and pre-
access interviews for positions requiring access to certain classified
information. Thereafter, polygraph exams could be given randomly
in continuing security checks. As with the President's Directive, any-
one refusing to submit to a polygraph exam would be subject to
adverse consequences.
The House Government Operations Committee has held extensive
hearings on the Federal Government's use of the polygraph. Reports
were issued in 1965 and again in 1976. Both concluded that the valid-
ity of polygraph testing was not scientifically supported. The first
recommended limiting their use to only the most important national
security cases and criminal investigations; the latter recommended
curtailing their use altogether.
Because the Department of Defense's proposed regulations ignore
the committee's previous recommendations, Chairman Brooks sought
and obtained on July 26, 1983, an amendment to the Defense Depart-
ment Authorization legislation which prevented implementation of
the DOD revisions until April 15, 1984. This was done to allow suf-
ficient time for Congress to review the new policies.
Neither the polygraph procedure nor the prepublication review
requirement is new; both were generated and have been employed
for some time within the intelligence agencies of the Government.
It is the attempt to apply these requirements beyond the Central
Intelligence Agency and the National Security Agency to other
agencies of the Executive Branch which has demanded scrutiny.
An extensive review of this new application, culminating in a
public hearing on October 19, 1983, was undertaken by the Legisla-
tion and National Security Subcommittee of the Committee on Gov-
ernment Operations. Answers were sought to questions concerning the
justification of and effects that will accompany the expansion of the
use of polygraph examinations and the prepublication review require-
ment to non-intelligence agencies. To this end, Congress' General Ac-
counting Office (GAO) and Office of Technology Assessment (OTA)
were requested to collect and analyze information relevant to the
proposed changes. Additional witnesses were called to present their
views at the hearing held by the Subcommittee on Legislation and
National Security. While the data revealed and conclusions drawn
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may have bearing upon the operation of these programs within the
intelligence agencies, the focus of the investigation has been on the
application of the polygraph and censorship programs outside of
the intelligence agencies. The Committee has not attempted to review
their use in those specialized agencies.
The Committee concludes, based on these studies and the testimony
presented at the hearing, that the validity of the polygraph is not
scientifically supported for the purposes and manner of its use pro-
posed by the Administration. The risk of misidentifying truthful
persons as deceptive is great in these new policies and they should
not be implemented. In addition, the prepublication review require-
ment will result in significant infringement of the free flow of infor-
mation and debate which is necessary for an informed public and
which has been historically protected from prior censorship. With
the prepublication review requirement, the Government can censure
the books, articles, editorials, and fictional writings of many former
Government officials. Prepublication review should be rejected as a
wholly inappropriate response to the negligible problem of former
officials divulging classified information.
In a public hearing of the Legislation and National Security Sub-
committee, held on October 19, 1983, two separate but related Direc-
tives proposed by the Administration were examined.' The President
on March 11, 1983, issued a Security Directive to all executive agencies
and Departments aimed at reducing unauthorized disclosures of classi-
fied information.2 This Directive closely follows the recommendations
of an Interdepartmental Report which studied a particular aspect of
the problem of unauthorized disclosures, i.e., those disclosures which
occur where "there is no apparent involvement of a foreign power." 3
The Report and its recommendations were aimed at preventing "me-
dia," not "espionage" leaks.
The Subcommittee focused upon two policies mandated by the Di-
rective : (1) The expanded reliance on the use of polygraph exams as
a means of enhancing the investigations of these leaks when made by
anonymous government employees, and (2) the imposition of pre-
publication review agreements to prevent leaks which may occur in
publications and statements by former or current Federal employees.
In addition, the subcommittee also examined proposed revisions,
dated June 1983, to the Department of Defense's polygraph regula-
tions.' These proposals were based upon a DOD study that recom-
1 Hearing before the Legislation and National Security Subcommittee of the Government
Operations Committee, Oct. 19, 1983, hereinafter referred to as the "Hearing."
a National Security Decision Directive-84 on Safeguarding National Security Informa-
tion, issued on Mar. 11, 1983, hereinafter referred to as the "President's Directive."
3 Report by The Interdepartmental Group on Unauthorized Disclosures of Classified
Information, Mar. 31, 1982, p. A-1. This group was appointed by Attorney General William
French Smith at the request of William P. Clark, the then Assistant to the President for
National Security Affairs. Members of the group include representatives from the Depart-
ments of State. Treasury, Defense. Energy, and the Central Intelligence Agency. The group
was chaired by Richard K. Willard of the Department of Justice.
4 Department of Defense Directive No. 5210.48, Oct. 6, 1975, as amended Jan. 14, 1977,
"Polygraph Examinations and Examiners," hereinafter referred to as the "DOD Directive."
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mended changes in security policy:, Specifically, the proposed changes
to the DOD Directive will require expanded reliance on polygraph
testing to assist in determining the initial and continuing eligibility
of civil, military, and contractor personnel at DOD for access to spe-
cific types of, and special programs involving, classified information.
Polygraph exams would be used by all DOD components in screening
potential employees and in conducting periodic random checks of
DOD personnel as is currently done at the National Security Agency.
While consistent with the President's Directive in using the poly-
graph in "media leak" investigations, the DOD's proposed changes in
polygraph use greatly exceed the scope of the President's Directive.
In one fundamental aspect of major importance, however, both Di-
rectives are similar. Whatever the use of the polygraph envisioned by
each Directive, both provide that adverse consequences to an employee
may accompany a refusal to submit to a polygraph exam. From an
employee's point of view, therefore, he or she will be coerced into sub-
mitting to polygraph examinations.
To assist the Subcommittee in its review of both these Directives,
Chairman Brooks requested the GAO to compile and analyze statistical
information concerning the need for, and effect of, these sweeping pol-
icy changes." On June 14, 1983, a questionnaire was sent by Chairman
Brooks to those executive agencies and departments covered by various
provisions of the President's Directive. Later, additional information
was requested and obtained. The results of these surveys were revealed
and discussed at the Hearing.
Further, on February 3, 1983, Chairman Brooks, with the support of
Representative Frank Horton, the Ranking Minority Member of the
committee, requested that OTA review available scientific literature on
polygraphs to determine their validity.' OTA was not asked to examine
the issues of utility, privacy, constitutionality or the ethical aspects
which have been previously raised in the polygraph debate. The OTA
also presented its conclusions at the Hearing.8
B. THE GOVERNMENT'S INCREASING RELIANCE ON POLYGRAPHS
1. The Polygraph
Through the ages man has sought an easy and sure method of sepa-
rating truth from falsehood.a That elusive search continues today.
There are those who hope somehow to "divine" the honest from the dis-
honest through a sure and simple measurement. The fact is, however,
that there is no simple way to discover when a person is lying. The poly-
graph instrument is not a "lie detector" per se; it does not indicate
directly whether a subject is being deceptive or truthful. This is be-
cause there is no known physiological response that is unique to decep-
tion. A polygraph examination consists not only of the collection of
physiological response measurements but the examiner's evaluation of
5 DOD Select Panel Review of the DOD Personnel Security Program, April 1982.
6 Letter of Chairman Brooks to the General Accounting Office, dated May 18, 1983.
4 Letter of Chairman Brooks to the Office of Technology Assessment, Feb. 3, 1983.
9 Scientific Validity of Polygraph Testing (A Research Review sad Evaluation) Technical
Memorandum, October 1983. hereinafter cited as the "OTA 'Study" and testimony of
John H. Gibbons, Director of OTA at the Hearing.
P For a history, see H. Rept. 80-198, 89th Congress, 1st Session, Mar. 22, 1963. "Use of
Polygraphs as 'Lie Detectors' by the Federal Government," Committee on Government
Operations, pp. 8-9.
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those measurements as well. This is often referred to as a diagnosis
of :truthfulness or deception. Measured increases in physiological
responses may be caused by any number of factors, including fear,
anxiety, or excitement. Today, the term polygraph refers to the
multiple-pen measuring system which simultaneously records three
physiological responses on a roll of moving paper : breathing patterns,
blood pressure, and galvanic skin response.
2. Prior Federal Use of Polygraphs
The House Government Operations Committee has a longstanding
interest in polygraph use within the Federal Government. In 1964
the Foreign Operations and Government Information Subcommittee
conducted a Hearing on the Federal Government's use of polygraphs.
They found that, excluding the National Security Agency (NSA) and
the Central Intelligence Agency (CIA), Federal agencies had con-
ducted 19,796 polygraph examinations in 1963. In 1965, after carefully
considering the evidence presented during the hearing, the House Com-
mittee on Government Operations issued a report in which it was con-
cluded that there was no scientific evidence to support the use of the
polygraph and that the research on its accuracy was not adequate.10
The Committee recommended that additional research be conducted,
that training for polygraph examiners be improved, that the govern-
ment guarantee that polygraph exams in fact be voluntary (insure
that refusal to take the exam will not constitute prejudice), and that
the President set up an interagency committee to develop regulations
for Federal Government polygraph use.1'
Following the issuance of the Committee's report, an interagency
polygraph committee, consisting of representatives from DOD, the
Central Intelligence Agency, the Department of Justice, the Bureau
of the Budget, the Office of Science and Technology, and other
agencies, was formed. That committee, after study and review of Fed-
eral polygraph use, concluded that there was insufficient scientific evi-
dence concerning the validity and reliability of polygraph testing and
that polygraph use constituted an invasion of the privacy of the in-
dividual being examined. The interagency committee recommended
that the "use of polygraphs in the Executive Branch should be gen-
erally prohibited and used only in special national security cases and
in specified criminal cases." 12
In 1973. the Civil Service Commission (now the Office of Personnel
Management) issued Appendix D, to Chapter 736 of the Federal Per-
sonnel Manual setting forth specific regulations on the use of poly-
graphs in personnel investigations of competitive service applicants
and appointees for competitive service positions.13 That Appendix,
which is still in effect pending full implementation of the President's
Directive, states that only executive agencies with highly sensitive in-
telligence or counterintelligence missions directly affecting the na-
tional security are permitted to use the polygraph for employment
screening and personnel investigations of applicants for competitive
service positions. Further, it requires that such examinations be volun-
10 Id., page 25.
11 Id., page 2.
12 Letter to President Lyndon B. Johnson from the Civil Service Commission, dated July
29. 1966, page 2.
13 Federal Personnel Manual, Appendix D, Chapter 736.
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tarily agreed to by an employee in writing and that the refusal to con-
sent to a polygraph examination will not be made a part of his or her
personnel file.
In 1976, the Foreign Operations and Government Information Sub-
committee of the House Government Operations Committee again held
hearings and reported on the use of polygraphs by Federal agencies."
In that report the Committee determined that polygraph use had de-
clined significantly since 1963 and that there had not been much addi-
tional research on polygraph validity. The Committee concluded that
"the nature of research undertaken, both federally and privately
funded, and the results therefrom, have done little to persuade the
Committee that polygraphs ... have demonstrated either their validity
or reliability, in differentiating between truth and deception, other
than possibly in a laboratory situation." 15 Further, that report con-
curred with the conclusion in the'1965 report that there is no such thing
as a "lie detector" device. The Committee recommended prohibiting
the use of polygraphs in all cases.-
In July 1975, DOD issued its Directive regulating polygraph use for
the first time within the Department.17 As amended in 1977, that Direc-
tive has governed polygraph use in DOD to this date. The DOI) Direc-
tive provides that DOD and its components may use polygraph exams
only in limited circumstances. It states that "[a] ll DOD investigations
and interviews shall depend upon relevant evidence secured through
skillful investigations and full interrogations" and that "[p]roperly
used, the polygraph can be a useful investigative aid in securing and
verifying evidence, however, the polygraph shall be employed only as
an aid to support other investigative techniques and be utilized gener-
ally only after the investigation by other means has been as thorough
as circumstances permit." 18 Thus, at DOD, the polygraph was intended
to be used only as an adjunct to other investigative techniques. Further,
the DOD Directive carefully controls DOD polygraph use to prevent
"its use in cases other than serious criminal cases, national security in-
vestigations and highly sensitive national security access cases." 19
Finally, the DOD Directive explicitly prohibits adverse actions
against any employee for refusing to submit to a polygraph examina-
tion and forbids recording such a refusal in that employee's personnel
file. "Adverse action shall not be taken against a person for refusal to
take a polygraph examination-. [i]nformation concerning a person's
refusal to submit to a polygraph examination shall not be recorded in
his or her personnel file and shall be protected against unauthorized
disclosure." 20 Thus, under the present DOD Directive, the polygraph
is to be used "only when the individual taking the polygraph examina-
tion volunteers to take the examination." 21 [Emphasis added.]
3. The Directives
Both the President's Directive and DOD's proposed changes to its
directive represent radical departures from past Government policy
14 H. Rept. No. 94-795, 94th Congress, 2d Session, January 28, 1976, "The Use of Poly-
graphs and Similar Devices by Federal Agencies."
15 Id., page 12.
30 Id., page 46.
17 The DOD Directive, supra n. 4.
i9 Id., page 2.
ie Id.
Id., page 4.
" Id., page 2.
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regarding polygraph use. The President's Directive provides, in perti-
nent part:
The Office of Personnel Management and all departments
and agencies with employees having access to classified infor-
mation are directed to revise existing regulations and policies,
as necessary, so that employees may be required to submit to
polygraph examinations, when appropriate, in the course of
investigations of unauthorized disclosures of classified infor-
mation. At a minimum, such regulations shall permit an
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 im-estigation. Agency regu-
lations may provide that only the head of the agency, or his
delegate, is empowered to order an employee to submit to a
polygraph examination. Results of polygraph examinations
should not be relied upon to the exclusion of other information
obtained during investigations.22 [Emphasis added.]
Under the proposed revisions to the DOD Directive, polygraphs
would be used throughout the Department to assist in determining
the initial and continuing eligibility of employees for access to certain
classified information. Polygraphs would be used both in the initial
screening of personnel who would have access to certain classified
information and, thereafter, in aperiodic testing. Specifically, the
DOD revisions would authorize the use of the polygraph to deter-
mine initial and continuing eligibility of DOD civilian, military and
contractor personnel for access to classfied information known as
Sensitive Compartmented Information (SCI) or to special access
programs within the Department.23
As with the President's Directive, adverse consequences may follow
an employee's refusal to submit to the exam under the DOD Directive
revisions.
When a polygraph has been established as a requirement
for selection or assignment to a position within the Depart-
ment of Defense, as a condition of access to classified infor-
mation, or for use in investigation of unauthorized disclo-
sures, refusal to take such an examination may result in
adverse consequences after due consideration of such factors
as the individual's reasons for refusal; his or her record of
service and performance ; any additional factors derived
from a background investigation of the individual; the sen-
sitivity of the particular information to which he or she has
or would gain access; and other relevant factors .. .24 [Em-
phasis added.]
These initiatives stand in sharp contrast to the policies set forth
in the Federal Personnel Manual and the 1975 DOD Directive, as
previously discussed.
2s The President's Directive, supra n. 2, paragraph 5.
23 Department of Defense proposed revision, June 1983, page 4.
24 Id., at page 3.
27-120 0 - 83 - 2
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4. The O fee of Technology Assessment Study
At the Hearing, the OTA presented its findings based on its study
on polygraph validity. For background, the OTA reviewed the pres-
ent extent of Federal polygraph use and determined that over the
last ten Years polygraph use has tripled, with roughly 23,000 exami-
nations being conducted in 1982. Thus, while the Government Oper-
ations Committee was able to determine that polygraph use by the
Federal Government had dropped in the preceding 10-year period
(1963 to 1973), its use has made a dramatic return. Except in the
National Security Agency and the Central Intelligence ,Agency, more
than 90 percent of all polygraph tests in 1982 were for criminal
investigations. At present, the non-intelligence agencies make very
little use of the polygraph for investigations of unauthorized dis-
closures of classified information. Between 1980 and 1982, polygraphs
were used on 261 occasions in such invest i(rations .25
Statistics collected by the GAO in their survey reveal the mag-
nitude of changes which the new policies will entail. Under the terms
of the President's Directive, almost half of the Federal workforce,
or over 2.5 million individuals, are potentially exposed to polygraph
exams in leak investigations. Under the 101) Directive, if revised
according to plan, about 2.4 million employees who have secnrity
clearances would be subject to its requirements. In addition, about
1.3 million employees of defense contractors would be covered.20
The primary focus of the OTA review was to evaluate the scientific
evidence on polygraph validity. OTA conducted an extensive analysis
of all relevant prior research reviews, analyzed a wide range of field
and analogous studies, and surveyed Federal agencies for relevant
data.
OTA concluded that no overall measure or single statistic of poly-
;raph validity can be demonstrated through the available research.
Some uses of the polygraph have been comparatively well researched,
such as the use of polygraphs in criminal investigations. Ot her uses,
such as pre employment screening, have. had no accept able research
attention. Conclusions about polygraph validity can only bey made re-
garding the particular type of polygraph use in question. For the
study, the OTA identified three predominant categories of polygraph
use: Specific-issue criminal investigations (i.e., as an aid in narrowly
defined investigations of mnisbehavior), specific-issue screening inves-
tigations (i.e., the "dragnet" investigation), and personnel security
screening (i.e., pre-employment, pre-access, and aperiodic screening.)" 27
a. Polygraph Use in Investigations
Use of the polygraph in criminal investigations is most often char-
acterized by a prior investigation that both narrows the list of possible
suspects down to it very few, and importantly, has already developed
significant information about the crime itself. This allows questions to
be asked that can be very specific and aimed at particular knowledge
only the guilty suspect would possess.
OTA study, pages 1-1 and 1-2.
Testimony of Dr. Kenneth J. Coffey, Associate Director-GAO, pages 5-6. (GAO Sur-
vey, October 18, 1983, pages 1-2.)
-n OTA study, page 7-2.
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This application of the polygraph is the only use extensively re-
searched. OTA reports, however, that the results of the relevant studies
vary widely with regard to the validity of the test. In a review of 28
studies meeting "acceptable scientific criteria", correct guilty detec-
tions ranged from 17 to 100 percent. "Overall, the cumulative research
evidence suggest that when used in criminal investigations, the poly-
graph test detects deception better than chance, but with significant
error rates." 28
Both the President's Directive and the proposed revisions to the
DOD Directive authorize the use of the polygraph in administrative
and criminal investigations of unauthorized disclosures of classified
information. OTA was not, however, able to generalize the results of
the prior studies to these new proposals primarily because no specific
investigative procedure has been identified for use under these
Directives.
The second type of polygraph use examined in detail by OTA is
the specific-issue screening method. This method is used, for example,
to screen a large number of people regarding the commission of a
crime. The President's Directive is equivocal regarding "dragnet" use
of polygraphs in investigations involving the unauthorized disclosure
of classified information. While the Department of Justice witness
testified that the Administration does not interpret the Directive as en-
compassing such usage'29 the lack of an expressed prohibition in the
Directive suggests that specific issue screening with polygraphs could
be permissible.
OTA reports that there has been no scientific research conducted
on specific-issue screening of the polygraph. OTA was unable to gen-
eralize from the research that does exist on polygraph use in criminal
investigations, because conditions surrounding the unauthorized dis-
closure of classified information will likely vary greatly from the con-
ditions reviewed by OTA in the criminal setting.
A major problem, identified by OTA, with using polygraphs in
large-scale screening situations, is the significantly higher error rates
that will likely result in this context.
The screening situation is most dependent on the so-called
base rate of guilt, that is, the percentage of groups of persons
being screened that has engaged in the criminal (or otherwise
proscribed) activity. If the percentage of guilty is small,
say 5 percent (1 guilty person out of every 20 persons
screened, or 50 out of 1,000), then even assuming a very high
(95%) polygraph validity rate, the predictive value of the
screening use of the polygraph would only be 50 percent. This
is, for each 1,000 individuals screened, about 47 out of the 50
guilty persons would be correctly identified as deceptive, but
47 out of the 950 innocent persons would be incorrectly identi-
fied as deceptive (false positives). Thus, of the 94 persons
identified as deceptive, one-half would be innocent persons.
For every person correctly identified as deceptive, another
person would be incorrectly identified.30
2 Id., pages 1-5.
29 Testimony of Richard Willard, pages 45-48.
30 OTA study, pages 7-6 and 7-7.
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It is important to note that the Federal Bureau of Investigation,
which is the principal non-intelligence agency- using the polygraph,
prohibits the "nse of the polygraph for dragnet-type screening of large
numbers of suspects or as a substitute for logical investigations by
conventional means." 31 Further. polygraph examinations are allowed
in the FBI only when "there is reasonable cause to believe that the per-
son to be examined has knowledge of or was involved in the matter
under inquiry or investigation, or if the person is withholding in-
formation relevant to the inquiry or investigation." 32
b. Personnel Security Screening
OTA also examined the scientific validity of polygraphs for use in
personnel security screening. As indicated, the proposed revisions to
the DOD Directive would authorize the use of the polygraph for de-
termining initial and continuing eligibility of I)OI) civilian, Military
and contractor personnel for access to highly classified information.
SCI and/or for special access programs. These entail the use of poly-
graphs in pre-enlploylnent, pre-access, and in aperiodic testing of such
employees.
OTA's review of the scientific literature uncovered only- four studies
(one by DOD) that address this use. Unfortunately, none specifically
address validity and according to OTA "all had serious Iituitat ions iii
study design." 33 Therefore, OTA concluded that there is no acceptable
research to establish polygraph validity for use in personnel screening,
be it pre-enlploy-nletit, pre-clearance, or aperiodic.
As with specific-issue screening. personnel screening carries vv-Ill) it
the problem of incorrectly identifying innocent people as deceptive in
large numbers. "All other factors being equal, the lower base rates of
guilt in screening situations would lead to high false positive I ident i f y-
ing a truthful person as deceptive j rates, eyen issuniing very Iii'-11
polygraph validity."
Dr. John If. Gibbons, Director of OTA_ testified at the I leaning that
"there is legitiulate concern that I)OI) use of polygraphs for screening
purposes may incorrectly identify significant numbers of innocent
persons as deceptive."
The OTA conclusions on polygraph validity may be sllfill) la rized as
follows: There is no scientific evidence to support the use of poly-
graphs for screening pllpost's, investigatory or otherwise, and there is
good reason to expect that such- use will carry with it the higrli risk of
misidentifying many innocent persons as liars. Farther, while there
has been sonic scientifically acceptable study of the use of polygraphs
in the context of narrow investigations, the conclusions on validity are
conflicting. The validity of the polygraph has simply not been con-
clusively demonstrated.
c. Coercive Use of thc Polvygiaph and Ifs Impact on Einplogecc.s
Another important, issue addressed in the OTA study is that of the
voluntariness of submission to a polygraph exiull. OTA reports that
"coercing persons to take a polygraph test could affect validity,"
and cautions that "imposing penalties for not taking a test nlay create
"" 11 BI Polygraph Regulations 13-22.2(2), 1980.
:" Id., 13-22.4(2).
as OTA study, pages 1-4.
OTA study, pages 7-9.
Hearing.
' OTA study, pages 1-6.
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a de facto involuntary condition that increases the chances of invalid
or inconclusive test results." 3' Both the President's Directive and the
DOI) proposed revisions would allow adverse consequences examination.
against any employee who refuses to take a polygraph
This is a sharp break with present policy in DOD. As it stands now,
polygraph examinations are voluntary. That is, a person will not be
punished in any way for refusing to take polygraph examinations.
The DOI) directive limits adverse consequences to "nonselection for
the assignment or employment; denial or revocation of clearance or
reassignment to a nonsensitive position." 38 The President's Directive
gives the agencies no guidance in determining what constitutes "ap-
propriate adverse consequences."
Richard K. Willard, Deputy Assistant Attorney General, testifying
on behalf of the Administration, said :
In our view, an employee who refuses an order to take
a polygraph examination in an appropriate case may be sub-
ject to a range of administrative sanctions to include removal,
as well as lesser forms of discipline, such as a letter of repri-
mand or suspension without pay. The appropriateness of any
sanction for refusal to comply with an order to take a poly-
graph examination would obviously depend upon the circum-
stances of the case, including the reason given by the employee
for refusing the order.:19
Even if the refusal to submit to a polygraph involved no loss of job
or demotion, the loss of career opportunities is still coercive and likely
to affect the validity of the test, as well as the morale of government
workers.
Kenneth Blaylock, the President of the American Federation of
Government Employees, AFL-CIO, expressed his and the members of
the union he represents views on the practical effects the government's
increasing use of polygraphs will have on government workers. He
stated at the Hearing, ". . . everything in the regulation supports
the prime abuse of polygraphs-namely, the use of those unreliable
machines to intrude into the private lives and thoughts of American
citizens." 40
The American Federation of Government Employees represents
over 700,000 workers, many of whom are employed at DOD. Mr. Blay-
lock characterized the Administration's polygraph policy as "an un-
warranted intrusion in the private lives of loyal, hard-working fed-
eral employees." 41 Addressing the President's directive, he asserted,
"If this directive is implemented as proposed, federal workers would
not even have the dignity and protections routinely granted an indicted
suspect in the criminal courts." 42
Former Senator Sam Ervin (D-N.C.), who was concerned about the
expansion of polygraph use during his tenure in the Senate, wrote
Chairman Brooks on September 22, 1983. In this letter Senator Ervin
referred to the polygraph as a fraud and twentieth century witch-
craft.43
27 Id., pages 1-7.
m Department of Defense proposed revision, supra n.23, page 3.
39 40 Testimony of Kenneth Blaylock, page 11. 31-32. of Richard Willard, pages si Id., page I.
42Id., page 7.
4? Letter to Honorable Jack Brooks from Sam Ervin, Sept. 22, 1983.
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d. Co2Untcivfmo$ures
A final area of concern is the susceptability of polygraph exams to
countermeasures. These may include the more ninndaute practices of
simple physical movement or pressure during the exam or prior prac-
tice with the Ilist I'll ment, as well as tactics iinvolving drugs, hypnosis,
and biofeedback to "beat the machine." The OTA found research in
the area of countermeasures to be "limited" and the results "con-
fiieting.''19 To the extent that the polygraph is to be used in safe-
guardmg the, national security, this is a serious amt troubling area
Which demands further study before the instrniment is considered re-
liable.
1)r. John Beary, Associate Dean at the Georgetown I'tiiversity.
School of Medicine, and former Principal I)eptity Assistant Secre-
tarv of Defense for Ilealth Affairs, testifying at the Ilearilig, eni-
phasized the ding ers that reliance out the polvgra iii niay have for our
national security. In response to questioning by Chairtuaa Brooks he.
indicated :
This machine cannot tell who is lying and who isn't, one
would have to assume someone who is as professional as the
KGB is going to train their spies. They do indeed, I under-
stand, have a camp in Eastern Europe where they do this
If you don't confess, you are never going to get caught
by this thing. I would suspect, judging by the number of peo-
ple and the security lapses we have had at CIA and other
places where they use the polygraph, that people are getting
through. Things are happening even though they are being
screened on this.
So, if it doesn't work yet your people think it does, your
managers think it, does, then you have a spy sitting there
comfortably who is ]ionic free. Once you pass that, people
pretty much forget about you in this context.4
Thus, the DOD's reliance on polygraphs to screen for spies creates
a false sense of security. Prior to the Hearing, I)r. Beary's views on
polygraphs were well known within the DOI). In memorandums sent
to the Secretary of Defense, he criticized the plans to extend poly-
graph use.4 At the hearing he reiterated his position by stating that
there is no such thing as a "lie detector" and that there is no physio-
logical response unique to lying.
In his testimony, I)r. Beary posed the question of wh,y, considering
all its scientific shortcomings, the polygraph is used by private coin-
panies and government agencies. The answer, he stated
. . , is the placebo response. Because most citizens are sci-
entifically naive, some confess to things when hooked up to
the polygraph because they believe it really can detect lies.
However, you don't get something for nothing. The innocent
people whose careers are damaged by the machine are the
price paid for these placebo-induced confessions."
"OTA study, p. 1-6.
" Hearing.
" Memorandum of Dr. John Beary, dated Dec. 16, 1982, and Jan. 11, 1983.
47 Testimony of Dr. John Beary, p. 5.
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C. PREPUBLICATION REVIEW AGREEMENTS
The other major policy initiative, which the President's Directive
mandates in an effort to stop unlawful disclosures of classified infor-
mation is the requirement that all persons with access to Sensitive
Compartmented Information (SCI) sign a nondisclosure agreement
which contains a prepublication review provision. Specifically, the
Directive requires that "Each agency of the Executive Branch that
originates or handles classified information shall adopt internal proce-
dures ..." which, at a minimum, require "[all persons with author-
ized access to Sensitive Compartmented Information (SCI) ... to sign
a nondisclosure agreement as a condition of access ...'' which "... must
include a provision for prepublication review to assure deletion of SCI
and other classified information.
This requirement was also carefully reviewed, by the Legislation and
National Security Subcommittee at the Hearing.
1. The Interdepartmental Report-The Rationale for Prepublication
Review
As with the polygraph provision of the Directive, prepublication re-
view agreements were recommended in the Interdepartmental Report.
Within the scope of that report (as indicated previously, unauthorized
disclosures of classified information in which there is no apparent
involvement of a foreign power) there were two priniary types of
unauthorized disclosures identified. First, the use of polygraph exami-
nations was envisioned as a means to enhance the investigations of
"media" leaks by anonymous Government employees; second, the im-
position of prepublication review agreements was recommended to stop
classified information front being disclosed overtly in publications and
materials by former or current employees.
These two policies serve different purposes and may be strictly segre-
gated. When a leak is made by an anonymous government employee to
the media, an investigation is required to determine the source. Pre-
venting these leaks requires the establishment of a deterrent to future
leaks by finding the source and punishing the person responsible. In
this context, expanding the use of polygraph testing was recommended
by the Interdepartmental group to improve the Government's ability
to investigate and prosecute this type of leak.
When a disclosure of classified information occurs through it publi-
cation or other prepared materials by a former or current official, how-
ever, the source is known. The former or current official, as the author,
is clearly the source of the unauthorized disclosure and investigations
are not problematic. This type of disclosure, it would appear, will most
often occur through inadvertence, not in a deliberate attempt to reveal
classified information. According to the Interdepartmental Commit-
tee, prevention requires a system of government review, prior to publi-
cation, of those publications or materials by current or former indi-
viduals which may contain classified information to assure its deletion.
The requirement of prepublication review agreements to be signed by
those with access to Sensitive Compartmented Information (SCI) de-
velops such a system by a contractual method.
4 The President's Directive, supra N.2, paragraphs 1 and 1b.
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2. The Agreements
In compliance with the President's Directive, a civilly enforceable,
prepublication review contract was issued by the Department of Justice
on August 24, 1983, to all Federal agencies with personnel who have
access to SCI. Those agencies are currently in the process of obtaining
the required signatures from the covered individuals.
This Sensitive Compartmented Information Nondisclosure Agree-
ment provides, inter alia, that those who sign :
In consideration of being granted access to SCI and of
being assigned or retained in a position of special confidence
and trust requiring access to SCI, and other classified infor-
mation, . .. agree to submit for security review by the
Department or agency last granting ... either a security
clearance or an SCI access approval all materials, including
works of fiction, that ... contemplates disclosing to any
person not authorized to have such information or that . .
[is] prepared for public disclosure, which contain or purport
to contain :
(a) any SCI, any description of activities that produce or
relate to SCI, or any information derived from SCI;
(b) any classified information from intelligence report or
estimates ; or
(c) any information concerning intelligence activities,
sources or methods. [Emphasis added.] 49
Further, the agreement makes clear that the obligation to submit
such information for review is lifelong.5o The contract provides that,
upon receipt of submitted material, the government (the department
or agency to which it was submitted "coordinating with the intelligence
community or other agencies when appropriate") will substantially
respond within 30 working days from the date of receipts" The con-
tract provides administrative and civil remedies for a breach.,-'
Finally, the agreement reminds those who sign it that unauthorized
disclosures of classified information may constitute violations of sev-
eral criminal statutes 53 and indicates that the agreement does not
constitute a waiver by the Government of any criminal sanctions un-
der these provisions.54
49 Sensitive Compartmented Information Nondisclosure Agreement, section 5.
60 Id., "I understand and agree that my obligation to submit such information and mate-
rials for review applies during the course of my access to SCI and at all times thereafter."
51 Id., section 7.
52 The Sensitive Compartmented Information Nondisclosure Agreement provides that
administrative sanctions include:
"(1) Termination of any security clearances and SCI access approvals.
"(2)
rancesRemorovalaccessfrom anyapprovalspositioandn of special confidence and trust requiring such
clea ;
"(3) The termination of . employment or other relationships with the depart-
ments or agencies that granted [the] . . . security clearances or SCI access approval."
(Section 8.)
Civil remedies provided in the Agreement include
"(1) The assignment to the United States Government of all royalties, renumera-
tions, and emoluments that have resulted, will result, or may result from any [breach-
ing] disclosure, publication, or revelation,' and u
ion agreementcou(Sect onst9 and 10h~biting disclosure of information in breach of [the]
53 Specifically, Sections 641, 793, 794, 798, and 952 of Title 18, United States Code ;
Section 783(b), Title 50, United States Code, and the provisions of the Intelligence Pro-
tection Act of 1982.
"Sensitive Compartmented Information Nondisclosure Agreement, section 8.
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3. Quantitative Assessment-GAO's Testimony
As with its review of polygraph policy, the General Accounting Of-
fice (GAO) compiled and analyzed statistical information obtained in
response to a questionnaire from Chairman Brooks to the departments
and agencies covered concerning the need for, and effect of, this sweep-
ing policy change.
On the basis of the information submitted by the agencies a clearer
picture of the problem of unauthorized disclosures can be seen, and
the potential effects of the Directive are readily apparent.
Of particular importance to the Committee in conducting its review
of the prepublication review requirement was an assessment of the
need for this provision. As indicated, the prepublication review re-
quirement was designed to prevent those disclosures which occur
through publications and other prepared materials by employees or
former employees themselves.
According to the GAO testimony, there were 21 unauthorized dis-
closures of classified information made through writings or speeches
of current or former employees from six agencies in the last five years.
Of these 21 "leaks," it was not determined how many could have been
prevented by a prepublication review agreement had it been in effect,
because it is not known how many of these disclosures were made by
however, was the
individuals with access to SCI. Of particular note,
revelation that at most, only two leaks resulted in SCI being dis-
closed. Further, of the 21, the Departments of Defense and State each
had only one unauthorized disclosure of this sort.55
To combat this problem, GAO testified that the Presidents Directive
will require 127,750 Federal employees and contractor employees who
o sign the
have SCI access, excluding employees in the CIA and NSA, to-
life-long prepublication review agreements. Of this total, 120,940 per-
sons, or approximately 95 percent, are employees of the I)epartlllents
of Defense and State.
Based upon the answers given in the GAO's investigation, the pre-
publication review provision of the Directive is a massive policy re-
sponse to what has been, in the recent past, it very limited disclosure
problem. The extent of this policy imbalance is further realized when
one considers the qualitative effects the prepublication review require-
ment will have on free speech in our nation.
4. Prop uh1ieation Review and the Constitution
Two First Amendment scholars-Professors Lee Bollinger of the
University of Michigan Law School and Lucas Powe of the University
of Texas Law School-testified at the Hearing, and declared that the
prepublication review requirement in the Directive violates the Consti-
tution."! Professor Thomas Emerson of Yale University Law School
submitted a written statement also criticizing the Directive on consti-
tutional rrounds.t7 Professor Powe characterized the requirement as
"an outrageous assault on the first amendment," ' and indicated
Letter the Honorable Jack Brooks from Frank C. Conahan. Director, National Secur-
ity and International Affairs Division, General Accounting Office, on October 18, 1983.
Enclosure III.
r.' Testimony of Lee Bollinger, page 2, and Lucas 1 owe, page
Letter of Thomas Emerson to Chairman Brooks dated Oct. 31, 19S3.
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16
that `[w]hat the administration has done is beyond precedent." 58
Although each professor took a different tack in his analyses of the
legal issues, they agreed on the fundamental points. All three indicated
that the prepublication review requirement constitiltes, in legal par-
lance, a "prior restraint or licensing system" and that there is no ques-
tion but that the framers intended the First Amendment to guard
against s ch prior censorship programs.
Q notinn C hief Justice Bn: ei s comments in N~brrc ka Pre,~s A ss?oci-
otion v. ~S tuart 427 I7.S.:r l9 (1 c)76) , Professor Emerson concludes that :
The essence of Directive 84 is to impose a sweeping prior
restraint, . . . it sets up a classic and virulent scheme of censor-
ship. As Chief Justice Burger has said, "prior restraints are
the most serious and least tolerable infringements on First
Amendment rights." 51,
Professor Powe stated:
It [the prepublication review requirement] also attacks the
First Amendment at the one place where there is no debate at
all about what the Framers intended: Prior censorship should
be unconstitutional. If government had the ability to punish
individuals for what they said, the Framers believed that that
power could only be brought into play after the speech oc-
curred. Licensing was totally forbidden. [Emphasis added.]
Professor Bollinger concurred :
For more than six decades now, the courts of this country
have struggled with the task of defining a workable set of con-
cepts and principles for the first amendment. Throughout this
time, however, a virtual consensus has formed around one
basic idea-and that, is that prior restraints are the least
favored, the most distrusted, method of proceeding against
harmful speech activity. Licensing, or prior restraint, it has
been repeatedly noted in the literature and cases, is the one
matter, perhaps the only matter, we can be confident that the
Framers intended to prohibit by the Free Speech Clause.61
Our national abhorrence of prior restraints is confirmed by ample
legal precedent, particularly when applied in the context of public or
political speech and including instances when national security infor-
mation was considered to be at stake.62
Despite deep and long standing opposition to prior censorship pro-
grains the Administration is proposing through the requirement of
prepublication review agreements-just such a system. As a matter
of Supreme Court precedent the professors identified only one opinion
which arguably supports the new policy constitutionally. In a recent
sa Testimony of Lucas Powe, page 1.
59 Written statement of Thomas Emerson, page ii.
Testimony of Lucas I'owe, page 1.
61 Testimony of Lee 13oilinger, page 3.
62 Id., page 4, citing Patterson v. Colorado, 205 U.S. 454 (1907) ; Near v. Minnesota, 28.1
U.S. 697 (1931) ; Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1969) ; The New York Times
Co. v. United States, 40:3 U.S. 713 (1971) ; Nebraska Press Association V. Stuart, 427 U.S.
339 (1967) ; Organization for Better Austin v. Keefe, 402 U.S. 415 (1971) ; Southeastern
Promotion, Ltd. v. Conrad, 420 U.S. 546 (1975).
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decision, Snepp v. United States, 444 U.S. 507 (1980), the Supreme
Court upheld the validity of a prepublication review agreement signed
by a CIA agent. Snepp is the only authority upon which the prepubli-
cation review requirement can rest.
While each professor took issue with the holding in Snepp itself,
each recognized its precedential value. As a valid precedent, they
nevertheless concluded that Snepp does not support the use of pre-
publication review agreements outside intelligence agencies and the
,,special nature of the employment relationship between agents like
Snepp and an agency like the CIA." 63
Each professor dismissed the argument that the Directive only im-
poses a prior censorship system on government employees and that
it is done contractually (therefore, arguably, voluntarily) as irrelevant
to First Amendment considerations. They concluded that the extension
of this prior restraint could only be justified under the Constitution
if an extraordinary governmental need for such a drastic policy is
demonstrated.
In light of the GAO testimony revealing that only two actual un-
authorized disclosures of SCI through writings and speeches have oc-
curred, it is clear that an extraordinary need for this drastic approach
does not exist. The Interdepartmental Report which recommends the
use of prepublication review deals primarily with problems in inves-
tigating leaks and finding their source. However, finding the source
of a leak is not a problem in the context of disclosures through pub-
lications by employees or former employees. The prepublication review
agreements were recommended apparently as an afterthought, even
though there was simply no evidence mentioned that overt disclosures
through publications by employees are a serious problem. As Pro-
fessor Emerson writes, "[t]he conclusion is inescapable that the gov-
ernment can adequately protect national security without doing such
excessive damage to the system of free expression." 64
Instead, as Professor Powe indicates, the prepublication review rec-
ommendation rests ". . on a misreading of Snepp [whereby] some-
one wrongly concluded that censorship was a public good." He cautions
since there cannot be a dispute that what has been set up is a
system of censorship, one would do well to recall exactly why censor-
ship has a bad name in our society." 65 The evils of censorship were
fully discussed by the numerous other witnesses at the hearing.
5. Censorship Is Not a Public Good
The list of arguments against prior restraints and censorship is
lengthy and well known. Aside from the potential for manipulation
and political abuse that a prior restraint system creates for those in
government who would endeavor to maliciously control speech for
their advantage, such a system has many harmful consequences even
when implemented and carried out with the most noble of intentions.
Prior restraint systems inevitably result in too much censorship and
will restrict the flow of important non-classified information. Prior
restraint programs cause delay, often when the value of the speech
e Id., page 19.
Written statement of Professor Emerson, page 14.
Testimony of Lucas Powe, page 6.
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depends upon its timeliness. Further, prior restraint programs deter
speech from the outset by providing a disincentive for the effected
speaker to participate in public debate.
Many of the witnesses at the hearings testified to these and other
problems inherent in the prepublication review program mandated
by the Directive. Several former high level government officials testi-
fied from their perspective as ones who would have been subjected
to such censorship had the Directive been in effect during their serv-
ice. Former Deputy Secretary of State, George W. Ball, indicated
in his testimony that the Directive will . .. "require the establish-
ment of a censorship bureaucracy far larger than anything known
in our national experience." 66
Further, urging the Committee to express its opposition to the
Directive, lie concluded that . . .
The obvious effect of this Directive will be to discourage
anyone who has served the Government in a sufficiently
elevated position to have access to sensitive information from
participating actively in the public discussion of American
policy, even though he may be uniquely qualified to offer
illuminating comments and advice. The onerous mechanics
of such censorship and the delay they would impose would
render impossible informed comments on evolving events and
greatly inhibit the bringing to bear of past experience on
the formulation of policy.d'
Former Assistant Secretary of State for International Organi-
zation Affairs, Charles William Haynes, also expressed disapproval
of the Directive in his testimony. As the current Editor of Foreign
Policy, he emphasized the problem of delay that the prepublication
review agreement creates for free and open debate and said:
The essence of public-policy information is not only sub-
stance, but timing. The 30-day provision alone effectively
grants a standing administration critical control over the
course of debate on a large number of key public-policy is-
sues. My own magazine will suffer gravely if these regula-
tions are enacted. Over the 13 years of its existence, foreign
policy has received 34 percent of its articles from former
officials, or 222 articles from these authoritative specialists."
Former Assistant Secretary of State for Human Rights and Hu-
manitarian Affairs, Patricia Iberian, currently representing the Fund
for Free Expression, concurred with the others' assessment that the
Directive should be stopped. In preparation for the hearing, the Fund
conducted a survey which revealed that in 1982, more than three hun-
dred articles written by current or former officials appeared in the
pages of five national papers and that most would have been subject
to prior censorship under the Directive's requirements.
Mr. Dennis Hays, President of the American Foreign Service As-
sociation, which represents 11,000 members of the U.S. Foreign Serv-
ice, testified that :
w Testimony of George Ball, page 2.
~Id.
Testimony of Charles William Maynes, page 6.
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Approximately 4,500 State Department employees have
access to Sensitive Compartmented Information . . . [and
would therefore] be required to submit for prepublication re-
view anything they write in any form and for any forum that
may happen to relate to SCI.?
He urged the Committee on behalf of the Association to oppose the
Directive indicating that if the "Directive is allowed to go for-
ward, there can be no expert commentary on issues of intense national
importance . . . , except from official government sources." 70
Dr. Robert L. Park, a professor of physics at the University of
Maryland and former government scientist, related the effects the Di-
rective would have on academics who enter government service. Rep-
resenting the American Association of University Professors, Dr. Park
stated that:
Each year countless numbers of professors representing a
wide range of academic disciplines serve the government ...
[and to accomplish the ends of the directive] government
agencies would need to establish a vast apparatus for admin-
istration and enforcement.71
He emphasized that the Directive will result in fewer qualified
academics entering government service. "The Directive can also be ex-
pected to take its toll by reducing the willingness of academics to
accept government responsibilities." 72 He urged that the Directive
be withdrawn.
The chilling effect the prepublication review requirement would
have on legitimate free speech was perhaps anticipated best by those
who testified on behalf of the press-both the broadcasting and print
media.
Representing the Society of Professional Journalists, Bob Schieffer
of CBS News and Bruce Sanford, counsel to the Society, testified
against the Directive. Pointing to the existing criminal statutes pro-
hibiting the disclosure of classified information, they indicated that
the Directive is, "[a]s unneeded as it is unprecedented and ill-con-
ceived." 78
Commenting directly on the effect the Directive will have on jour-
nalism, Bob Schieffer commented :
The impact on journalists would be real and rude and un-
reasonable ... The nebulous net of the Directive would compel
virtually all government officials to say nothing for fear of
possibly offending some bureaucratic censor's interpretation
of the scope of the Directive ... The public's understanding
of fast breaking news events would particularly suffer.74
Ralph P. Davidson, Chairman of the Board of Time, Inc., indicated
that the Directive is "a critically flawed rule ... and [that] it should
be rescinded." 75 According to Davidson, the Directive "will make it
m Testimony of Dennis Hays, page 3.
7? Id., page 4.
71 Testimony of Robert Park, page 6.
72 Id., page 8.
"Testimony of Bruce Sanford, page 1.
74 Testimony of Bob Schaefer, page 8.
75 Testimony of Ralph Davidson, page 7.
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substantially more difficult to present [current and former govern-
ment official's] views" which is central to the exercise of the journal-
ists' responsibility "to inform the public fully." 76
Others-Charles Rowe, editor and co-publisher of the Free Lance-
Star, and representing the American Society of Newspaper Editors;
Jack Landau, representing the Reporters Committee for Freedom of
the Press; and Heather Gant Florence, Vice President, Secretary and
General Counsel of Bantam Books, representing the Association of
American Publishers-reiterated the disasterous consequences that
the prepublication review requirement would have on free speech and
national public debate through the media.
III. FINDINGS
Based on a complete review of the available scientific evidence on
polygraph use and an analysis of the effects of the prepublication re-
view requirement contained in the President's National Security Deci-
sion Directive, the Committee makes the following findings : 77
1. There is no scientific evidence to demonstrate the validity of poly-
graph use for screening purposes of any sort, be it for investigations,
or for pre-employment, pre-clearance, or aperiodic testing.
2. Use of the polygraph for screening purposes runs a great risk of
incorrectly identifying a large number of persons as being deceptive.
3. OTA found scientific support for the validity of polygraph ex-
aminations only in narrowly focused criminal investigations where
conventional investigative methods had identified a very few suspects
and detailed information was already known about the crime itself.
These scientific studies of polygraph use in criminal investigations
nevertheless vary greatly in their conclusions on polygraph validity.
4. Because there is no physiological response unique to lying, the
polygraph cannot distinguish between people who are lying and those
who are merely afraid or nervous. Therefore, the policy of forcing em-
ployees to submit to polygraphs by the threat of adverse consequences
is dangerous and may result in high rates of misidentification.
5. The prepublication review agreements required by the Presi-
dent's Directive constitute an unwarranted prior restraint in violation
of the First Amendment.
6. In the past five years, there have been 21 unauthorized disclosures
of classified information by officials or former officials through pub-
lications or speeches. Of these, only two have involved SCI and only
two have occurred in the Departments of State and Defense where the
requirement will have its greatest application.
7. To counter this rare and specific type of disclosure, lifelong pre-
publication review agreements will be required of 127,750 Federal
employees and contractor personnel with access to SCI.
8. These prepublication review agreements require the creation of a
large bureaucracy to censor the writings and speeches of former Gov-
ernment employees. As with any government censorship of political
speech, the potential for political abuse is great. The prepublication
review requirement poses a serious threat to freedom of speech and na-
tional public debate.
76 Id., page 4.
NOTE.-These findings do not involve or relate to the Central Intelligence Agency or
the National Security Agency.
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IV. CONCLUSIONS AND RECOMMENDATIONS
Concerning the Administration's proposals to expand the use of and
reliance on polygraph examinations, the Committee concludes that
there is no scientifically acceptable evidence to support these changes
and good reason to believe they will result in high error rates, thereby
causing harm to many innocent people and our government. While
there has been acceptable research conducted on the use of polygraph
examinations in the context of narrowly defined criminal investiga-
tions, the scientific conclusions on its validity in this area are conflict-
ing. There is, however, no acceptable scientific evidence to support the
polygraph's use in "dragnet" style screening in investigations or in
such areas as pre-employment, pre-access, or aperiodic testing. Further
coercing submission to polygraph exams in any context may seriously
impair any validity the test may have.
The President's Directive and the proposed revisions to the DOD's
regulation on polygraphs will allow its use in these unsupported and
highly questionable ways. Section 5 of the President's Directive creates
the possibility of polygraph use in "dragnet" style investigations. The
proposed changes to the Department of Defense's polygraph directive
authorize testing in screening situations-pre-employment, access and
aperiodic. In these areas the polygraph's validity is expected to be
very low and the potential for misidentification very high. Both the
President's and the DOD proposed revisions change polygraph exam-
ining from a voluntary to an involuntary process by coercing submis-
sion through the threat of adverse consequences, thereby further sacri-
ficing accuracy.
With regard to the prepublication review requirement mandated in
the President's Directive, the Committee concludes that this censor-
ship poses a serious threat to freedom of speech and debate cherished
in our nation. Its imposition is unwarranted; the Committee does not
find a compelling governmental need for this prior restraint on free
speech.
The Committee, therefore, makes the following recommendations :
1. It is recommended that the proposed revisions to the Department
of Defense Directive on polygraph use should not be implemented.
2. It is recommended that sections lb and 5 of the President's Di-
rective on Safeguarding National Security Information should be
rescinded.
3. It is recommended, in the event that the foregoing recommenda-
tions are not followed by the Administration, that the Congress should
enact legislation prohibiting these changes in polygraph use and the
infringement on free speech and political debate the Administration's
initiatives entail.
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ADDITIONAL VIEWS OF HON. GLENN ENGLISH
I agree wholeheartedly with the conclusions, findings, and recom-
mendations of this report. I am taking this opportunity to file addi-
tional views in order to make some related points about the policies
of the Reagan Administration with respect to the public availability
of government information.
The Reagan Administration has established a clear and consistent
pattern of restricting the availability of government information to
the public. The range of Reagan anti-disclosure activities is sweeping.
It includes administrative limitations on the Freedom of Information
Act and legislative proposals to cutback on the Act's utility; expansion
of the government's authority to classify information for "national
security" reasons; deemphasis of the declassification of historical docu-
ments and other information that no longer warrants continued classi-
fication; proposals to restrict the availability of information under
the Privacy Act of 1974; decrease in the resources devoted to federal
statistical activities; cutbacks on the number and availability of gov-
ernment publications; imposition of restrictions on the ability of
reporters to speak with government officials; increased government
efforts to manage news and to prevent the press from reporting on
major government actions such as the invasion of Grenada; regis-
tration of films from foreign countries dealing with issues of public
interest; and denials of visas to selected foreign nationals. The poly-
graph and pre-publication review proposals contained in NSDD-84
are among the most recent additions to this list."
One of the most distressing aspects of these information restrictions
is the failure of the Reagan Administration to offer a credible explana-
tion and justification for the new policies. The report makes this point
in the case of both polygraphs and prepublication review. For poly-
graphs, the study by the Office of Technology Assessment demonstrates
that there is no scientific evidence to demonstrate the validity of poly-
graph use for the purposes proposed by NSDD-84. Since polygraphs
may not work, it is difficult to accept at face value the Administra-
tion's explanation for increased use of polygraphs.
For pre-publication review, the Administration has failed to demon-
strate that there is a problem with the unauthorized disclosure of
sensitive compartmentalized information by those whose writings will
be subject to review. The report concludes that "it is clear that an
extraordinary need for this drastic approach does not exist." Pre-
publication review is nothing more than a solution in search of a
problem. What are the Administration's real reasons for the adoption
of pre-publication review?
, The Reporters Committee for Freedom of the Press has accused the Reagan Administra-
tion of ?'a coordinated campaign to impose content censorship and information restriction
on an entire range of Government information " The Reporters Committee has com-
piled a list of Administration activities that are part of this campaign, and this list has
been reprinted in Oversight of the Privacy Act of 1974: Hearings before a Subcomm. of the
House Comm. on Government Operations, 98th Cong., 1st Sess. 321-23 (1983).
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The same failure to fully explain and justify changes in information
disclosure policies characterized the Reagan Administration's 1982
Executive Order on Security Classification. In a report reviewing the
new security classification policy, this Committee found that the
Reagan Administration failed to provide a full and complete ex-
planation of the changes that were made by Executive Order 12356.
The Committee also found that :
Many of the explanations offered after the order was signed
by the President were inadequate, inconsistent, incomplete, or
not credible. It remains uncertain why many of the changes
were made, and there is substantial doubt that the changes
could be justified .2
These same comments seem fully applicable to NSDD-84.
There is some evidence to confirm the suspicion that the need for in-
creased protection of sensitive information is not the primary motiva-
tion of the Reagan Administration for imposing restrictions such as
pre-publication review. The Administration has refused to adopt other
measures designed to increase security over the same type of infor-
mation that is the subject of NSDD-84.
A recent report by the General Accounting Office addressed some
security issues surrounding special access contracts at the Department
of Defense.3 These special contracts are supposed to be used to provide
additional security for sensitive information. Most of the contracts in-
volve sensitive, compartmentalized information (SCI). The protec-
tion of SCI is, of course, the stated purpose of the pre-publication re-
view provisions of NSDD-84.
GAO found that the special access contracts may have been used
for reasons other than the protection of sensitive information. GAO
found some evidence that the special contracting procedures were used
by one component of DOD to keep another component from knowing
about the project rather than to ensure the security of the information.
GAO also found evidence that the special contracts were used to pre-
clude someone from identifying the military service that awarded the
contract and the amount of money being spent. In other cases, it ap-
peared that the special contracts were used to expedite procurements
and to facilitate sole-source awards. An Administration that has been
so zealous in creating new programs to restrict public disclosure of
information should be equally careful to ensure that secrecy programs
are not being used to hide bureaucratic waste and inefficiency.
Other GAO findings and recommendations related to the adminis-
trative oversight of contracts involving SCI. GAO found the need for
better control of special access contracts involving SCI and recom-
mended that DOD conduct threat analyses for facilities containing
SCI and that the Defense Investigative Service be given increased
responsibility for inspection of such facilities.
These simple, basic recommendations, made by the GAO after a
thorough examination of the problems of SCI contracts, were designed
to ensure appropriate levels of security for SCI. The recommendations
a Committee on Government Operations, Security Classification Policy and Executive
Order 12356, H.R. Rept. 97-731, 97th Cong., 2d Sess. 42 (1982).
General Accounting Office, Further Improvements Needed in Department of Defense
Oversight of Special Access (Carve-Out) Contracts (GGD-83-43) (Feb. 18, 1983).
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were rejected by DOD. The same Administration, however, rushed to
impose new and massive censorship programs in the name of increased
security notwithstanding the absence of any significant evidence that
there was a problem that the censorship was intended to solve.
The issues raised by this GAO study are only a small part of the
broad picture of the protection of SCI. Of course I agree that we
must have reasonable protection for information that is truly vital to
our national defense and foreign policy. However, I also believe that
the Reagan Administration had an obligation to exhaust every se-
curity alternative before even considering the establishment of an un-
precedented censorship program of dubious constitutionality. The re-
sponse to the GAO report shows that, for at least one category of SCI,
there were some stones that were left unturned.
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ADDITIONAL VIEWS OF HON. FRANK HORTON, HON.
LYLE WILLIAMS, HON. WILLIAM F. CLINGER, JR., HON.
JUDD GREGG, AND HON. TOM LEWIS
We support the use of the polygraph in the non-intelligence depart-
ments and agencies of government if it is applied on a voluntary basis
by expert personnel as one of several investigative methods in highly
structured investigations where there is sufficient evidence that the
person in question may have broken the laws governing the use and
protection of classified information.
We are persuaded by evidence presented to the Committee by the
Office of Technology Assessment that the polygraph is of highly
dubious value if employees are coerced into its use or if it is used
in an unfocused manner without the benefit of more standard in-
vestigative techniques to confirm results.
Because pre-employment, pre-access, aperiodic, and specific issue
screening are by their very nature less structured and more widely
focused, the validity of the polygraph in these instances is question-
able and its use may result in high rates of misidentification causing
confusion in government agencies and harm to innocent people.
The use of the polygraph in pre-employment, pre-access, aperiodic,
and specific issue screening at NSA and CIA does not automatically
justify its use elsewhere. Official government policy condoning the
use of the device in these ways in the non-intelligence agencies of
government should not be done without conclusive scientific support
for its validity and proper safeguards to ensure its appropriate use.
We feel that the regulations currently governing the use of the
polygraph by the Federal Bureau of Investigation provides appro-
priate guidance for the use of this device in the non-intelligence agen-
cies of government. That regulation prohibits the "use of the poly-
graph for dragnet-type screening of large numbers of suspects or as
a substitute for logical investigations by conventional means." It al-
lows polygraph examinations only when "there is reasonable cause to
believe that the person to be examined has knowledge of or was in-
volved in the matter under inquiry or investigation, or if the person
is withholding information relevant to the inquiry or investigation."
Concerning the lifelong prepublication review requirement, we
agree: (1) that there is no evidence presented to the Committee to
indicate that there exists a serious problem of former Government
employees divulging sensitive compartmented information through
published materials; (2) that a compelling overriding governmental
need for prior restraint has not been established; and, (3) that the
few instances of unauthorized disclosure do not, on balance, justify
or warrant the imposition of a lifelong censorship system.
FRANK HORTON.
LYLE WTLT,TAM9.
WILLIAM F. CLINGER, Jr.
JUDD GREGG.
TOM LEWTS.
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DISSENTING VIEWS OF HON. JOHN N. ERLENBORN, HON.
THOMAS N. KINDNESS, HON. ROBERT S. WALKER, HON.
DAN BURTON, HON. ALFRED A. (AL) McCANDLESS, AN D
HON. LARRY E. CRAIG
We believe the debate that has been waged on NSDD 84 and I)OI)'s
proposed revision of its polygraph policy can be reduced to the follow-
ing questions :
(1) Should the government, in agencies other than the CIA and
NSA, expand its use of the polygraph for purposes of pre-employment,
pre-clearance, and aperiodic testing?
(2) Should adverse consequences follow the refusal to submit to
such polygraph testing?
(3) Should a lifelong prepublication requirement be required of
employees of agencies other than the NSA and CIA who have access
to Sensitive Compartmented Information?
In contrast to the majority's conclusions, we answer affirmatively on
the first two questions and offer a qualified "yes" on the third. We
believe, simply, that the protection of classified information-particu-
larly Sensitive Compartmented Information-is important enough to
warrant the restrictions proposed by the current Administration.
In response to the first question, we note with some interest that the
majority failed to argue with the polygraph policy at NSA and CIA.
We cannot help but conclude that, if it is good enough for NSA and
CIA employees who have access to classified information, the Presi-
dent's proposed polygraph policy is good enough for all other Federal
employees who have similar access to classified information. Classified
information, after all, is classified information regardless of the agency
involved.
The majority rests its case on the argument that because the scientifi-
cally acceptable evidence does not conclusively demonstrate the valid-
ity of the polygraph, the device should not be used. The issue is not
this simple. While individual studies on polygraph validity may show
a wide variation, there is clear scientific consensus on the main point :
polygraph examinations produce statistically significant indications of
deception or nondeception.
It is also noteworthy to point out that even though the absolute
validity of the device may be open to some question, its use at the NSA
and the CIA for many years suggests that the device is of some utility.
Unlike the majority, we believe that adverse consequences should be
considered as an appropriate response to an employee's refusal to co-
operate with a polygraph examination that is conducted in accordance
with the President's directive. Because. access to classified information
is an earned privilege, not a Constitutional right, we believe that any
employee who agrees to work with classified information should be
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prepared to be subjected to much greater scrutiny than the average
employee. Simply put, it goes with the territory.
The question about a lifelong prepublication review requirement
causes us some concern, but not because we disagree with the concept
of prepublication review for employees who have access to Sensitive
Compartmented Information. Once again, we believe that such a tough
process goes with the territory. We have some reservation, however,
about the lifetime provision of the non-disclosure agreement that ac-
companies NSDD 84. We believe that consideration should be given
to changing the lifetime provision to a time certain provision that
would run throughout a person's employment with the government and
for a reasonable period thereafter.
Because we do not take classified information lightly, we do not
take the President's interest in this area lightly. We applaud him for
his effort to tighten security and for his public recognition of the im-
portance of protecting our nation's national security interests.
Finally, we cannot help but point with some measure of satisfaction
to the majority's grudging acknowledgment that there is, indeed,
scientifically acceptable evidence that the polygraph does produce
valid results in narrowly focused investigations, particularly in crim-
inal investigations and particularly when it is used in conjunction
with other investigative techniques. Such an acknowledgment is light
years removed from the Committee's 1975 recommendation that "the
use of polygraphs and similar devices be discontinued by all govern-
ment agencies for all purposes."
We congratulate the majority for making such dramatic progress
in this area.
For these and other reasons, we reject the majority's report and we
register our firm endorsement of the President's initiatives in this
important area.
JOHN N. ERLENBORN.
THOMAS N. KINDNESS.
ROBERT S. WALKER.
DAN BURTON.
ALFRED A. (AL) MCCANDLESS.
LARRY E. CRAIG.
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