STATEMENT OF GENERAL RICHARD G. STILWELL USA (RET.) DEPUTY UNDER SECRETARY OF DEFENSE FOR POLICY BEFORE THE SUBCOMMITTEE ON CIVIL SERVICE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000300380003-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 14
• Document Creation Date: December 21, 2016
• Document Release Date: August 22, 2008
• Sequence Number: 3
• Publication Date: February 29, 1984
• Content Type: REPORT

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STATEMENT OF
GENERAL RICHARD G. STILWELL, USA (RET.)
DEPUTY UNDER SECRETARY OF DEFENSE FOR POLICY
THE SUBCOIR4ITTEE ON CIVIL SERVICE
COMMITTEE ON POST OFFICE AND CIVIL SERVICE
U.S. HOUSE OF REPRESENTATIVES
FEBRUARY 29, 1984
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Madame Chairwoman, L appreciate the opportunity on behalf
of the Department of Defense to provide our views on the two major
thrusts of H.R. 4681, to wit, use of the polygraph within
the federal government and the institution of prepublication
review requirements among federal employees. I shall first
address the polygraph.
At the outset of my remarks, to preclude any possible
misunderstanding, I want to emphasize that my testimony today
regarding OoD's proposed use of the polygraph has no relationship
to National Security Decision Directive 84. The proposed
changes to DoD policy were developed a full year before NSDD
84 was issued, and have entirely different purposes: NSDD 84
provided that departments and agencies should amend their
regulations to permit adverse actions against an employee who
refused to take a polygraph examination in a "leak" investigation.
The purpose of the DoD changes is to deter and detect espionage
against our most sensitive programs. Thus, it is important
for the subcommittee to understand that the proposed changes
to Defense policy regarding the polygraph were not affected
by the recent action of the President to suspend the
implementation of the polygraph provisions of NSDD 84 within
the executive branch.
Having clarified this, let me now turn to the bill before
the subcommittee.
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As we read the bill, Section 3 would prohibit use of the
polygraph with regard to the civilian employees of the
Department of Defense for any purpose other than a criminal
investigation or an investigation of an unauthorized disclosure
of classified information, except insofar as it may be used at
the National Security Agency, which is exempted from the bill
altogether.
If this reading is accurate, then enactment of this
legislation would prevent the Department from utilizing the
polygraph in ways it is currently being employed, as well as
preclude its use in ways being contemplated for the future.
To be more specific, the polygraph is currently used' in DoD
for several purposes not recognized by the bill: first,
to resolve derogatory information developed in background
investigations that cannot be resolved in any other way; second,
to ensure that intelligence sources, acting on behalf of DoD
intelligence components, are bona fide; third, for exculpatory
purposes; and fourth, for counterintelligence investigations
(where evidence of criminal conduct may not be present).
Moreover, the bill would preclude any future use of the
polygraph, regardless of how limited such use might be, as a
means of assessing civilian employees for access to highly
sensitive information. This would prevent Defense, or any
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other agency of the government, from implementing the limited
sort of program that Defense has had under consideration for
the last two years. I am appending to my statement a very
detailed explanation of the genesis and nature of that proposal,
but with your indulgence, let me briefly describe for you
its key features.
The primary change would be to permit a limited polygraph
examination, comprised solely of questions to determine
whether an individual is a spy for a hostile intelligence
service, prior to giving him access to the most sensitive
information held by the Department. Under this concept,
heads of Defense components, with the approval of my office,
could, if they saw tit, establish this sort of limited
examination -- excluding any questions of a personal
nature -- as a condition of access to information protected
within so-called "special access programs", as authorized by
Executive Order 12356. Under this proposal, however, no
action could be taken on the basis of a person's reactions,
as reflected on the polygraph charts, unless additional
investigation produced derogatory information concerning the
individual involved which in and of itself required action.
Exceptions to this rule would have to be approved by the
Secretary of Defense, or the Secretary of one of the military
departments. Furthermore, refusals to take such examinations
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could not be the basis for firing an employee. Any current
employee who :efused to take such an examination as a condition
of obtaining special access would either remain in his job,
or would be placed in a position of equal grade or pay within
DoD.
In addition, the DoD proposal includes stringent safeguards
to protect the rights of employees before, during and after
the conduct of the examination. No question could be asked
during an examination which had not been reviewed with the
subject previously. Legal counsel could be available to the
subject during the examination. Anyone who did not pass one
examination would be entitled to a second examination by the
same or a different examiner. The technical records of the
examination may not be disseminated outside the office
conducting the examination except as required by law. Other
safeguards are detailed in the longer paper I am submitting.
In short, Madame Chairwoman, we have made every effort
to devise a proposal for utilizing the polygraph that is
limited in terms of those who may be subject to it; limited,
in terms of the kinds of questions that may be asked; and
limited, in terms of its effects on a particular individual.
At the same time, we have provided as many safeguards for the
entire process as we can devise to ensure our employees are
treated fairly, and that their rights and privacy are protected.
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It is simply difficult for us to ignore, however, the
demonstrated utility of the polygraph at CIA and NSA, where
it has been successfully put to use for over twenty years.
One also cannot ignore the fact that our adversaries' efforts
to penetrate the defense and intelligence establishments
continue unabated, and, regrettably, have often been successful,
to the great detriment of the United States and her allies.
The cases of Boyce and Lee; William Kampiles; William Holden
Bell; Lt. Cook; CWO Joseph Helmich; and Geoffrey Prime are
recent reminders of the relentless nature of the espionage
threat, and indeed, the damage that can be inflicted by a
single individual. We can spend billions of dollars on
sophisticated military systems, communications systems or
intelligence-gathering programs, only to have them rendered
ineffective as a result of one person's treachery. We wonder,
then, whether it is wise to foreclose, as the Brooks bill
would do, one available means of coping with this insidious
threat. Of course, the polygraph is not a perfect tool.
But we believe it can be used to supplement other security
measures in a manner which protects the rights of federal
employees, while at the same time giving us indication of
potential security problems in our most sensitive programs
that we do not now have.
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It is noteworthy, in this regard, that the British
Government, in the wake of the Prime case, is itself exploring
a pilot project for the use of a limited polygraph program,
similar to that contemplated in Defense as a protection
against espionage. In her statement to the Parliament approving
this effort, Prime Minister Thatcher explained:
"The polygraph is the only measure
of which it could be said with any
confidence that it would have
protected GCHQ (the British equivalent
of NSA) from Prime's treachery,
either because it would have,
deterred him from applying to
join or would have exposed him in
the course of examination. In view
of this and the extreme gravity of
the damage done by Prime, the
Government accepts the Commission
recommendation that a full and
thorough pilot scheme be carried
out. The Commission recognizes
that a polygraph examination would be
seen by some as an unwarranted invasion
of their privacy, but we are dealing
with matters of the highest national
security, and those who have access
to the nation's most sensitive secrets
must expect to be subject to the most
rigorous vetting procedures."
This, in essence, reflects our position as well.
For this reason, we share the Administration's view that
the Brooks bill should not be enacted. Defense and other
federal agencies with highly sensitive responsibilities in
the national security area should have the latitude
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to utilize-the polygraph under very controlled circumstances
to prevent hostile penetrations.
Now, let me conclude with some brief remarks concerning
pre-publication review. H.R. 4681 would have the effect of
prohibiting the use of agreements with pre-publication review
requirements in them, except at CIA and NSA, and would rescind
any other such agreements which were already in effect.
In Defense, we did not implement the new non-disclosure
agreement, containing the pre-publication review requirement,
developed under NSDD-d4. We did, however, in March of 1982,
accede to the request of the Director of Central Intelligence
to use the CIA's uniform non-disclosure agreement, containing a
pre-publication review provision, within Defense as a condition
of access to Sensitive Compartmented Information or SCI.
Since March, 1982 and continuing currently, approximately
100,000 persons with SCI access in DoD excluding NSA have
signed this form. Although it imposes a lifetime obligation
to submit for review to the employing agency documents that
a person may write for publication which in his judgment may
contain SCI, relatively few have-refused to sign the agreement.
Although it is early to assess the impact of this agreement,
it does not to date appear to have had a significant impact.
Leaving NSA aside (where such agreements have been commonplace
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for many years), there have been only five documents submitted
for review under the SCI agreement DoD-wide, and none of
those involved former employees. To our knowledge, there
have been no instances of non-compliance by former employees
who have signed the agreement, although admittedly the agreements
have been in force for only a short time.
If the Brooks bill were enacted, it obviously would
have the effect of rescinding the old non-disclosure agreements
that have been signed in DoD since March, 1982 -- all 100,000
of them; and it would preclude their use in the future in
all DoD components, save NSA.
Whether former employees with SCI access should have a
lasting contractual obligation to submit materials which may
contain SCI for government review seems to us the issue.
While there are few cases to demonstrate a significant
problem -- that is, where former employees with SCI access
actually write about sensitive intelligence sources and
methods -- when these do occur, the existence of a non-
disclosure agreement or contract does provide the Government
with a remedy sanctioned by the Supreme Court in the Snepp
case that it otherwise would not have -- a civil cause of
action. Moreover, the review process in effect for some time
at CIA and NSA has in fact succeeded in preventing a considerable
amount of classified information from being disclosed to the public.
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We believe these benefits justify the establishment of the
pre-publication review requirement, and the imposition of a
lasting, albeit limited, obligation on former employees who
had SCI access,[is a judgInt that has been answered by this
Adminstration in the affirmative. H.R. 4681 would obviously
change that, and settle the issue for future Administrations
as well'
I will be pleased to answer any questions you may have.
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 CURRENTLY AUTHORIZED USES OF THE POLYGRAPH
__ n INT. HINT 7 D A TIV
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PROPOSED DIRECTIVE/REGULATION
Investigation of crimes punishable by death, or confinement for
one year or more.
Investigation of unauthorized disclosures of classified
information.
Resolution of serious allegations which might affect security
clearance that cannot be resolved through further investigation.
Military and civilian personnel assigned to the Central Intelli-
gence Agency.
No change.
No change.
No change.
To test agents, sources or operatives in foreign intelligence or No change.
counterintelligence activities.
Civilian and contractor personnel for employment, assignment or
detail to the National Security Agency (NSA). Military personnel*
after assignment or detail, only in connection with highly
compartmented duties.
nel security investigation of foreign
---
o
i
All military personnel, upon assignment or detail to NSA, are subject to
counterintelligence scope polygraph examination.
Initial and aperiodic, counterintelligence scope, polygraph examination.
n pers
assist
To nationals when background information cannot be otherwise verified.
When requested by the subject of a No change.
or personnel security investigation
COUNTERINTELLIGENCE POLYGRAPH EXAMINATION
not current/ provide for a separate, Initial and aperiodic (random selection) minationdoficivilian, informatmilitaion
policy does currently and contractor personnel for access to specifically
DoD
d S retar of
c
U
lh examination
0u scope, poygrap.
n er e
within a special access program, approved by the Deputy
Defense for Policy (DUSD (P)).
In exceptional cases, for interim access to Sensitive Compartmented Information,
prior to completion of the background investigation.
For employment in or assignment to critical intelligence positions in the
Defense Intelligence Agency, designated by the Director, DIA.
Since the 6 August 1982 Carlucci memorandum, all military personnel at NSA are subject to aperiodic (random selection), counterintelligence
scope, polygraph examination. The Carlucci memorandum remains in effect at NSA because of congressional exemption.
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 CURRENTLY AUTHORIZED USES OF THE POLYGRAPP PROPOSED DIRECTIVE/REGULATION
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ADVERSE ACTION* BASED ON POLYGRAPH EXAMINATION CHARTS
Action shall not be taken against an individual solely on the When deception is indicated on polygraph charts, the examiner will attempt to
basis of the results of an analysis of polygraph charts. resolve the matter with the examinee.
When the indicated deception is not resolved with the examinee at the time of
initial polygraph examination, the results of the examination shall be
forwarded to the requesting agency.
If, after review by the requesting agency, the individual's clearance is still
in doubt, he will be given the opportunity for reexamination.
If, after further examination, the doubt remains, a comprehensive field
investigation shall be undertaken to resolve the indicated deception.
If the investigation produces no actionable derogatory information, there
will be no change in the individual's clearance status.
Exception to this provision must be personally approved by the
Secretaries of the Military Departments; Director, National Security
Agency; or in the case of other DoD Components, the Secretary or Deputy
Secretary of Defense. The criteria for exception is limited to:
(1) access to highly sensitive information where time urgency does not
permit completion of the investigation, or
(2) access to information of such extreme sensitivity that access under
the circumstances poses an unacceptable risk to the national security.
ADVERSE ACTION BASED ON REFUSAL TO UNDERGO POLYGRAPH EXAMINATION
Adverse action shall not be taken against a person for refusal Adverse ton will not taken on the basis of refusal in criminal or
to take a polygraph examination. counterintelligence cases.
Special access program refusals may result in denial of access but shall not
affect a person's grade or pay.
Applicants for DIA critical intelligence positions, CIA "staff-like" access,
or any NSA duties, who refuse to take a polygraph examination shall be
non-selected.
* Adverse action includes any of the following: denial or revocation of security clearance, denial or withdrawal of access to classified
information, termination of employment, reduction in pay or grade, transfer or reassignment to a nonsensitive position, or nonselection
or nonassignment to a sensitive position.
2
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 CURRENTLY AUTHORIZED USES OF THE POLYGRAPH PROPOSED DIRECTIVE/REGULATION
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SAFEGUARDS TO PROTECT RIGHTS OF INDIVIDUALS
Timely notification of the date, time and place of the No change.
polygraph examination.
Advised of right to obtain and consult with legal counsel Expanded to clarify the right to have legal counsel available prior to,
prior to the examination. during, and after the polygraph examination. Right to terminate the
polygraph examination at any time.
Advised of privilege against self-incrimination. No change.
Probing of a person's thoughts or beliefs or conduct which No change.
have no relevance to the investigation are prohibited.
(E.g., religion, racial matters, political beliefs and
affiliations of a non-subversive nature.)
No relevant questions may be asked during the examination that No change.
have not been reviewed with the examinee prior to the examination.
the
uesquestions s necessary
DoD policy does not currently specify limitations on technical Technical
questions. to avoid eq $+ degrading
ng polygraph examinations must be
tqquestions
gtscreenscreening
DoD policy does not currently limit relevant questions to Relevant
eduduriduring
estionsbasasked
counterintelligence topics.
Adverse action may not be taken solely on the basis of No change.
polygraph charts.
Prior to the examination, examinee must be advised of the No change.
nature and characteristics of the polygraph instrument,
including an explanation of the physical operation of the
instrument and the procedures to be followed during the
examination.
Examinee must be advised if the polygraph examination area No change.
contains a two-way mirror or other device, through which the
examinee may be observed and if other devices such as those
used in conversation monitoring or recording, will be used
simultaneously with the polygraph.
A polygraph examination shall not be conducted if, in the opinion No change.
of the examiner, the examinee is mentally or physically fatigued,
unduly emotionally upset, or rendered unfit to undergo an exam-
ination because of excessive use of a sedative, stimulants or 3
tranquilizers.
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Polygraph examination technical reports* shall be retained by the office No change.
conducting the polygraph examination and shall not be disseminated
outside the Department of Defense except as required by law.
Polygraph examination results** may be made available to: No change.
Officials within DoD responsible for personnel security,
intelligence, counterintelligence, law enforcement and the
administration of justice.
Law enforcement officials outside DoD when the examination
has been conducted in connection with the investigation of
a criminal offense or reveals criminal activity on the part of
the individual examined.
The examinee or his or her legal counsel, upon request.
The National Archives and Records Service, General Services
Administration upon retirement of the file.
Polygraph examinations shall be administered only by DoD polygraph No change.
examiners who have been selected, trained and certified in accordance
with established DoD policies and procedures.
No specific provision contained in current directive for appeal of Any adverse consequences in cases involving the polygraph are
adverse actions in cases involving use of the polygraph. appealable in accordance with applicable personnel and security
appeals procedures.
* Polygraph examination technical reports include pretest preparations, the examiner's notes, examination charts, and other technical details
of the examination.
** Polygraph examination results include a synopsis of the examination, the relevant questions asked, the subject's answers, the examiner's
opinion concerning truthfulness or deception, and any admissions made by the examinee during the examination.
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