The Office of the Inspector General (OIG) conducted this review of polygraph programs in the Department of Justice (Department) to develop an in-depth description of the regulatory requirements governing the use of polygraph examinations, the components’ management and use of polygraph examinations, the Department’s polygraph policy, and oversight mechanisms for ensuring that the components conduct and use polygraph examinations in accordance with professional and technical standards. In this introductory section, we describe the history and current status of federal policies regarding the use of polygraph examinations, polygraph examiner training and quality standards, and recent legislation relevant to polygraph examinations. We also describe efforts to develop policy within the Department regarding polygraph usage. We next describe the types and uses of polygraph examinations, provide general information on the use of polygraph examinations in the Department, and describe how we conducted our study of the Department’s operations.
The results section of the review contains detailed descriptions of the polygraph programs of the four Department components that administer polygraphs: the (1) Federal Bureau of Investigation (FBI); (2) Drug Enforcement Administration (DEA); (3) Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); and (4) OIG. We also provide a summary description of the uses of polygraph examinations by seven components that do not directly administer their own polygraph programs but use polygraphs conducted for them by other agencies or contractors. These components are the Department’s Criminal Division, Justice Command Center, Antitrust Division, National Drug Intelligence Center, Office of Professional Responsibility, Federal Bureau of Prisons, and U.S. Marshals Service.
A polygraph is an examination process that uses a diagnostic instrument capable of measuring and recording a subject’s respiratory, electrodermal, and cardiovascular reactions.9 The theory behind polygraph testing is that physiological reactions exhibited by subjects as they are responding to questions generally vary when subjects are telling the truth and when they are being deceptive. By enabling an examiner to compare a subject’s physiological reactions when responding to different questions, a polygraph examiner can detect reactions that may indicate deceptive responses to specific questions. These indications can then be used to either corroborate or challenge information provided by the subject or developed during an investigation.
As of July 2006, 24 federal agencies in 11 major departments of the federal government had polygraph programs. Those agencies, which employ approximately 600 federal polygraph examiners, use polygraph examinations as a tool in making pre-employment and personnel security decisions; investigating misconduct, criminal cases, and security violations; and providing operational support such as vetting foreign sources and validating intelligence sources. In addition, many agencies without a polygraph program use the results of polygraph examinations conducted by other agencies.
Historical Background of Federal Policy Governing the Use of Polygraph Examinations
Our review determined that the Executive Branch’s polygraph policy originated with an undated memorandum signed by President Lyndon B. Johnson (Johnson Memorandum).10 In this memorandum, President Johnson adopted the findings of an interagency committee established in 1965 to examine the use of polygraphs in the federal government. The Johnson Memorandum prohibited the use of polygraphs by federal agencies except for (1) pre-employment screening, personnel investigations, and intelligence and counterintelligence operations; (2) criminal investigations; and (3) research and development.11
Under the terms of the Johnson Memorandum, however, an Executive Branch agency could not use polygraphs for employment screening, personnel investigations, or intelligence and counterintelligence operations unless the Chairman of the Civil Service Commission (now the Office of Personnel Management (OPM)) certified that the agency had an intelligence or counterintelligence mission directly affecting national security. If the Chairman so certified, the agency had to prepare regulations governing the use of polygraphs. The Johnson Memorandum also provided detailed criteria for agency regulations governing polygraph use in the context of employment screening and personnel investigations, and required that those regulations be approved by the Chairman of the Civil Service Commission. To gain approval, such regulations had to contain, at a minimum:
Specific purposes for which the polygraph could be used, the types of positions for which it would be used, and the officials authorized to approve such examinations.
A directive that the person to be examined was to be informed as far in advance as possible of the intent to use the polygraph and of:
Other devices or aids to the interrogation that could be used simultaneously with the polygraph, such as voice recordings, etc.
The person’s privilege against self-incrimination and right to consult with legal counsel or to secure other professional assistance prior to the examination.
The effect of the polygraph examination or the subject’s refusal to take such examination on the subject’s eligibility for employment. The subject was to be informed that refusal to consent would not be made part of the subject’s personnel file.
The characteristics and nature of the polygraph device and examination, including an explanation of the physical operation of the device, the procedures to be followed during the examination, and the disposition of the information developed.
The general areas of all questions to be asked during an examination.
A directive that no polygraph examination would be given unless the person to be examined had voluntarily consented in writing to be examined after having been informed of the above.
A directive that questions to be asked during a polygraph examination had to have specific relevance to the subject of the particular inquiry.
Adequate standards for the selection and training of examiners, keeping in mind the government’s objective of ensuring protection for the subject of an examination and the accuracy of the polygraph results.
The Johnson Memorandum’s criteria for regulations related to the use of polygraphs for intelligence and counterintelligence operations were considerably less detailed. The memorandum required that after the Chairman of the Civil Service Commission certified that the agency had an intelligence or counterintelligence mission directly affecting national security, the agency prepare regulations and directives governing the use of polygraphs in that context and that the agency head approve those regulations.
The Johnson Memorandum permitted Executive Branch departments and agencies to use polygraphs in criminal investigations, as long as they had promulgated regulations governing their use and had obtained approval of those regulations from the Attorney General. According to the Johnson Memorandum, those regulations were to contain, at a minimum:
The range of criminal matters in which the polygraph would be used.
A statement that no polygraph examination would be given unless the person to be examined had voluntarily consented in writing after being fully informed of:
the subject’s privilege against self-incrimination,
the subject’s right to consult a lawyer prior to the examination,
the subject’s right to refuse to submit to the examination, and
the characteristics and nature of the polygraph machine and examination, including an explanation of the physical operations of the machine, the procedures to be followed during the examination, and the disposition of information developed from an examination.
An affirmation that in the case of an employee of the federal government refusal to consent to a polygraph examination would not lead to any adverse action against the employee and would not be made a part of the employee’s personnel file.
Adequate standards for the selection and training of examiners, keeping in mind the government’s objective of ensuring protection for the subject of any examination and the accuracy of polygraph results.
However, documents from the Johnson Library strongly suggest that the Johnson Memorandum itself, while signed, was never issued.12 Instead, it appears that President Johnson accepted the advice of his staff that he implement the interagency committee’s recommendations by requiring the Civil Service Commission to issue a directive setting forth the policy.
Consequently, the formal Executive Branch policy for polygraph examinations was issued by the Civil Service Commission as Chapter 736, Section 2-6 of the Federal Personnel Manual (FPM).13 This section, entitled “Use of the Polygraph in Personnel Investigations,” tracks much of the language of the Johnson Memorandum, with some important changes. The OPM regulations specifically excluded excepted service employees (such as those in the FBI and the Central Intelligence Agency (CIA)) from its oversight. We also found that in 1991, OPM reaffirmed that these provisions of the FPM remained in effect.
However, the FPM was withdrawn in 1995 as a part of an effort to reduce government regulations. At that time, an OPM notice stated that “the guidance it [the FPM] contained is no longer binding upon Federal agencies.”14 Since 1995, no comprehensive framework governing the administration of polygraph examinations in the Executive Branch has been issued to replace the provisions of the FPM.
It appears that various agencies, including OPM and the Department, continued to rely on the guidance contained in the FPM or the Johnson Memorandum.15 For example, in 2004, in response to inquiries from the OIG about an ongoing investigation related to alleged misconduct by a Department attorney, the Department’s Justice Management Division (JMD) stated that the Johnson Memorandum was still in effect and therefore the Department could not compel attorneys to take a polygraph examination.
We also found that some agencies that used to seek OPM’s yearly approval of their polygraph policies under the FPM, including the DEA and ATF, continued to submit their policies for approval, even after the FPM was retired in 1995. Moreover, OPM has advised these agencies that, although the FPM has been abolished, it has not been superseded and the guidance contained in the FPM provides a “safe harbor” from investigation by OPM for those agencies that had been following the FPM in preparing and obtaining approval for their polygraph policies.
Our reading of the law suggests that notwithstanding their continued use by some agencies, neither the Johnson Memorandum nor the FPM still governs the use of polygraphs in the Executive Branch. Instead, Executive Branch polygraph policy today relies on a patchwork of Executive Orders and other presidential policy statements, case law, regulations, and administrative decisions, several of which we describe below.
Current Authorities and Guidelines for Pre-Employment and Personnel Security Screening Polygraphs on Competitive Service Employees
The following sections describe the current OPM guidance on its oversight of polygraph programs; a 1999 Memorandum of Agreement containing operating guidelines that was signed by most agencies that conduct polygraph examinations; quality assurance and training standards established by the Department of Defense’s Polygraph Institute; and requirements related to polygraph programs contained in the Intelligence Reform and Terrorism Prevention Act of 2004.
Office of Personnel Management. In April 2006, OPM’s Office of General Counsel told us that it had reviewed OPM authorities for overseeing management of the competitive service and reaffirmed that OPM continues to have the authority and responsibility under Civil Service Rules (Rule II and Rule IV) to review executive agencies’ use of polygraph examinations for pre-employment and personnel security screening for the competitive service positions.16 An OPM official who reviews agency requests to use pre-employment and personnel security screening polygraphs for competitive service employees told us that a requesting agency must still justify to OPM its need to use polygraph examinations based on a mission that directly affects the national security, submit its governing policies and regulations for OPM review, and stipulate to several conditions, such as participation in the federal quality assurance program, before OPM will approve the use of polygraph examinations. He also said that OPM has never extended its procedural requirements for using pre-employment and personnel security polygraphs for competitive service employees to their use for excepted service employees.
OPM does not conduct reviews of executive agencies to verify that they are using polygraph examinations in compliance with OPM and Civil Service rules. However, OPM’s Center for Merit System Compliance does conduct reviews of agency compliance with federal requirements for managing personnel security, suitability determination, and investigation programs. As part of the OPM review, agencies are asked whether they use polygraph examinations for pre-employment and personnel security and, if they do, whether the agencies’ use of polygraphs has been approved by OPM. If OPM does not approve an agency’s request, the agency is not authorized to use polygraph examinations for pre-employment and personnel security screening of competitive service employees. Also, since at least 2002, OPM has required that agencies with OPM-certified polygraph programs submit to biennial quality assurance inspections and provide copies of the inspection reports as proof that they are compliant with federal polygraph standards.
Even though Chapter 736, Section 2.b, of the FPM was retired in 1995, OPM continued to follow the procedures it contained. In letters approving the DEA’s, ATF’s, and JCC’s continued use of polygraph examinations for pre-employment and personnel security screening for FY 2006, OPM cited Executive Orders 10450 and 10577 as its authority for overseeing these uses of polygraph examinations for competitive service employees in the Executive Branch. OPM also cited the standards for personnel security polygraphs contained in the U.S. Security Policy Board’s Polygraph Memorandum of Agreement (SPB 058-99). OPM approval letters further stated that “OPM follows the standards it formerly prescribed in FPM Chapter 736, section 2-6, titled Use of the Polygraph in Personnel Investigations.”
1999 Interagency Memorandum of Agreement. Most of the federal agencies that conduct polygraph examinations signed a Memorandum of Agreement (MOA) in 1999 that contains operational requirements for polygraph programs, such as participation in a federal quality assurance program, access by federal inspectors to the records of personnel security examinations, the applicability of federal technical standards, examiner certification requirements, and the appropriate scope of certain questions. The development of the MOA began in 1993 when the Secretary of Defense and the Director of the CIA convened a Joint Security Commission to review and recommend improvements to federal security programs. Part of the review examined the use of polygraph testing in personnel screening as a condition for employment and in personnel security evaluations. In its 1994 report, the Joint Security Commission stated that it found federal agencies’ personnel screening program practices were inconsistent.17 For example, agencies varied as to when or if a screening polygraph was required, where or how it was administered, the subject areas covered during the test, how questions were worded, and what techniques were to be employed in administering the tests. The report recommended that the intelligence community develop standards to ensure consistency in the administration, application, and quality control of polygraph testing for personnel screening.
In response to the Commission’s recommendation, the U.S. Security Policy Board developed an MOA to promote standardization and reciprocity in personnel security evaluation programs.18 In 1999, 12 of the 13 members of the U.S. Security Policy Board Forum signed the MOA.19 The one agency that did not sign the MOA was the FBI.20 The signatory agencies agreed to participate in a federal quality assurance program for polygraph examinations, to allow federal inspectors to review the records of personnel security examinations, and to abide by federal technical standards as outlined in the Federal Psychophysiological Detection of Deception Examiner Handbook (Federal Examiner Handbook), among other things.21 They also agreed to certify the competency of their examiners based on federal standards. They agreed to limit the scope of counterintelligence questions and to minimize the intrusiveness of control questions. According to the MOA, agencies would accept each others’ polygraph results.
Federal Examiner Training, Standards, and Quality Assurance Program. Also in its February 1994 report, the Joint Security Commission recommended that the CIA and the Department of Defense consolidate the CIA’s Polygraph School with the Department of Defense’s Polygraph Institute (DoDPI) to form an institute that would conduct all polygraph education and training of federal government polygraph examiners. The recommendation was implemented, and since 1995, DoDPI has been the central provider of training for federal polygraph examiners, research, and monitoring of technical and scientific developments in polygraphy. Since 1996, DoDPI has also conducted quality assurance reviews of federal polygraph programs. Today, most federal polygraph examiners (including those who work for the FBI, DEA, ATF, and OIG) are trained at DoDPI. On May 13, 1999, operational responsibilities for DoDPI were placed under the Defense Security Service.22 DoDPI was transferred from the Defense Security Service to the Department of Defense, Counterintelligence Field Activity on December 19, 2002, based upon a memorandum signed by the Deputy Secretary of Defense. With the cooperation and assistance of other federal agencies, DoDPI:
Manages a continuing education program for federal polygraph examiners that requires a minimum of 80 hours of related instruction every 2 years,
Provides for research in forensic psychophysiology and credibility assessment methods,
Maintains federal polygraph standards as established in the Federal Examiner Handbook, and
Administers the federal Quality Assurance Program for polygraph programs.
DoDPI officials are assisted by an Executive Committee that is composed of 24 federal polygraph program managers, including program managers from the FBI, DEA, ATF, and OIG. The Executive Committee reviews new research, training proposals, suggested changes to the Federal Examiner Handbook, and the quality assurance standards.23 The Federal Examiner Handbook contains technical standards, procedures, and test formats. It was developed with input from all agencies of the federal polygraph community, including federal law enforcement, intelligence, and security agencies.
Since the Quality Assurance Program began in 1996, inspectors working at DoDPI have conducted technical reviews of federal polygraph programs to ensure that they are managed in compliance with the standards in the Federal Examiner Handbook. All federal agencies with polygraph programs, except the BOP’s SOTP and the USMS’s Witness Security (WITSEC) Program, participate in the Quality Assurance Program and undergo biennial inspections. As a matter of policy, participation is mandatory for Department of Defense polygraph programs and voluntary for other executive agencies. All federal law enforcement and intelligence agencies, except the FBI, agreed in the 1999 MOA to participate in the program, to use the Federal Examiner Handbook, and to supplement its instructions only when necessary to address unique requirements in their respective missions. The FBI began participating in the program in 2002.
A DoDPI inspection team consists of two or more certified polygraph examiners who review a sample of between 50 and 100 of the agency’s recent polygraph examination records as well as agency policies and procedures to determine compliance with 118 criteria in 9 primary program areas. The team evaluates all aspects of an agency’s polygraph program and reviews the work of examiners to ensure compliance with the Federal Examiner Handbook.
For example, inspectors verify that examination records contain consent forms signed by the examinees. They review questions asked during each examination to determine whether the questions were appropriate for the testing format used and the issue under inquiry. Inspectors review polygraph test charts and examiners’ numerical score sheets to determine whether the test data supported the examiners’ analysis and conclusion. Inspectors also determine whether the reviewing supervisor’s score sheet for an examination agreed with the field examiner’s score sheet and whether a test subject was retested. Inspectors analyze the time taken between the polygraph examinations and the supervisory quality control reviews to determine whether retests were conducted within a reasonable time.
After completing an inspection, the inspectors brief agency officials on the results of the inspection and provide them with a draft inspection report. When an inspected agency receives an inspection report, it has 30 days to respond to its findings and recommendations. If there are outstanding issues, inspectors conduct a follow-up inspection the next year to verify that changes necessary for compliance certification have been implemented both in policy and in practice. After all issues have been favorably resolved, DoDPI issues a letter to agency officials certifying that the agency’s polygraph program is in compliance. OPM requires that agencies present the DoDPI certification of compliance letter when they apply yearly for OPM approval to polygraph competitive service personnel. Since OPM does not conduct compliance reviews of the polygraph programs it has approved, OPM stipulates participation in and compliance with DoDPI’s quality assurance programs as a surrogate means of verifying that agency programs meet minimum professional and technical standards.
Intelligence Reform and Terrorism Prevention Act of 2004. In the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub. L. No. 108-458), Congress directed the federal government to establish requirements for improving the security clearance process. Specifically, Title III, Section 3001 (b) (2) requires the selection of a single entity to be responsible for
developing and implementing uniform and consistent policies and procedures to ensure the effective, efficient and timely completion of security clearances and determinations for access to highly sensitive programs, including... polygraph policies and procedures....
On June 27, 2005, Executive Order 13381 gave the Office of Management and Budget (OMB) responsibility for standardizing the federal security clearance process and ensuring uniform standards of reciprocity in the recognition of clearances across agencies. OMB issued a plan to improve the personnel security process in November 2005. The plan called for the development of the Clearance Verification System, a database of individuals’ names and their clearance status. In December 2005, OMB also issued a memorandum to all executive departments and agencies outlining issues inhibiting reciprocity of security clearances and actions departments and agencies are required to take to address them. According to the memorandum, federal agencies had until March 31, 2006, to report to OPM which of their personnel received a polygraph examination as part of their security clearance investigations as well as the agency that conducted the examination.
In May 2006, OPM officials told us that OMB had not yet designated an agency to lead government efforts to develop and implement standard polygraph policy and procedures. Hence, that work had not started. OPM officials said that Executive Order 13381, which was scheduled to expire on July 1, 2006, would probably be extended so that the work being done to implement the requirements of the Intelligence Reform and Terrorism Prevention Act could continue.
Department of Justice Polygraph Policy
We found that the Department has no comprehensive policy regarding the conduct and use of polygraph examinations. As described later in this section, the U.S. Attorneys’ Manual contains limited policies regarding the use of polygraph examinations in criminal investigations and for witness security.24 It is also Department policy to oppose attempts by defense counsel to admit the results of polygraph examinations into evidence or to have an examiner appointed by the court to conduct a polygraph examination.25
The Department has periodically considered establishing policies governing the use of polygraph examinations for pre-employment and personnel security screening of Department employees after the FPM was made non-binding, but such policies have not been adopted. For example, in an October 21, 1996, report on the results of a Department-wide survey of pre-employment polygraph testing, the Attorney General asked the FBI’s Office of Investigative Agency Policies (OIAP) to study and provide advice on the need for Department policy on the use of pre-employment polygraph examinations. The survey showed that only three organizations – the FBI, DEA, and JMD – used pre-employment polygraph testing for some of their employees. The Attorney General asked the OIAP to answer a number of questions concerning the FBI’s and other components’ use of pre-employment polygraphs and to advise the Attorney General as to whether the Department should establish a standardized set of guidelines for applicant and employee testing. However, the OIAP’s response in 1997 provided an analysis only of the FBI’s policy of testing all applicants and not the broader analysis of Department policy that the Attorney General requested.
On August 1, 2001, JMD presented to the Deputy Attorney General three options for a Department-wide policy on the use of polygraph examinations in personnel security evaluations that would have been applicable to all Department components except the FBI.26 The options provided alternatives for Department policy (applicable to all Department components except the FBI) on the use of counterintelligence-scope polygraph examinations in personnel security investigations.27 The first option was to maintain the status quo, which would continue to allow the components to establish component-level policies. At the time, the DEA had policy for pre-employment screening for Special Agent applicants, and the FBI had policy for pre-employment and personnel security screening. The second option was that the Department would require periodic polygraph examinations for those employees with regular access to the highest levels of classified information. The third option was to require polygraph examinations for all employees with access to any level of classified information.
JMD recommended that the Deputy Attorney General raise the issue of polygraph examinations for personnel screening with affected components to determine whether the Department should adopt a policy. In its memorandum to the Deputy Attorney General, JMD said that, if the components subsequently decided that the Department needed to adopt a polygraph policy, JMD recommended the second option (require periodic examinations for those employees with regular access to the highest levels of classified information) over the third option (require polygraph examinations for all employees with access to classified information). However, the Department did not act on JMD’s recommendations.
In 2004, during an OIG investigation of potential misconduct by a Department attorney, the OIG asked JMD for the Department’s position on whether Department employees could be compelled to submit to a polygraph examination. JMD informed the OIG that it believed, in the absence of a Department polygraph policy, the Department could not compel Department employees. JMD also stated that it was unlikely that disciplinary action against an employee based on information gained through a compelled polygraph examination would be sustained on appeal.
In July 2004, JMD’s Security and Emergency Planning Staff (SEPS) proposed the formation of a working group to establish Department polygraph policy for pre-employment and personnel screening. JMD proposed this initiative after determining that it did not have the authority to conduct a polygraph examination of a competitive service employee, even with the employee’s consent. This issue arose when, during an adjudication of a background investigation, an employee volunteered to submit to a polygraph examination to resolve an issue. JMD proposed a working group to develop a policy to govern the Department’s use of polygraph examinations for pre-employment and personnel screening that would be submitted for OPM’s review and approval. As of July 2006, the Department had not formed such a working group.
Another proposal regarding the use of polygraphs in the Department was made in September 2004, when the FBI submitted a request to the Office of the Deputy Attorney General for approval to polygraph employees of other Department components who had regular access to sensitive FBI information. This request would have affected Department attorneys and other personnel who had access to the FBI’s most sensitive national security information. The proposal specifically identified Department employees assigned to the offices of the Attorney General and the Deputy Attorney General, Office of Intelligence Policy and Review, Criminal Division, OIG, and U.S. Attorneys’ Offices. Under the proposal, employees in those components who had regular access to FBI information would have undergone counterintelligence-scoped polygraph examinations as a condition of access eligibility. On July 12, 2005, the Deputy Attorney General met with the FBI Director and advised him that he would not require Department attorneys to undergo polygraph examinations.
As part of this review, in June 2006 the OIG met with JMD officials to discuss whether the Department’s position on compelled polygraphs had changed since 2004. After discussing JMD’s 2004 position, JMD officials informed the OIG that they intended to ask JMD’s Office of General Counsel to reexamine whether the Department has the legal authority to compel employees to submit to polygraph examinations during investigations of administrative misconduct and, if so, what procedural steps would be required to exercise that authority.
Requirements and Process of Polygraph Examinations
Polygraph Examination Requirements. All subjects of polygraph examinations must consent to be tested. However, there may be consequences when a subject refuses to take a polygraph examination or when an examination indicates deception. As described in this section, the consequences of polygraph examinations vary, depending on whether the examination is considered voluntary, mandatory, or compelled; the reason for the examination; and the examination results.
Voluntary Examinations. Some polygraph examinations given to federal employees or other individuals may be voluntary, meaning that the examinee may refuse to take the examination with no adverse consequences. For example, a witness or subject in a criminal investigation may be asked to take a voluntary polygraph examination to resolve discrepancies or confirm the veracity of his or her information. Because such witnesses and subjects are protected by the Fifth Amendment right against self-incrimination (discussed further below), they can refuse to speak with investigators or to take a polygraph examination and are not to suffer negative consequences for the refusal.
Mandatory Examinations. Mandatory polygraph examinations are those in which a successful examination is required for an individual to, for example, be considered for employment, become a member of a foreign investigative unit, or receive a security clearance. Generally, the consequences of refusing to take a mandatory polygraph examination are related to the administrative purpose for which the examination was required. As described in the following examples, applicants who refuse to take mandatory examinations may be denied employment, and employees who refuse to take mandatory polygraph examinations for a security clearance may be denied access to national security information.
All applicants for employment in the FBI must undergo and pass a pre-employment polygraph examination. Applicants who refuse to take a polygraph examination are ineligible for employment. Applicants who fail their polygraph examinations and subsequently admit to deceptive or disqualifying behavior are normally barred from FBI employment. Applicants found to be deceptive, but who make no admission or confession during the examination process, may appeal the results of their examinations and may or may not be retested.
The FBI also requires selected employees and non-FBI personnel with access to sensitive FBI information to undergo periodic and random personnel security polygraphs as a deterrent to espionage. Employees who refuse to submit to mandatory polygraph examinations, such as during periodic security reinvestigations or investigations of national security matters, may face transfer to a position with no access to sensitive information, denial or re-evaluation of their security clearances, or disciplinary action for insubordination. Since holding a security clearance is a condition of employment at the FBI, revocation of an FBI employee’s clearance would also lead to dismissal.
In the DEA, polygraph examinations are mandatory for applicants for Special Agent and Intelligence Research Specialist positions, and foreign candidates for membership in Sensitive Investigative Units. Applicants for Special Agent and Intelligence Research Specialist positions who refuse to take a polygraph examination are not eligible for DEA employment. When an applicant’s polygraph results indicate deception and the applicant subsequently confesses or admits deception, they are not hired. When the results indicate deception, but there is no subsequent confession, the DEA may retest the individual or try to resolve the issue by conducting a background investigation. However, membership in a foreign investigative unit is contingent on taking and passing a polygraph examination.
ATF requires all applicants for Special Agent positions to undergo a mandatory pre-employment polygraph examination. Those who refuse are not eligible for employment. If an applicant’s examination results in indications of deceptiveness or an admission of deception or disqualifying behavior, the individual may be ineligible for hire. Other positions in ATF do not require a pre-employment polygraph examination.
Compelled Examinations. Compelled polygraph examinations are those in which an employee is ordered to submit to the examination under threat of adverse action (including suspension or dismissal) if they do not comply. Information gained through a compelled polygraph examination cannot be used in criminal proceedings against the subject, although it may be used for administrative purposes. Whether an agency can take adverse action against an employee for refusing to take a polygraph examination when compelled during an investigation of administrative misconduct or a security investigation depends on whether the employee is in the competitive service or excepted service, and whether the agency has implemented OPM-approved polygraph policies, among other things. Within the Department, only the FBI has issued policies outlining when employees can be compelled to submit to polygraph examinations.
Federal courts have reviewed a number of cases in which public employees were dismissed for refusing to take compelled polygraphs during an investigation into administrative misconduct issues. As described below, these courts held that public employees can be compelled to submit to polygraph examinations in investigations into the performance of their official duties, so long as they are not also required to relinquish their privilege against self-incrimination. Thus, for example, the Eighth Circuit rejected the Fifth Amendment and due process claims of a police officer who was terminated after refusing to take a polygraph examination regarding the disappearance of a photograph of a beaten detainee:
The [Fifth] Amendment is violated when public employees are compelled to testify by employers who require the employees to either incriminate themselves or to forfeit their jobs. As long as a public employer does not demand that the public employee relinquish the employee’s constitutional immunity from prosecution, however, the employee can be required to either testify about performance of official duties or to forfeit employment.28
Other cases that do not specifically involve polygraphs affirm the right of the government to compel public employees – regardless of whether they are law enforcement officers or not – to answer questions about the performance of their official duties.29
However, many Department employees compelled to answer questions (including questions asked as part of a polygraph examination) have procedural protections from adverse employment actions under the Civil Service Reform Act, 5 U.S.C. § 1101 et seq. Since 1990, Department attorneys have been among that group. Id. § 7511(a)(1)(C). Before the Civil Service Due Process Amendments were enacted, the Department’s Office of Legal Counsel (OLC) had opined that a Department attorney could be removed for refusing to submit to a polygraph examination in connection with an investigation into a leak in an ongoing criminal matter.30
Specifically, in its 1980 opinion, OLC stated that Department attorneys had no procedural protections from summary removal under the Civil Service Reform Act, other than a statement of reasons for the discharge. The OLC opinion stated:
Substantively, Department attorneys are provided no protections by Department regulations. And since they are not covered by the “for cause” standard of the civil service laws, attorneys apparently serve at the pleasure of the Attorney General.
OLC stated that failure to submit to a polygraph would amount to insubordination, which is punishable by removal, and “arguably impedes investigation of government misconduct.” OLC concluded, in accordance with the Fifth Amendment discussion above, that as long as a Department attorney was “warned that failure to submit to the test could lead to his or her dismissal and that nothing obtained in the examination will be used against the employee in a subsequent criminal proceeding,” the Attorney General could dismiss a Department attorney for failing to submit to a polygraph.
After the Civil Service Due Process Amendments were enacted in 1990, it is no longer true that a Department attorney could be summarily dismissed. A Department attorney is able to appeal certain disciplinary decisions to the Merit Systems Protection Board (MSPB). It is unclear whether the MSPB would uphold a dismissal for insubordination based on an employee’s refusal to take a polygraph.31 However, the MSPB has not specifically addressed the question of whether an employee can be removed for refusal to take a polygraph in connection with an investigation into administrative misconduct.
As of June 2006, the FBI was the only component within the Department that has issued policies and procedures for compelling its employees to undergo polygraph examinations in misconduct or security investigations. The FBI’s policy covers all FBI employees, including attorneys. Employees of the FBI also can be ordered to take a polygraph examination in an administrative investigation if the matter involves one or more of seven specified violations of law or FBI policies, such as the unauthorized release of sensitive information.32 FBI employees who refuse to take a polygraph examination under these circumstances face administrative discipline, up to and including dismissal. FBI policy also states that designated FBI officials can
compel any Bureau or non-Bureau person with access to FBI information or facilities to submit to a polygraph examination to resolve specific issues which may impact a person’s trustworthiness for security matters.
The FBI policies appear consistent with the criteria established in court cases for upholding dismissals when employees refuse to take compelled polygraph examinations.33
While FBI employees can be compelled to submit to polygraph examinations, it is not clear whether employees of other Department components can be compelled to do so in the absence of a policy regarding compelled polygraphs. As described previously, in 2004 JMD informed the OIG of the Department’s position that, in the absence of approved regulations, it does not have the authority to compel employees to take polygraph examinations during administrative misconduct investigations. The Department and Department components other than the FBI have not issued such policies, and we found that several proposals to develop a Department-wide polygraph policy have not been acted upon to date. Consistent with the position expressed by JMD in 2004, we found no instance in which an employee of a Department component, other than the FBI, has been compelled to take a polygraph examination in an administrative misconduct investigation. However, when the OIG met with JMD officials in June 2006, the JMD officials stated that they intended to ask JMD’s Office of General Counsel to reexamine whether the Department has the legal authority to compel employees to submit to polygraph examinations during investigations of administrative misconduct.
General Polygraph Examination Process. As described in the following paragraphs, the polygraph examination process typically includes a pretest interview, collection of physiological data using a polygraph instrument, analysis of the test data, and a post-test interview in which the examiner questions the subject about answers that evoked a response. (See Chart 1 on page 24.) Examinees are generally asked to give written consent before they undergo a polygraph examination.
Pretest Interview. The first step in the polygraph process is a pretest interview. During the pretest interview, the examiner verifies information that the subject provided previously and gathers information to formulate the questions that will be asked during the physical test.34 According to a National Academy of Sciences report, a comprehensive and careful pretest is critical to a successful examination.35 During the pretest interview, subjects are encouraged to correct prior statements (for example, statements regarding the extent of prior drug use) and to reveal relevant information not previously disclosed (such as criminal behavior or security violations). In some cases, a subject may make an admission or confession during the pretest interview that will obviate the need for further testing.
Testing. During the testing phase, the examiner asks the examinee questions while the examinee is connected to the polygraph instrument. The examinee is instructed to answer each question with either a “yes” or “no,” and the polygraph instrument measures and records the examinee’s physiological reactions as the examinee answers each question.
In general, the format and scope of the questioning depends on the purpose of the test. Questions follow one of two formats – specific issue and non-specific issue (screening). Specific-issue examinations are conducted to resolve questions related to specific factual issues or single known events under investigation.36
Questions asked during specific-issue examinations relate to the specific incident and generally have little ambiguity (for example, “Did you see John Smith on Monday at 2 p.m.?”). In contrast, in non-specific examinations, such as those conducted during pre-employment testing and employee screening, there is no specific known event being investigated. The questions asked during a non-specific examination may cover multiple topics and may range across an entire lifetime (“Have you ever revealed classified information to an unauthorized person?”).
Among non-specific polygraph examinations, there are two general scope categories: the counterintelligence-scope polygraph and the full-scope polygraph. The counterintelligence-scope polygraph focuses on identifying involvement in espionage, sabotage, terrorism, mishandling of classified information, and unauthorized contacts with representatives of foreign governments. The full-scope polygraph covers all of the counterintelligence-scope questions and also includes questions pertaining to both security issues and suitability for employment. Questions involving suitability asked during an examination usually address criminal history, use of illegal drugs, and falsification of information on the personal history statement.
Chart 1: Polygraph Examination Process
| Source: OIG analysis |
Data Analysis. After completing the physical test, the examiner analyzes the physiological reactions that the subject exhibited in response to each question asked during the test. The examiner assigns a score to each response. The standards for analyzing and scoring test results are prescribed in the Federal Examiner Handbook. Once the analysis and scoring are completed, the examiner issues one of four opinions:37
Deception Indicated– The subject’s physiological reactions when responding to one or more relevant questions were indicative of deception.
No Deception Indicated– The subject had no physiological reactions indicative of deception when responding to relevant questions.
Inconclusive– The examiner cannot reach a conclusion of Deception Indicated or No Deception Indicated.
No Opinion– The examiner cannot render an opinion based on the physiological data on the charts. A result of No Opinion often indicates that the subject stopped the test before it was completed.
If the examination results in a finding of No Deception Indicated, Deception Indicated, or Inconclusive, the polygraph process continues with a post-test interview or additional testing.
Post-Test Interview. To resolve inconclusive results or determine why a subject exhibited indications of deceptiveness in response to specific questions, the examiner may discuss the test results with the subject. In some cases, the subject may give an acceptable explanation for why the subject reacted to a particular question, or the subject may confess to wrongdoing or undesirable behavior.
After the polygraph examiner formulates a preliminary opinion on the results of the examination, a supervisory examiner reviews the examination record and the examiner’s opinion as a quality control measure. The supervisory examiner issues the final opinion on the results. The polygraph examination process essentially ends with the issuance of the final opinion and a referral of the findings to adjudicating or investigating officers.
Polygraph Examinations in the Department of Justice
Eleven components in the Department reported conducting or using polygraph examinations since the beginning of fiscal year (FY) 2002. Four of them, the FBI, DEA, ATF, and OIG, administer their own polygraph programs and conduct examinations for their organization as well as for other organizations. The other seven components do not conduct their own polygraph examinations; instead, they use the services of other agencies. Those seven components are the Department’s Criminal Division, Justice Command Center (JCC), Antitrust Division (ATR), National Drug Intelligence Center (NDIC), Office of Professional Responsibility (OPR), Federal Bureau of Prisons (BOP), and U.S. Marshals Service (USMS).
Purposes of Polygraph Examinations. Polygraph examinations are used for several purposes, depending on the Department component’s mission and requirements. Components use polygraph examinations primarily for:
-
Pre-employment screening,
-
Personnel security screening,
-
Criminal investigations,
-
Counterintelligence and counterterrorism investigations,
-
Misconduct and internal affairs investigations,
-
Witness security, and
-
Foreign vetting.
These uses of polygraph examinations are briefly described below.
Pre-Employment Screening. Pre-employment polygraph examinations are non-specific, full-scope examinations that are used to identify past behavior (e.g., use of illegal drugs, involvement with foreign nationals) that may indicate a lack of reliability in the potential employee. The FBI and the JCC require all applicants to undergo a pre-employment polygraph examination. The DEA, ATF, and NDIC require only applicants for certain specified positions (such as GS-1811 criminal investigators) to be tested. The OIG does not conduct pre-employment polygraph examinations.
Personnel Security Screening. Polygraph examinations are used in personnel security programs to identify individuals that present serious threats to national security and to deter and detect unwanted behaviors such as espionage. Personnel security polygraphs are non-specific, counterintelligence-scope examinations. The examiners ask questions pertaining to the subject’s involvement in espionage, sabotage, terrorism, unauthorized disclosure of classified information, and unauthorized foreign contacts. Personnel security screening examinations can be conducted as a condition of initial access to national security or sensitive information, as a part of periodic security reinvestigations, or on randomly selected individuals. The FBI is the primary user of personnel security polygraphs in the Department and intends to require them of all personnel. The DEA conducts personnel security polygraphs only on its polygraph examiner trainees, who are required by DoDPI to undergo the examination before being accepted for training. ATF and the OIG do not conduct personnel security polygraphs.
Criminal Investigations. Polygraph examinations used in criminal investigations are specific-issue examinations that are administered to subjects, witnesses, or informants to (1) detect and identify criminal suspects; (2) verify information furnished by an informant or a witness to establish or corroborate credibility; and (3) obtain additional information leading to new evidence or identification of additional suspects, witnesses, or locations. The FBI, DEA, ATF, and OIG conduct and use polygraph examinations as a tool in criminal investigations. The FBI also conducts criminal, specific-issue polygraph examinations for the Department’s ATR, Criminal Division, and OPR when requested.
Counterintelligence and Counterterrorism Investigations. During investigations into suspected security breaches (espionage) or foreign or domestic terrorist threats to national security, specific-issue polygraph examinations may be administered to the subjects, witnesses, or informants associated with the incident or threat under investigation. The FBI is the only Department component that conducts and uses polygraph examinations in counterintelligence and counterterrorism operations.
Misconduct and Internal Affairs Investigations. Specific-issue polygraph examinations may be given to employees who are subjects, witnesses, or complainants in investigations of personal misconduct in the performance of official duties. These examinations are used to substantiate or refute allegations, verify information furnished by complainants or subjects, establish or corroborate credibility, and obtain additional information. The FBI, DEA, OIG, BOP, USMS, and OPR reported using polygraph examinations as a tool in misconduct investigations. (See Tables 2 and 3 at the end of this section.) The FBI and the OIG also conduct examinations when requested by the BOP, USMS, and OPR.
WITSEC Program. “Prisoner-witnesses” who want to participate in the WITSEC Program must undergo a specific-issue polygraph examination to aid in assessing their truthfulness. According to the Department’s U.S. Attorneys’ Manual, Title 9, Chapter 21, a polygraph examination is required of all WITSEC Program candidates who are incarcerated in order to maintain the security of individuals housed in a BOP Protective Custody Unit. The USMS also uses polygraph examinations for witnesses that are not incarcerated, but claim that their security has been breached and ask the USMS to move them to a new location. The FBI, OIG, or the Secret Service conducts polygraph examinations for the WITSEC Program when requested by the Department’s Criminal Division, which oversees the WITSEC Program. A private contractor working for the U.S. Marshals Service conducts polygraph examinations of WITSEC participants who are not incarcerated.
Foreign Vetting. Foreign agents and law enforcement officials assigned to joint law enforcement task forces or overseas operations involving Department components are vetted using non-specific, full-scope polygraph examinations. These examinations are conducted to help identify potential security risks and to identify individuals whose past behavior could indicate uncertain reliability. The DEA and ATF reported using polygraph examinations to vet foreign participants of task forces and overseas operations.
Number of Polygraph Examinations Conducted by the Department’s Four Polygraph Programs (FBI, DEA, ATF, and OIG). From FY 2002 through 2005, the four Department components that conduct polygraph examinations (the FBI, DEA, ATF, and OIG) performed approximately 49,197 examinations.38 The examinations conducted by the components were used as follows:
27,866 (56.7 percent ) for pre-employment screening (the FBI, DEA, and ATF),
4,735 (9.6 percent) for personnel security screening and investigations (the FBI and DEA),
8,356 (17 percent) for criminal investigations (the FBI, DEA, ATF, and OIG),
149 (0.3 percent) for misconduct investigations (the FBI and DEA),
1,994 (4.1 percent) for counterintelligence and counterterrorism investigations (the FBI only),
1,694 (3.4 percent) for requests by other organizations for a variety of uses (the FBI and OIG), and
4,403 (8.9 percent) for foreign vetting (the DEA and ATF).
Table 2 lists the number and type of polygraph examinations conducted by each of the four components.
| Table 2: Polygraph Examinations Conducted by Component FY 2002 through 2005 |
|||
|---|---|---|---|
| Component | Polygraphs Conducted for | Number Conducted |
Percentage of Total |
FBI |
Subtotal |
23,310
4,721 6,203 128 1,994 1,661 38,017 |
77.3% |
DEA |
Subtotal |
3,218
14 733 21 4,321 8,307 |
16.9% |
ATF |
Subtotal |
1,338
1,280 82 2,700 |
5.5% |
OIG |
Subtotal |
140
33 173 |
0.4% |
Totald |
49,197 |
100.0% |
|
Number of Polygraph Examinations Used or Conducted by Seven Other Department Components. From FY 2002 through 2004, the seven Department components that use the results of polygraph examinations reported using approximately 1,361, as shown in Table 3 on the next page. Most of those examinations are included in the numbers that the FBI, DEA, ATF, and OIG reported conducting, (shown in Table 2). However, some of the examinations shown in Table 3 were conducted by the Secret Service, CIA, BOP’s SOTP, and a contractor for the USMS’s WITSEC Program. The BOP and USMS conduct limited numbers of polygraph examinations but do not have polygraph programs like those of the FBI, DEA, ATF, and OIG. Table 3, on the next page, lists these “user” components, the number and purpose of the examinations requested or used, and the components that conducted the examinations.
| Table 3: Number of Polygraph Examination Results Used By Seven Other Components in FY 2002 through 2004 |
|||
|---|---|---|---|
Component |
|
Conducted by |
Results Used |
Antitrust Division |
|
FBI |
2 |
Bureau of Prisons |
FBI, OIG
|
(338) |
|
Criminal Division |
|
FBI |
725 |
Justice Command |
|
FBI |
3 |
National Drug |
|
FBI |
72 |
Office of |
|
FBI |
0 |
U.S. Marshals |
|
FBI Contractor, ATF |
0 16 |
| Total 1,361d | |||
Purpose, Scope, and Methodology
The OIG conducted this study of polygraph programs in the Department to develop detailed information concerning the use of polygraph examinations in the Department, including trends in polygraph use as well as common issues affecting the Department’s polygraph programs and uses. We focused on identifying and describing:
Legal and regulatory requirements governing the use of polygraph examinations in the federal government;
Department policy and mechanisms for oversight of component use and administration of polygraph examinations; and
Key characteristics of the Department’s polygraph programs, the various uses of polygraph examinations, and how the components manage their use of polygraph examinations in compliance with federal and professional standards.
We studied the 11 Department components that used polygraph examinations in FY 2002 through 2005. In conducting this examination, we reviewed government and private studies, component policies and regulations, federal and component polygraph manuals, and journal articles. We also reviewed federal legislation, Presidential Memorandums and Executive Orders, and security directives and guidelines to determine the legal and regulatory requirements for using and conducting polygraph examinations in the Department.
In addition, we talked with officials in the criminal, intelligence, counterintelligence, and personnel security divisions of the Department, FBI, DEA, ATF, and OIG to determine their use and experience with polygraphs. We talked with security officials, officials dealing with issues of misconduct, adjudicators, and personnel specialists to identify policies and procedures for requesting and approving polygraph examinations and the pool of candidates subject to initial, periodic, random, and compelled polygraphs. We also examined how the results of polygraphs examinations were interpreted, adjudicated, managed, and stored.
We talked with polygraph examiners and officials administering polygraph programs and managing polygraph units for the FBI, DEA, ATF, and OIG. We identified the key components in each polygraph program and, when necessary, developed organizational charts showing both the headquarters and field structures.
We analyzed budget data, polygraph statistics, performance measures, and strategic plans regarding these polygraph programs. We also reviewed the mission, policies, and procedures guiding each of the units as well as their interaction with other polygraph units and professional organizations. We talked with field supervisory examiners regarding the use and conduct of polygraph examinations and examiner recruitment, training, certification, performance, and oversight.
We traveled to DoDPI, which is located at Fort Jackson, South Carolina; interviewed DoDPI officials; and received a briefing on DoDPI’s role. We identified federal training requirements and issues regarding polygraph use in the federal government. We discussed federal technical standards and requirements for the conduct of polygraphs.
To gauge the performance of the Department’s polygraph units and examiners, we reviewed quality assurance and internal inspection reports on the FBI, DEA, ATF, and OIG polygraph programs. We used the inspection results to evaluate the overall performance of the units in complying with internal policies and procedures and in meeting established standards for polygraph programs in the federal government.
Electrodermal reactions are related to the electrical properties of the skin.
In 1964, a series of hearings was held by Congressman Moss of the House Committee on Foreign Operations and Government Information on the use of polygraph examinations. The hearings resulted from an attempt by the labor unions to have the use of “lie detector tests” by federal agencies banned. As a result of the hearings, the Moss Committee recommended that government polygraph programs be centralized, that quality control reviews be implemented in government programs, that research continue, and that federal examiners receive standardized education in the use of the polygraph technique.
The Johnson Memorandum did not specifically address administrative misconduct investigations. The section of the memorandum that addresses “personnel investigations” has been interpreted by OPM as relating to investigations to “[e]nsure the suitability of applicants for and appointees to Federal positions” (i.e., pre-employment and security investigations), rather than to personnel misconduct investigations.
According to an archivist with the Johnson Library who investigated the status of the Johnson Memorandum in some detail at our request, the memorandum was not contained in the Library’s collection of memorandum to heads of departments and agencies, nor was it located in the Weekly Compilation of Presidential Documents, which is where issued memorandums should be found. He stated that the Johnson Library had found no evidence that the memorandum was ever officially promulgated.
In introducing the general requirements for the use of the polygraph in the Executive Branch, the FPM stated: “With the concurrence of President Lyndon B. Johnson, the following rules, incorporated in an interagency committee report dated July 29, 1966, remain in effect.” FPM, Ch. 736, § 2-6(a). Similarly, in its 1996 proposed rule to replace the FPM, OPM characterized the relationship between the Johnson Memorandum and the FPM as follows: “Chapter 736 of the former FPM contained limitations upon using polygraphs in personnel investigations based upon a July 29, 1966, interagency committee report approved by former President Lyndon B. Johnson.” See Suitability, National Security Positions, and Personnel Investigations, 61 Fed. Reg. 394, 396 ( Jan. 5, 1996 ).
For example, among the documents we uncovered is a September 17, 1999, memorandum prepared by the Criminal Division’s Office of Enforcement Operations for the Attorney General, forwarding a request from the Department of the Interior that the Attorney General approve Interior’s policy governing the use of polygraph examinations in its criminal investigations. The memorandum recommended that the Attorney General approve the policy, citing the Johnson Memorandum as the source of the Attorney General’s authority to do so. The memorandum did not probe the basis for Interior’s request, but simply stated that the requisites of the Johnson Memorandum were met. This was the only instance we identified in which an agency sought Attorney General approval of its polygraph policy under the Johnson Memorandum.
Most federal government civilian employees are part of the competitive civil service, which is governed by the Civil Service Rules in Title 5 of the Code of Federal Regulations. However, some agencies, including the FBI, are exempt from the competitive civil service procedures established in those rules. These agencies, called excepted service agencies, establish their own personnel rules.
Joint Security Commission, Redefining Security, A Report to the Secretary of Defense and the Director of Central Intelligence, Washington, D.C., February 29, 1994.
The U.S. Security Policy Board was established by Presidential Decision Directive/NSC-29, “Security Policy Coordination,” September 16, 1994. It has since been disbanded.
The 1999 MOA was signed by the U.S. Air Force, U.S. Army, CIA, DEA, Defense Intelligence Agency, Department of Defense, Department of Defense Polygraph Institute, Department of Energy, U.S. Navy, National Reconnaissance Organization, National Security Agency, and the Department of the Treasury.
The U.S. Security Policy Board’s July 1999 approval memorandum noted that the FBI declined to sign the MOA because of unspecified “unique, on-going operational and policy issues.” While our study was in progress, the FBI indicated to us and to the Department of Defense Polygraph Institute that it was now interested in becoming a signatory, but as of July 2006 no action had been taken on this issue. According to the Institute, because the U.S. Security Policy Board has been abolished, the FBI would have to sign a separate agreement containing the terms of the original MOA.
Federal agencies have adopted the term psychophysiological detection of deception (PDD) to describe the process known as a polygraph examination. PDD and “polygraph examination” are synonymous.
See Department of Defense Directive 5105.42, “Defense Security Service.”
The federal polygraph standards were developed based on the American Society of Crime Laboratory Directors (ASCLAD) inspection process. The ASCLAD process is a voluntary fee-for-service inspection process that certifies most federal, state, and local crime laboratories. The original and all subsequent modifications to federal polygraph standards as found in the Federal Examiner Handbook must be approved in writing by all 25 federal agencies that participate in the federal Quality Assurance Program administered by DoDPI.
Department policy requires that all Witness Security (WITSEC) Program candidates who are incarcerated undergo a polygraph examination before acceptance into the program. See U.S. Attorneys’ Manual, Chapter 9, Section 9-21.340, Polygraph Examinations for Prisoner-Witness Candidates, and Section 9-21.600, Prisoner-Witnesses. The WITSEC Program provides for the security, health, and safety of government witnesses, incarcerated or not, and their immediate dependents whose lives are in danger as a result of their testimony against drug traffickers, terrorists, organized crime members, and other major criminals.
The U.S. Attorneys’ Manual, Subsection 9-13.300, provides that the “Department opposes all attempts by defense counsel to admit polygraph evidence or to have an examiner appointed by the court to conduct a polygraph test.... On the other hand, the Department recognizes that in certain situations, as in testing the reliability of an informer, a polygraph can be of some value. Department policy therefore supports the limited use of the polygraph during investigations.” Chapter 9, Criminal Division, Section 9-13, Obtaining Evidence, Subsection 9-13.300, Polygraphs – Department Policy. The U.S. Attorneys’ Manual contains general policies and procedures relevant to the work of the United States Attorneys' Offices and to their relations with the legal divisions, investigative agencies, and other components within the Department of Justice.
JMD based the proposed policy on the Johnson Memorandum, assuming that the memorandum had been issued. In discussing the FPM (which had, by then, been retired), JMD noted that “OPM continues to exercise its oversight over agency polygraph use despite the lack of formal regulations in effect at this time.” Even though a Departmental polygraph policy would affect both excepted service and competitive service personnel, JMD opined that “it would be advisable to comply with OPM guidance and seek OPM approval of any proposed regulations. Having OPM approval for Department regulations would also afford greater protection against any legal challenges to the Department’s policy.”
Executive Order 12968, “Access to Classified Information,” August 2, 1995, established a uniform personnel security program for employees who are to be considered for initial or continuing access to classified information. According to the Executive Order, eligibility for initial access is based on a personnel security investigation of an individual’s background. Employees who are eligible for access to classified information must undergo periodic reinvestigations and may also be reinvestigated if, at any time, there is reason to believe that they may no longer meet the standards for access established by the Executive Order.
See Hill v. Johnson, 160 F.3d 469, 471 (8th Cir. 1998) (citations omitted). Because of “the important public interest in securing from public employees an accounting of their public trust,” id., only “the combined risks of both compelling the employee to answer incriminating questions and compelling the employee to waive immunity from the use of those answers” violate the employee’s privilege against self-incrimination. Id. See also Wiley v. Doory, 48 F.3d 773 (4th Cir. 1995) (rejecting Fifth Amendment claims of police officers who were compelled to take polygraphs in connection with an investigation into a shooting and who were threatened with job loss, when none of the officers was compelled to waive his Fifth Amendment rights); Hester v. Milledgeville, 777 F.2d 1492 (11th Cir. 1985) (rejecting Fifth Amendment claims of firefighters who were fired for refusing to take polygraphs in connection with an investigation into illegal drug activity, where none of the firefighters was compelled to waive his Fifth Amendment rights); Gulden v. McCorkle, 680 F.2d 1070 (5th Cir. 1982) (rejecting Fifth Amendment claims of Department of Public Works employees who were fired for refusing to take polygraphs in connection with an investigation into a bomb threat called in to a Department office, where none of the employees was compelled to waive his Fifth Amendment rights). The Second Circuit has upheld an FBI agent’s termination for cocaine use and lack of candor, holding that even if the agent was terminated for refusing to take a polygraph examination, his termination was not constitutionally impermissible because he “was explicitly promised throughout the administrative investigation that any ‘information’ resulting therefrom... would not be used against him in criminal proceedings.” Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987).
See Lefkowitz v. Turley, 414 U.S. 70 (1973); Uniformed Sanitation Men Assoc. v. Commissioner, 392 U.S. 280 (1968); Garrity v. New Jersey, 385 U.S. 493 (1967).
In Meier v. Department of Interior, 3 M.S.P.R. 247 (1980), the Board declined to draw an adverse inference against an employee who did not take a polygraph examination in connection with an investigation into his alleged misconduct. Whether the agency had ever actually requested that the employee take a polygraph is not clear. Because the FPM’s restrictions on polygraph use would still have been in effect, the agency would not have been able to compel the employee to submit to a polygraph.
The seven violations are: (1) intentional and unauthorized release of sensitive, protected information; (2) relationship with or allegiance to a foreign power; (3) illegal or improper exercise of influence; (4) intentional and unauthorized destruction, alteration, misplacement, taking, falsification, or other impairment of FBI documents or evidence; (5) use of or unauthorized dealing in controlled substances; (6) false statements or the failure to candidly disclose information; and (7) theft, fraud, and misuse of government money and property.
Those criteria were most clearly stated in Eshelman v. Blubaum, (App) 114 Ariz 376, 560 P2d 1283. Eshelman concerned a Deputy Sheriff who was dismissed for willful disobedience of an order and insubordination for refusing to take a polygraph examination during an internal investigation. The court stated that the criteria for demanding a polygraph in the course of an internal investigation is that the employee be informed in advance that (1) the questions to be asked during the polygraph examination will relate specifically and narrowly to the performance of the employee’s duties, (2) the answers given will not be used against the employee in any subsequent criminal prosecution, and (3) the penalty for refusing can include dismissal.
Redefining Security, A Report to the Secretary of Defense and the Director of Central Intelligence.
The Committee to Review the Scientific Evidence on the Polygraph established by the National Research Council of the National Academy of Sciences issued the study, The Polygraph and Lie Detection, published in October 2003 by the National Academies Press.
There are variations in terminology used in different polygraph units, but in general they are synonymous with these four basic opinions. Later sections of this report discuss variations in terminology where they exist in the Department.
The number is an approximation because the four components do not all track their uses of polygraph examinations in the same way.