Use of Polygraph Examinations in the Department of Justice

Evaluation and Inspections Report I-2006-008
September 2006
Office of the Inspector General


SECTION II:  Other Polygraph Users in the Department of Justice


Seven organizations in the Department reported using the results of polygraph examinations that were conducted by other federal agencies, such as the FBI, OIG, and CIA, or by a private contractor. The seven users were the Department’s Criminal Division, Justice Command Center (JCC), Antitrust Division (ATR), National Drug Intelligence Center (NDIC), Office of Professional Responsibility (OPR), BOP, and USMS. From FY 2002 through 2004, the seven users requested other agencies to conduct a total of 1,728 polygraph examinations for witness security screening, administrative (misconduct and internal affairs) investigations, criminal investigations, personnel security screening, sex offender treatment, and vetting foreign witnesses, prosecutors, and law enforcement personnel.86 Over 96 percent of the examinations were conducted by the FBI.

Of the seven users, only the BOP, JCC, and NDIC have internal policies and procedures governing the use of polygraph examinations.87 The JCC is the only user that OPM has approved to use narrowly focused, counterintelligence-scope polygraph examinations as part of the security clearance process for its competitive service employees and recruits. OPM granted the Department authority to use polygraph examinations for positions in the JCC after OPM determined that the JCC had a national security mission supporting the use of polygraphs and approved the JCC’s polygraph policies and procedures.

DoDPI has never conducted a quality assurance review of the seven components’ uses of polygraph examinations. DoDPI has reviewed some of the examination records via its quality assurance reviews of the polygraph programs of the agencies such as the DEA, ATF, and OIG that conduct examinations. Although the FBI conducted approximately 96 percent of the examinations requested by the seven users in FY 2002 through 2004, the FBI has not provided the records of those examinations for DoDPI review. The FBI cited the logistical problems of retrieving the records of criminal specific-issue, pre-employment and personnel security polygraph examinations from the requesting agencies as the reason for not providing them to DoDPI for review. The FBI does not provide examination records associated with the WITSEC Program, Foreign Counterintelligence and Counterterrorism, and Office of Professional Responsibility programs for DoDPI review, whether they are conducted for FBI purposes or for another agency, due to the sensitive nature of those programs.

A description of the polygraph policy and operations of each of the seven components that use polygraph examination results follows.

Criminal Division

The Department’s Criminal Division and the 93 U.S. Attorneys have responsibility for overseeing criminal matters under more than 900 federal statutes as well as certain civil litigation. The Division also approves or monitors sensitive areas of law enforcement, such as participation in the WITSEC Program and the use of electronic surveillance. According to the Criminal Division, 4 of the 19 organizations within the Division oversee or use the results of polygraph examinations. From FY 2002 through 2004, the 4 organizations requested that the FBI and other law enforcement agencies conduct a total of 1,171 polygraph examinations. Each of the four organizations is described below.

Office of Enforcement Operations (OEO)

OEO provides U.S. Attorneys’ Offices with assistance on wiretaps, subpoenas, witness security, and prisoner transfers. OEO uses the results of polygraph examinations primarily to evaluate prisoner-witnesses seeking entry into the WITSEC Program. (See the box on page 136 for a description of polygraph usage in WITSEC.) The FBI conducts most of the examinations, but the OIG and the Secret Service have also conducted them for OEO. Although rare, OEO has asked the FBI and OIG to polygraph informants in undercover operations to verify their truthfulness.

The Chief of the WITSEC Security Unit and the Director of OEO and the WITSEC Program are responsible for overseeing polygraph examinations. They use the provisions of the U.S. Attorneys’ Manual, which contains Department policy and guidance for prisoner-witnesses seeking entry into the WITSEC Program.88

OEO Intelligence Analysts initiate requests for polygraph examinations via memorandums to the FBI, OIG, or Secret Service, depending on the availability of examiners. After an individual takes a polygraph examination, the examining authority (FBI, OIG, or Secret Service) submits a report on the results to OEO. Candidates for the WITSEC Program who fail a polygraph examination are not admitted to a BOP Protective Custody Unit.

About 7 months before an individual in a Protective Custody Unit leaves prison, the individual undergoes an exit polygraph examination. The purpose of this examination is to determine whether someone leaving the Protective Custody Unit is or is planning to exchange information on how to contact someone else in the unit. If the polygraph results are inconclusive, OEO authorizes another examination, but it never authorizes more than two. The conducting agency sends OEO the polygraph examination report. OEO maintains a copy of the report because it is ultimately responsible for the prisoners. The BOP also receives a copy. OEO provides the results of exit polygraph examinations to the USMS, which assumes responsibility for protecting WITSEC Program participants who are not incarcerated. OEO officials said that they do not know whether the agency conducting the polygraph examination (usually the FBI) keeps a copy of the examination records. The results of the polygraph examinations remain in OEO’s files as part of the prisoner-witness’s permanent record. OEO restricts access to those files to only WITSEC staff.

OEO officials said that neither the Department nor DoDPI has reviewed OEO’s use of polygraph examinations. Although DoDPI conducts biennial reviews of the polygraph programs managed by the FBI, OIG, and the Secret Service, the FBI conducts most of the examinations and it does not make those records available to DoDPI for review.

Domestic Security Section (DSS)

The DSS investigates and prosecutes criminal organizations that smuggle aliens, including those that could be used to smuggle terrorists into the United States. The DSS also investigates and prosecutes individuals that harbor aliens, provide false identification documents, and contract with smuggling groups to obtain illegal workers for factories and plants. The DSS sometimes supports bringing to the United States potential witnesses, such as persons who were being smuggled or are connected to the smuggling organization. DSS officials said that, while they themselves rarely, if ever, use polygraph examinations, they work closely with other agencies that may use polygraphs more frequently, such as the FBI and CIA. If the results of a polygraph examination are available and have any application to a DSS investigation, DSS officials may review the results of a polygraph examination because it may be relevant to assessing the reliability of a witness. DSS officials said that they recently concurred in a decision to polygraph two potential witnesses for national security purposes. The DSS uses Department regulations in the U.S. Attorneys’ Manual for guidance in their use of polygraph examinations. The DSS also reviewed the results of four polygraph examinations from FY 2002 through 2004.

Overseas Prosecutorial Development, Assistance, and Training (OPDAT)

OPDAT trains and provides technical assistance to foreign counterparts to develop reliable law enforcement partners overseas.89 OPDAT offers technical assistance, including arranging for and supporting polygraph examinations, to host countries that decide to establish vetted units staffed by investigators and prosecutors, as well as, in some instances, financial and administrative support staff. Host country officials choose the prosecutors and investigators for membership in the units and also determine whether the candidates will be vetted. OPDAT officials told us that only 4 percent of the approximately 70 countries that receive OPDAT technical assistance have been assisted with FBI polygraph services. If the host country request polygraph services, OPDAT arranges for FBI examiners to conduct the polygraph examinations to determine, for example, whether the foreign prosecutors have taken bribes or violated human rights laws in their countries.90 As shown in Table 3, during our study period, FY 2002 through 2004, the FBI conducted 725 polygraph examinations for OPDAT. However, OPDAT began using polygraph examinations in its programs in FY 1999. OPDAT officials reported in August 2006, that, over the life of the program, a total of 1,954 examinations have been conducted at OPDAT’s request:

  • FY 1999 - 162;
  • FY 2000 - 224;
  • FY 2001 - 198;
  • FY 2002 - 302;
  • FY 2003 - 136;
  • FY 2004 - 287;
  • FY 2005 - 420; and
  • FY 2006 - 225 (as of August 2006).

OPDAT does not have written internal policy or procedures for its use of polygraph examinations for foreign vetting. To initiate a polygraph examination, OPDAT personnel in Washington, D.C., forward a request to the FBI based on information received from an OPDAT office in another country. OPDAT staff work with FBI examiners to develop test questions, and the FBI Polygraph Unit uses OPDAT funding to send a group of examiners to the designated country to conduct the examinations. An individual who fails a polygraph examination is not allowed to work with a vetted task force and, in some countries, may be ineligible to receive OPDAT assistance. OPDAT relies heavily on polygraph examination results because of the limitations on the background investigations that can be done on foreign prosecutors. The results of an examination are reported to OPDAT and shared with the FBI Embassy Legal Attaché, Embassy Regional Security Officer, and the host country. A senior-level team leader supervises the FBI polygraph examiners in-country. OPDAT’s Resident Legal Advisors also provide oversight to the teams while they are in-country.

DoDPI has not reviewed OPDAT’s use of polygraph examinations for foreign vetting. OPDAT officials said they relied on the FBI to comply with federal standards. DoDPI has certified that the FBI’s polygraph program meets federal technical, professional, and ethical standards. However, DoDPI has not reviewed the FBI’s records of the OPDAT examinations or the OPDAT files.

Public Integrity Section

The Public Integrity Section prosecutes public corruption cases nationwide, typically working with the law enforcement agencies, especially the FBI and the OIG community, to investigate alleged crimes. The Public Integrity Section uses polygraph examinations in connection with criminal cases to verify the truthfulness of cooperating witnesses and informants, as well as the subjects of criminal investigations. The Criminal Division reported to us that polygraph examinations were used by law enforcement agents in 15 instances in matters handled by the Public Integrity Section in FY 2002 through 2004.

The Public Integrity Section follows Department polygraph policy contained in the U.S. Attorneys’ Manual.91 The Public Integrity Section does not have a formal process for initiating a request for a polygraph examination. Typically, the law enforcement agent that is working with the Public Integrity Section staff on an investigation will initiate the idea of using a polygraph examination as an investigative tool and officials in the Public Integrity Section will either object or agree to its use. Public Integrity Section officials said that law enforcement agents are more inclined to use polygraph examinations than others who are involved in their cases such as the prosecutor. All requests are handled by the law enforcement agency’s case agent who is working with the Public Integrity Section. Usually, the Public Integrity Section’s Deputy Chief and the trial attorney discuss a request from the case agent and decide whether to grant it based on the potential value of the examination results in the investigation. Their decision is conveyed to the case agent. Proposed subjects cannot be compelled to take a polygraph examination. Results of polygraph examinations are placed in the appropriate case files.

Public Integrity Section officials told us that their use of polygraph examinations has not been reviewed by DoDPI. However, the FBI and the OIG maintain copies of those polygraph examination records, and DoDPI may have reviewed the FBI’s or the OIG’s copies of some of the records during its biennial quality assurance reviews of the FBI’s and OIG’s polygraph program.

Justice Command Center

The JCC, which serves as a crisis center for the Department, is a branch of the Justice Management Division’s SEPS. The JCC is the primary crisis management facility for the Attorney General and other senior Department decision makers. It also functions as an around-the-clock contact point for all Department operations worldwide.

Because the JCC handles highly classified intelligence information, the JCC requires its employees and job recruits to pass a narrowly focused, counterintelligence-scope polygraph examination as part of the security clearance process. The JCC established the requirement for polygraph examinations in 1987 at the request of the National Security Agency, which was the controlling authority for some of the cryptographic information and information systems accessed by JCC personnel.92

The JCC has 15 positions subject to mandatory polygraph examinations. Three personnel security polygraph examinations were conducted by the FBI for the JCC in FY 2002 through 2004.93

The JCC is the only one of the seven users discussed in this section that OPM has authorized to use polygraph examinations for personnel security screening. In October 1987, as then required by federal regulations,94 the Department’s Assistant Attorney General for Administration applied to the OPM Director for authority to require polygraph examinations of the JCC’s competitive service employees and any future recruits. On November 24, 1987, the OPM Director granted authority to the Department to conduct polygraph examinations of JCC personnel with access to cryptographic keying material and SCI. OPM required that the Department reapply each year for continued authority to polygraph its personnel. Records OPM provided to us show that the Assistant Attorney General for Administration reapplied to OPM in FY 1988 through 1995 and that the OPM Director approved each reauthorization request through September 30, 1996. OPM officials said they had no record of reauthorization requests by the Department in FY 1997 through 2004, and JCC officials could not provide us any additional authorizations.

On November 23, 2005, after we asked to review JCC records of reauthorization requests, the Department applied for reauthorization to use polygraph examinations for JCC personnel. In early May 2006, OPM officials told us that their reauthorization letters to all agencies had been delayed while OPM officials reviewed OPM’s authorities for requiring reauthorizations and revised the language contained in previous authorization letters to federal agencies.95 However, on May 12, 2006, OPM officials grant JCC’s authorization to use polygraph examinations for pre-employment and personnel security screening for FY 2006.

The SEPS Director authorizes requests for polygraph examinations for JCC job applicants. A supervisory security specialist in the JCC has managerial responsibility for the polygraph process. JCC job announcements indicate that successful completion of a background investigation, including a polygraph examination, is a mandatory condition of employment. Applicants who refuse to take a polygraph examination are not considered for employment in the JCC. If applicants are currently employed in the Department, the refusal to take the polygraph examination is not made a part of their personnel file.

After selecting a candidate, the JCC supervisor sends a memorandum to the FBI requesting an examination, and the FBI examiner contacts the applicant to schedule the examination. According to the Department’s JCC polygraph regulations, the scope of the polygraph examination is limited to questions related to counterintelligence, and a list of the questions is provided to the job applicant before testing begins. The FBI conducts the examination and forwards a report on the results to the SEPS Director, who is responsible for adjudicating personnel security decisions.

The Department’s use of polygraph examinations for JCC personnel has never been reviewed by DoDPI as part of the federal quality assurance program. Also, records of examinations conducted by the FBI for the JCC have never been reviewed by DoDPI inspectors during quality assurance reviews of the FBI’s polygraph program because the FBI did not allow DoDPI to begin reviewing its personnel security examination records until DoDPI’s last review of the FBI polygraph program in December 2005.

Antitrust Division

The ATR enforces antitrust laws to protect the competitive process from prohibited practices such as price-fixing and bid-rigging conspiracies, corporate mergers likely to reduce competition, and business practices designed to achieve or maintain monopoly power. The ATR prosecutes serious and willful violations of the antitrust laws by filing civil and criminal suits. Criminal prosecutions can lead to large fines and jail sentences.

The ATR uses polygraph examinations only in connection with criminal investigations. The ATR is involved in about 100 criminal investigations each year. It has used polygraph examinations only twice from FY 2002 through 2004. The examinations were conducted at the ATR’s request by the FBI and the U.S. Army Criminal Investigation Command.96

The ATR has no internal policies or procedures for using polygraph examinations and no formal process for requesting other agencies to conduct examinations for the ATR’s use. However, the ATR’s Director of Criminal Enforcement said that he had attended an FBI class on the uses of polygraph examinations. The ATR’s Director of Criminal Enforcement said that an investigating agency or a defendant’s attorney probably requested the two examinations conducted during our study period. Before making a request for an examination, a federal agent discusses the potential use of an examination with the ATR’s Director of Criminal Enforcement and litigation staff, according to the Director. A defendant’s attorney may also request a polygraph; however, the Director said that he usually denies defense attorneys’ requests if ATR staff members believe they already have sufficient evidence to prove their case. If the Director approves a request for a polygraph examination, the investigating agency conducts the polygraph examination and reports the results to the ATR. According to the Director, the results of an examination may influence an ATR investigation, but the ATR would not enter the results of a polygraph examination as evidence at trial.

National Drug Intelligence Center

The NDIC, located in Johnstown, Pennsylvania, is responsible for the production of domestic, strategic, drug-related intelligence. When the NDIC was created in 1992, it was organized under the FBI. The NDIC was reorganized in 1996 as a separate component of the Department of Justice.

The NDIC’s Office of Security and Classified Programs uses polygraph examinations for pre-employment screening. From FY 2002 through 2004, the NDIC’s Office of Security and Classified Programs asked the FBI to conduct 72 polygraph examinations for its use in screening job applicants who had received conditional offers of NDIC employment.

In 1997, the Department gave the NDIC Director approval to hire NDIC employees into the excepted service and to use pre-employment polygraph examinations in its hiring process.97 The Department’s Director of Personnel asked the NDIC to develop written internal policy addressing why polygraph examinations were necessary, who would be subject to polygraph examinations, and how the examinations would be conducted. NDIC Procedure Number SEC-26, “Security Program Unit Hiring Process for New Employees,” provides policy and implementing guidance for the NDIC’s use of polygraph examinations. According to SEC-26, all new employees hired from outside the federal government, including those working with government contractors at the time of hire, are required to pass a full-scope, pre-employment polygraph examination before assuming a position at the NDIC. NDIC policy does not specifically require new hires from within the federal government to pass a polygraph examination. An NDIC official told us that the NDIC usually waives the requirement for a polygraph examination for new hires who are already working in the federal government and who have Top Secret security clearances issued by another agency.

NDIC vacancy announcements include a notice that a polygraph is required for employment and that an applicant who refuses to take a polygraph examination will not be hired. After the NDIC Human Resources Office makes an applicant a conditional offer of employment, a member of the Office of Security and Classified Programs makes a direct request to an FBI examiner located in the NDIC’s geographic region. The FBI conducts most of the examinations at the NDIC facility in Johnstown. The FBI examiner provides a copy of the results of the examination as well as the polygraph test charts to the NDIC’s Chief of the Office of Security and Classified Programs. According to the Chief, four people in his office (including the Chief) have authority to adjudicate personnel security decisions based on the results of polygraph examinations.

If the FBI examiner detects indications of deception during the initial polygraph examination, the NDIC’s Office of Security and Classified Programs notifies the Human Resource unit of the test results, and the Human Resources unit sends a letter to the applicant withdrawing its conditional offer of employment. However, if after receipt of the letter, the applicant submits a formal request for a retest, a second polygraph is generally granted. If the applicant does not pass the second examination, the applicant cannot be hired because the applicant does not meet the requirements of the job. If an applicant passes, the Security Office advises the Human Resources unit to proceed with the hiring process.

DoDPI has not reviewed the NDIC’s use of polygraph examinations or its polygraph activities. However, the FBI maintains copies of the NDIC’s polygraph examination records, and DoDPI may have reviewed the FBI’s copies of some of the records during its biennial quality assurance reviews of the FBI’s polygraph program.98

Office of Professional Responsibility

The Department’s OPR was established by the Attorney General in 1975. It has the jurisdiction:

to investigate allegations of misconduct by Department of Justice attorneys that relate to the exercise of their authority to investigate, litigate, or provide legal advice; and to investigate allegations of misconduct by law enforcement personnel when they are related to allegations of misconduct by attorneys with the jurisdiction of OPR.99

OPR can use the results of polygraph examinations, which the FBI conducts for OPR, as an investigative tool in criminal and administrative misconduct investigations. OPR’s investigations also may involve agents and witnesses who have already taken a polygraph examination. OPR officials told us that they had not requested a polygraph examination since before FY 2001.

According to an OPR official, a request for a polygraph examination would be initiated by an OPR team conducting an investigation. The OPR Counsel and Deputy Counsel review requests for polygraph examinations; if they approve the request, the OPR Counsel asks the FBI to arrange and conduct the examination. The FBI sends a report on the results of the polygraph examination to OPR, which may or may not include it in its final investigative report. An OPR official told us that, in the past, polygraph examinations have only been conducted when the proposed test subject has voluntarily consented to the examination.

Federal Bureau of Prisons

The BOP is responsible for the administration of 106 institutions, 6 regional offices, a Central Office (headquarters), 2 staff training centers, and 28 community corrections offices. It is responsible for the custody and care of approximately 185,000 federal offenders.

The BOP uses polygraph examinations as an investigative tool in administrative investigations of BOP employees, as a condition for inmates’ entry into the WITSEC Program, and as a condition for participation in the BOP’s Sex Offender Treatment Program (SOTP).100 BOP units used the results of 435 polygraph examinations in FY 2002 through 2004. The following sections detail the BOP’s uses of polygraph examinations.

Office of Internal Affairs

The BOP’s Office of Internal Affairs (OIA) is a branch of the Office of General Counsel and Review. In coordination with the OIG, it is responsible for investigating allegations of administrative misconduct by BOP employees. The OIA uses the results of polygraph examinations that the FBI or the OIG conducts of subjects, witnesses, and complainants in administrative investigations into alleged misconduct. The OIA requested 21 polygraph examinations during administrative investigations from FY 2002 through 2004. The OIG conducted 17 of the examinations, and the FBI conducted 4. Fifteen of the polygraph examinees were the subjects of misconduct investigations, four were alleged victims, and two were complainants.

BOP Program Statement 1210.24 provides policy and guidance for the use of polygraph examinations in administrative investigations.101 All requests for polygraph examinations regarding staff misconduct must be coordinated through the OIA. When considering a request for a polygraph examination, a “Chief Executive Officer” discusses the matter with the OIA Chief and receives the Chief’s approval prior to arranging an examination.102 The OIA Chief has the sole authority to approve the use of a polygraph examination during the course of a BOP-run investigation into staff misconduct.103 According to BOP internal policy (Office of Internal Affairs Program Statement 1210.24, May 20, 2003), neither BOP staff nor its prison inmates can be compelled to take a polygraph examination. BOP staff and inmates must voluntarily consent in writing prior to undergoing an examination.

All requests for polygraph examinations regarding staff misconduct must be coordinated through the OIA. Office of Internal Affairs Program Statement 1210.24 says that, whenever possible, the BOP should use the FBI or OIG Polygraph Unit examiners to conduct the examinations.104 The examiners then provide the OIA with a written report of examination results that becomes part of the investigation record, although the OIA may or may not mention the results of a polygraph examination in its final investigative report. The final investigative report is provided to the warden of the institution that employs the subject of the investigation and to the BOP Assistant Director who makes the decision on appropriate disciplinary action.

OIA officials told us that the OIA’s use of polygraph examinations has not been reviewed by the BOP, the Department, or DoDPI. The OIA relies on the FBI and OIG examiners conducting the examinations to comply with federal polygraph standards. DoDPI reviews both the FBI and OIG polygraph programs as part of the federal quality assurance review program. The OIG provides its files for DoDPI reviews and, consequently, the OIA files may have been included in a DoDPI review. However, the FBI does not allow DoDPI to review its records of examinations conducted as part of a misconduct investigation.

WITSEC Program

All BOP prisoners seeking entry into the Criminal Division-run WITSEC Program are required to take polygraph examinations to determine whether they can be placed in a BOP Protective Custody Unit. (See box on page 136 for an overview of the WITSEC Program.) The BOP has seven Protective Custody Units that house program inmates. The Criminal Division, working through the BOP, uses polygraph examinations as a tool for maintaining the security of prisoner-witnesses and to help determine whether an inmate seeking admission to the WITSEC Program intends to harm another WITSEC Program inmate. If prisoner-witnesses fail the polygraph examination, they may or may not be accepted into the WITSEC Program. If they fail, but are still accepted into the program, they may not be housed in a Protective Custody Unit.

The Criminal Division, working through the BOP, also requires prisoner-witnesses in the WITSEC Program to take a polygraph examination before leaving a BOP facility. The purpose of the second polygraph, according to BOP officials, is to deter prisoner-witnesses from sharing information about other WITSEC inmates. Prisoner-witnesses know they have to undergo a polygraph and, if they believe a polygraph examination would detect this activity, they may be less likely to share information about other inmates. The Criminal Division contacts the FBI or the OIG to conduct the examinations for the BOP. In FY 2002 through 2004, the FBI and the OIG conducted a total of 338 polygraph examinations of proposed WITSEC inmates in BOP institutions.

The BOP WITSEC Program Chief is responsible for managerial oversight of the BOP’s role in the WITSEC Program. BOP Program Statement 5180.04, “ Central Inmate Monitoring System Operations Manual,” August 16, 1996, Chapter 8, provides internal guidance for temporary designations of WITSEC cases.105 The BOP Chief of the WITSEC Program said that neither the Department nor DoDPI had reviewed the BOP’s use of polygraph examinations for the WITSEC Program. As previously discussed, the FBI does not open its WITSEC polygraph examination files to DoDPI’s quality assurance reviews.

Sex Offender Treatment Program (SOTP)

The BOP’s SOTP is located at the Butner Federal Correctional Institution in North Carolina. The SOTP is a voluntary program that can accommodate up to 112 of the approximately 12,000 federal inmates that are convicted sex offenders. Each institution at the Federal Correctional Complex in Butner has a Chief Psychologist. The Chief Psychologist for the Psychological Services Department at the Federal Correctional Institution (Medium), Butner, has overall responsibility for the SOTP. Authority for conducting polygraph examinations for the SOTP comes from the Assistant Director of Correctional Programs, BOP Central Office. All SOTP participants must voluntarily agree to undergo a polygraph examination as a condition for admission to the program. However, an inmate’s admission to and retention in the SOTP are not contingent on the results of the polygraph examinations. Participants may undergo an additional examination sometime later in the course of treatment as clinically indicated. Additional polygraph examinations may be conducted at the discretion of the United States Probation Office.106

The SOTP at Butner began in 1989, but SOTP officials did not begin using polygraph examinations until FY 2002. In FY 2002 through 2004, the SOTP examiner conducted a total of 76 polygraph examinations. The SOTP polygraph examiner is a psychologist who was trained to conduct criminal investigative and national security screening examinations at DoDPI. He also received advanced training at DoDPI in the use of polygraph examinations in the treatment of sex offenders.

SOTP staff told us that polygraph examinations are used for non-investigative, post-conviction sexual histories and as an aid in managing the potential risks inmates pose to the community after they are released from prison. The questions used for polygraph examinations conducted in the treatment of sex offenders are different from those used in other types of examinations (for example, criminal investigations and personnel security screening). The examiner asks deliberately broad questions that are designed to encourage inmates to be truthful about the full parameters of their past criminal behavior. Although inmates are encouraged to be truthful, they are not required to disclose self-incriminating aspects of their past criminal behavior. Inmates are informed that, if they elect to do so, they risk criminal prosecution. For example, the inmates are encouraged to reveal whether they raped someone in the past, not who they raped or where the crime was committed because the information is used for clinical, not investigative, purposes.

Bureau policy establishes the general requirement that an inmate entering the SOTP have a maximum of 24 months and a minimum of 12 months remaining on their current incarceration period. A polygraph examination is administered toward the end of the treatment program to confirm the inmate’s self-reported sexual offence history. The results of the polygraph examination contribute to the final risk assessment and are incorporated into the inmate’s risk management plan for community supervision.107

SOTP staff told us that the only oversight mechanism for the SOTP is self-auditing by the staff. In August 2006, BOP officials reported that the SOTP had developed an informal peer review process concerning technical issues such as test question construction with other practitioners specializing in examining sex offenders.

Nonetheless, the SOTP does not have an internal process that provides for a quality control review of 100 percent of the examinations as required by federal polygraph standards, and SOTP officials have declined to participate in the federal quality assurance review program administered by DoDPI.

In August 2006, DoDPI officials told us that significant decisions are being made based in part on the results of polygraph examinations conducted by the SOTP. DoDPI officials also stated that although these SOTP polygraphs are being conducted under the auspices of the Department of Justice, the quality of the work product is not known because the SOTP polygraphs have not been subjected to standard quality assurance reviews through the federal Quality Assurance Program administered by DoDPI. DoDPI also said that most of the federal agencies participating in the program at one time considered this oversight unnecessary, but in every instance those agencies have found great benefit in adopting standardized procedures. DoDPI officials suggested that both the BOP’s SOTP and the USMS’s WITSEC Program adopt a quality control process that ensures an independent and objective review of all examination records before a final opinion on the results is rendered and that they be required to undergo biennial quality assurance reviews in compliance with federal polygraph standards.

United States Marshals Service

The USMS mission is to provide support to all elements of the federal justice system, including protecting the federal judiciary and apprehending fugitives. The USMS uses polygraph examinations for administrative investigations involving USMS personnel and for individuals in the WITSEC Program who are not incarcerated and claim their security has been breached. From FY 2002 through 2004, the USMS requested 16 polygraph examinations of witnesses in the WITSEC Program, but none for administrative investigations.

The FBI and a contractor who is a retired USMS WITSEC Program Inspector administer examinations for USMS. The USMS has no internal policy or regulations addressing the use of polygraphs and no quality control or oversight of the polygraph examinations conducted by the USMS’s contractor as required by federal technical standards.

Operations Support Division

In coordination with the OIG, the Operations Support Division, Office of Internal Investigations (OII) oversees administrative investigations involving USMS personnel. According to USMS, when a dispute or discrepancy arises during the course of an OII investigation, the OII Inspector can offer the subject or witness the opportunity to take a polygraph examination. The individual must sign a form to accept or decline to take a polygraph examination. According to USMS officials, most individuals refuse this offer and no action is taken against those who refuse. If an individual accepts, the OII will ask the FBI to arrange and conduct the examination. The OII Inspector works with the FBI examiner to formulate questions for the examination.108 Examination results are sent to the OII Inspector and included in the case file. Along with the OII Inspector’s findings, polygraph results are ultimately used by the USMS Discipline Panel assigned to make a determination in the administrative investigation. Neither the Department nor any other entity has reviewed the USMS’s polygraph activities. According to USMS, no polygraph examinations were conducted for OII from FY 2002 through 2004.

Polygraph Usage in the Federal
Witness Security Program

The WITSEC Program was established to provide protection and security for witnesses in official proceedings. The program involves three Department components – the Criminal Division, BOP, and the U.S. Marshals Service – and, for some witnesses, requires polygraph examinations.

Criminal Division. The WITSEC Program is overseen by the Criminal Division’s OEO, which is responsible for authorizing or denying applicants to the WITSEC Program and for coordinating matters related to the program with the BOP and USMS. Polygraph examinations for non-incarcerated witnesses seeking entry into the WITSEC Program are voluntary. The FBI conducts most of the polygraphs for OEO. According to the Criminal Division, a total of 427 polygraphs were conducted for OEO from FY 2002 through 2004 and another 175 in FY 2005, for a total of 602 examinations.

BOP. Individuals incarcerated in BOP facilities that seek entry into the WITSEC Program are required to have a polygraph examination before entering a BOP Protective Custody Unit. If granted entry into the WITSEC Program, these witnesses are also required to take a polygraph examination before leaving a BOP facility. The FBI or the OIG conducts these examinations. According to the BOP, 338 polygraphs were conducted of federal inmates for the WITSEC Program from FY 2002 through 2004, which are part of the 427 examinations reported by OEO.

USMS. Non-incarcerated witnesses in the WITSEC Program who claim that their security has been breached are asked to take a polygraph examination by the USMS, the agency responsible for providing protection to these individuals. The examinations are conducted by either ATF or a private contractor (a retired USMS WITSEC Inspector). According to the USMS, the contractor (11) or ATF (5) conducted 16 polygraph examinations from FY 2002 through 2004.

WITSEC Program

The USMS’s WITSEC and Prisoner Operations Division is responsible for providing security for protected witnesses who are not incarcerated and their families. The USMS provides 24-hour protection to these witnesses while they are in a high-threat environment, including while attending pretrial conferences, testifying at trial, and attending other court appearances. In certain cases, a protected witness will claim that a security breach has occurred, but the USMS cannot independently corroborate the breach. In those cases, the USMS will request that the witness take a polygraph examination as a means of confirming that a security breach has really occurred before the USMS permanently relocates the witness for their safety. The USMS uses the examinations to deter protected witnesses from falsely claiming they are in danger because they want to move. Witnesses who believe that a polygraph examination would detect deception are less likely to make false claims. Witnesses will often admit to the security breach or their false claims of a security breach with the threat of a polygraph examination. According to a WITSEC Supervisory Inspector, if WITSEC participants refuse, they most likely would be removed from the program.

In FY 2002 through 2004, USMS officials used the results of 16 polygraph examinations conducted by either ATF (5) or a private contractor (11). A WITSEC Chief Inspector told us that he would use more polygraph examinations in the WITSEC Program if he had a dedicated USMS polygraph examiner.

USMS officials said they had no formal internal policy for conducting polygraph examinations of witnesses. However, they do follow the provisions of Title 9, Chapter 21, of the U.S. Attorneys’ Manual that provides Department policy for witness security. USMS officials said there has been no internal review or DoDPI review of their use of polygraph examinations.

Also, the USMS has not established an internal quality control program or procedures that ensure an independent and objective review of all examinations conducted by its contractor. Federal standards require that agencies provide for a technical review of all examination records by a certified federal examiner before a final opinion on the examination results is rendered. However, there was no independent technical review of the 11 examinations conducted by the USMS contractor from FY 2002 through 2004.

DoDPI officials said that the use of contractors to conduct polygraph examinations is a common practice throughout the federal government. Federal agencies that use contractors, however, must ensure that those contractors conduct polygraph examinations in compliance with established technical standards by providing quality control reviews. According to Chapter C2 of the Federal Examiner Handbook, the USMS can do that by either: (1) hiring a certified federal examiner to conduct quality control reviews and oversee the examinations conducted by its contractor, or (2) entering into an agreement with another federal agency to obtain quality control services. USMS officials recently told DoDPI officials that they had decided not to hire a senior federal examiner or to establish a USMS polygraph program.109 DoDPI officials maintain that without the required oversight, the quality of the decisions being provided the USMS cannot be established.

  1. The same polygraph examinations reported in this section as requested by the seven user components were also reported by the FBI in its number of polygraph examinations conducted for other agencies.

  2. As described in the Introduction section, the Department has policies and procedures dealing with the use of polygraph examinations in criminal investigations, prosecutions, and the Witness Security Program that apply to all of its components.

  3. The purpose of Title 9, Chapter 9-21 of the U.S. Attorneys’ Manual is to provide information and guidance to Department attorneys with respect to the Witness Security Reform Act of 1984, Part F of Chapter XII of the Comprehensive Crime Control Act of 1984 (Pub. L. No. 98-473). According to Section 9-21.340, Polygraph Examinations for Prisoner-Witness Candidates, “A polygraph examination is required of all Witness Security Program candidates who are incarcerated....” The U.S. Attorneys’ Manual further provides that candidates must consent to take an examination in writing.

  4. The Department of State provides funding for technical assistance to OPDAT through an interagency agreement.

  5. According to OPDAT officials, if FBI examiners are not available, OPDAT asks the DEA to conduct an examination.

  6. Title 9, Chapter 13 of the U.S. Attorneys’ Manual, Section 9-13.300, Polygraphs – Department Policy, states that 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. Government attorneys should refrain from seeking the admission of favorable examinations that may have been conducted during the investigatory stage.... Given the present theoretical and practical deficiencies of polygraphs, the government takes the position that polygraph results should not be introduced into evidence at trial. On the other hand, in respect to its use as an investigatory tool, 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. This limited use should be effectuated by using the trained examiners of the federal investigative agencies, primarily the FBI, in accordance with internal procedures formulated by the agencies....”

  7. At the time, NSA and CIA employees with similar access were required to take polygraph examinations. The JCC’s employees who were hired before 1987 had never been tested, but volunteered to be tested when asked in 1987.

  8. Only three JCC employees were hired during this period. The remaining employees had previously submitted to mandatory polygraph examinations during their pre-employment hiring process or when the requirement was established in 1987.

  9. See Subchapter 2-6 of the Federal Personnel Manual, dated January 6, 1984, regarding federal requirements for using polygraph examinations in personnel investigations.

  10. OPM’s reauthorization of the JCC’s use of polygraphs was also delayed because the FBI, which conducts the examinations for the JCC, had not provided OPM with a copy of its most recent DoDPI quality assurance review report, as required by OPM. (OPM’s requirement to submit a copy of a DoDPI quality assurance review report was probably instituted sometime after 1995, that is, after the Federal Personnel Manual was retired. A review of OPM’s authorization of the DEA’s program, for example, showed that OPM’s requirement for a copy of a DoDPI report was not in its FY 1994 or FY 1995 authorization letters to the DEA.) This is the first time that OPM has asked for a copy of the FBI’s DoDPI quality assurance report and OPM is still in discussion with OPM about the necessity of providing the report as a precondition for approving the request for JCC reauthorization.

  11. The Army Criminal Investigation Command polygraphed one of the subjects in a now-closed investigation into bidding irregularities on a major contract and possible acceptance of gratuities from the winner of that contract. It did not cover criminal antitrust issues (collusion) because there was no such evidence at the time (or subsequently). The Army Criminal Investigation Command, which had initiated and formed a multi-agency task force to handle the investigation, arranged for the polygraph. The ATR did not request the polygraph, but did approve it.

  12. Most federal government civilian positions are part of the competitive civil service, which means they must compete with other applicants according to competitive civil service procedures. Agencies’ compliance with those procedures is overseen by OPM. Excepted service agencies, like the NDIC, are excluded from the competitive civil service procedures and OPM oversight. In 1997, OPM officials wrote to the Department saying that the NDIC did not need OPM approval to use pre-employment polygraph examinations because its employees were in the excepted service.

  13. We were unable to determine if the NDIC’s polygraph examination records were included in DoDPI’s review of the FBI’s polygraph examination records.

  14. 28 C.F.R. Sec. 0.39a (a).

  15. A BOP warden also may permit an inmate to take a polygraph examination in connection with a state or federal criminal felony investigation if the inmate consents to the examination. Program Statement 5110.13, “Administering of Polygraph Tests,” December 15, 1999, details the procedures for requesting and administering a polygraph examination of a federal inmate. All requests for polygraph testing must be approved by the warden of the institution where the inmate is incarcerated.

  16. See Program Statement 1210.24, “Office of Internal Affairs,” May 20, 2003, for details of the procedures for reporting allegations of misconduct to the OIA.

  17. A Chief Executive Officer can be a warden of a correctional facility, director of a staff training center, Regional Director of a regional office, or Assistant Director of a division at the BOP’s Central Office.

  18. OIA approval to use a polygraph examination is not necessary in cases unrelated to staff misconduct or when outside authorities, such as the OIG, are conducting an external investigation of staff misconduct.

  19. If an FBI or OIG polygraph examiner is not available, OIA personnel may get a local police department to conduct an examination. This has happened only two or three times since calendar year 2000.

  20. The BOP’s Inmate Monitoring Section receives applications from prisoner-witnesses seeking entry into WITSEC and designates those prisoners as temporary WITSEC cases until they undergo commitment interviews and polygraph examinations.

  21. The BOP has no jurisdiction over inmates once they are released from their terms of incarceration. The level of monitoring and any frequency in the administration of polygraph examinations would be solely determined by probation officials.

  22. During probation, inmates also may be required to undergo polygraph examinations that are used as a monitoring tool. Inmates are monitored closely for up to 3 years after their release and may be subject to polygraph examinations every 6 months. However, those examinations are not conducted by the SOTP examiner.

  23. On rare occasions, the FBI examiner, after reviewing the case, may determine that the administrative investigation is not a good case for a polygraph examination and decline to administer one.

  24. In November 2004, DoDPI and USMS officials discussed the possibility of the USMS initiating a formal polygraph program in support of its WITSEC mission. However, in FY 2005, the USMS told DoDPI officials that it was not going to pursue its own program.

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