Last year more than 73,000 Americans underwent a polygraph examination in an effort to obtain or keep their job with the federal government, yet, according to models created by the National Academies, there may be thousands of people who are identified as lying during their polygraph examinations when they are in fact being entirely truthful. Applicants and federal employees who are identified as lying may have their applications denied or their clearances revoked yet cannot contest the results of their polygraph examination as the records are largely unavailable. Polygraph records are largely unobtainable through the court system and employees seeking such records are usually directed to file open record requests with the very agencies which revoked their security clearance or declined to employ them. Unsurprisingly then, open record requests are frequently denied and even when they are granted; they are usually heavily redacted for national security purposes.
The government contends that in working with or seeking to work with classified information, one implicitly accepts that their background may be subject to intense scrutiny and that the lack of available information is a means of protecting the polygraph procedure from being cheated. Proponents of the system argue that polygraphers employed by the government are required to undergo a three-month training seminar at the National Center for Credibility Assessment (“NCCA”) and that the organization reviews tests to ensure “ethical, professional and technical standards” are met. Critics, however, contend that the process – which is shrouded in secrecy – is subject to routine abuse, especially given the lack of Congressional oversight. Indeed, Congress has not inquired into the subject since an April 25th, 2001 hearing by the Senate Judiciary Committee on the “Issues Surrounding The Use Of Polygraphs”. Congress’ abdication from the subject is especially troubling in light of a 2003 report by the National Academies entitled “The Polygraph and Lie Detection”. The report concluded that, having, “review[ed] the scientific evidence on the polygraph with the goal of assessing its validity for security uses, especially those involving the screening of substantial numbers of government employees. Overall, the evidence is scanty and scientifically weak.” Since the report was published, 15 federal agencies have not only continued to use the polygraph but have extended their screening efforts.
Information obtained during polygraph examinations is retained indefinitely and can be used against applicants seeking other federal jobs or those seeking to reapply for their own security clearance. Michael Pillsbury found this out the hard way; Pillsbury, a former advisor to President George W. Bush and a Chinese foreign policy expert discovered that while reapplying for his security clearance, polygraphers working for the CIA had accused him of making multiple confessions which he claimed he had never made. When Pillsbury attempted to obtain the recordings of his polygraph interviews, the CIA declined and stated that “the constitutional right to due process didn’t apply to polygraph screening.” Eventually, Pillsbury was able to make an end-run past the CIA’s obstructionism through an appeal to the Defense Office of Hearings and Appeals, a panel of administrative judges designed mainly to hear the appeals of consultants and contractors. However, Pillsbury’s situation raises troubling questions. Given the purported inaccuracy of information obtained during a polygraph, should the government be able to use information of dubious value against its employees? Can the government use information obtained through polygraph examination against screened parties and subsequently refuse to turn over the necessary documents which could be used to rebut such charges? Although such questions merit serious consideration, given the national security apparatus’ dependence on polygraphs and Congress’ silence on the subject, it seems that they are questions likely to remain unanswered for some time to come.