Virginia Democratic Party Chairwoman Susan Swecker is in studio. And Aisha Braveboy, candidate for Prince George's State's Attorney, joins us.
The use of polygraph testing by federal agencies has grown dramatically in the last decade, despite the concerns of many scientists who still question the validity of the testing method. A new investigative series by McClatchy Newspapers highlights one agency’s use of lie detector tests on their current and prospective employees, and asks whether the agency’s actions are legal. It also explores what responsibilities the government has should it uncover criminal behavior. Join Kojo to explore how polygraph tests are used within the government, whether national security concerns changed their role and the extent of responsibility the government takes on when reaching into an individual’s private life.
- Marisa Taylor Investigative Reporter, McClatchy Newspapers
MR. KOJO NNAMDIIt's an examination many federal employees and contractors face with dread, a lie detector test. Mostly these screenings can be fairly mundane for workers whose jobs require security clearances. And federal agencies say that despite scientific questions about its accuracy and effectiveness, the information they glean during polygraph tests help them find undesirable employees who otherwise would not be discovered during background checks. By law lie detector examiners can only go so far when questioning their subjects.
MR. KOJO NNAMDIBut now an investigation by McClatchy Newspapers has discovered that at the nation's spy satellite agency, polygraph examiners may have overstepped those limits by extracting personal confessions from employees. The investigation even found that some people confessed to crimes but that law enforcement was not notified. So just how far is too far during a lie detector test? What kinds of questions does the law allow and what protections are in place for workers who face these tests?
MR. KOJO NNAMDIJoining us in studio to have that conversation is Marisa Taylor, investigative reporter for McClatchy Newspapers. Marisa Taylor, thank you very much for joining us.
MS. MARISA TAYLORThank you for having me on.
NNAMDIIf you have comments or questions, you too can join this conversation. Call us at 800-433-8850. Have you ever taken a polygraph test for a job? Did you think it was fair? Did it go too far? 800-433-8850. Marisa, you began investigating polygraphing procedures at the National Reconnaissance Office early this year. First, tell us a little bit about what that office does and how your investigation got started.
TAYLORWell, they oversee spy satellites for this nation and they are a spy agency. And as part of the intelligence community they see polygraph as important to screening employees for certain types of jobs where they have information that they don't want leaked or they have concerns that maybe a spy or a terrorist would infiltrate their program. And I was actually contacted by someone who had concerns about this agency. And they themselves were conducting these polygraphs. And they were an experienced polygrapher who had worked at many agencies before this and felt like this agency was crossing the line.
TAYLORNow the line is difficult to -- you know, it's difficult to decide, yeah. It's -- in the Defense Department, agencies have agreed to limit their questions during a polygraph test to questions having to do with classified information, with spying, with terrorism. But they are not authorized to seek out -- directly seek out information about people's personal lives such as, have you done drugs. The only agency within the Pentagon...
NNAMDII was about to say, that's the Defense Department.
NNAMDIYou're still within the Pentagon but how wide spread is polygraphing in the federal government? What other agencies use them?
TAYLORActually, a wide array of agencies use polygraph at this point. The Department of Energy -- and they're not only spy or intelligence agencies that rely on them. And the FBI for example requires polygraphs for their agents -- their federal agents.
NNAMDIDo the rules tend to be different when -- if they're in the Defense Department as opposed to if they're in the Department of Energy or some other agency?
TAYLORGenerally there is sort of this loose procedure that everyone recognizes, which is very few agencies are allowed to ask personal questions. Most agencies are supposed to stick to these intelligence national security types of questions. The CIA is allowed to ask people if they've used drugs or if they have committed an undisclosed crime. Same with the NSA.
NNAMDINational Security Agency.
TAYLORYes. And -- but there are a very limited number of agencies. The FBI also is allowed to ask such questions. But the problem becomes when the polygraphers themselves feel that they are being pushed to go after highly, highly personal information that has nothing to do with national security.
NNAMDIWhen a line, in their view, is crossed. What kinds of questions do most prospective federal employees get when they take a lie detector test?
TAYLORIf you -- generally...
NNAMDI...if not personal.
TAYLORGenerally, if you are at an agency that sticks to this counterintelligence scope polygraph, which is this test that is supposed to stick to the questions about spying and terrorism, you would be asked about whether you've divulged classified information to a foreign intelligence agency. In other words, are you a spy? And at the CIA, they also have limited questions, even though they ask more personal questions. They ask have you used any drugs in the last -- I believe it's in the last five years, but a certain period of time.
TAYLORAnd -- but they -- if you go beyond those questions, it then becomes sort of this, in the minds of the people who are experienced with these sort of things, a fishing expedition.
NNAMDIWe're talking with Marisa Taylor. She is an investigative reporter for McClatchy Newspapers. And we're talking about alleged government misuse of polygraphs or lie detectors and executive power. Inviting your calls at 800-433-8850 or you can send us email to firstname.lastname@example.org. Does the government, in your view, need to know the intimate details of our lives to keep the country safe? Should government agencies rely on polygraphs to screen employees? 800-433-8850 You can send us a Tweet at kojoshow or simply go to our website kojoshow.org and join the conversation there.
NNAMDIYou found that there are some eight Pentagon polygraph programs that can directly ask only about national security issues. What kinds of questions are we talking about there?
TAYLORWe're talking about whether someone has spied, whether someone...
TAYLOR...has leaked. Now it's actually directly authorized. President Obama authorized the direct question of have you disclosed information that is obviously to the media now at this point, because they've become...
NNAMDIThey expanded the kinds of questions asked by the CIA, the FBI and 14 other intelligence agencies to include questions about leaks.
TAYLORExactly. And again the concern becomes -- you know, it's a technique that many people in this community believe can be effective at rooting out people who may be hiding something that -- like a crime or hiding the fact that they're a spy. But there are so many questions about this technique scientifically that people who worry about this technique wonder if they're expanding too quickly. And now at this point in the Defense Department alone they conduct 46,000 of these types of polygraphs. And other agencies also have expanded their use.
NNAMDITen years ago, the National Academy of Sciences advised the government not to use polygraphs because they were so unreliable. But last year, you mentioned -- let's get to the confession part -- now almost half of the 750 or so confessions that the National Reconnaissance Office collected were of a personal nature. Why is that number remarkable?
TAYLORBecause it shows that this agency that perhaps it supports the allegation by the people I talk to that this agency is going beyond their scope -- their authorized scope, which is only to ask about spying and terrorism and classified information. Instead they're asking people about whether they smoked pot in high school. And the agency itself says they are not directly asking that, that people are just confessing to this, blurting it out even before the polygraph begins.
TAYLORBut the people I talk to who actually do these kinds of tests say that's highly unlikely and they doubt that explanation. They say that this is...
NNAMDI...the people are not saying, well, since I'm on a polygraph, let me just tell you that I smoked pot ten years ago.
TAYLORAnd that happens, but it's extremely rare.
NNAMDIYou're not a lawyer, but what is your understanding of the legal rights that people have going into such tests?
TAYLORWell, they are -- this is a voluntary procedure. You are agreeing that to undergo this, this is not a criminal investigation where you have to -- where the person conducting it has to read you your Miranda rights -- full blown Miranda rights. They inform you that any confession you make may be passed along to law enforcement, the justice department. And -- but they -- really in the end it's supposed to be voluntary. And as a result courts have been very hesitant to weigh in on whether on something the government should be asking or is being overbearing about the use of polygraph. Because they see it as something that the government should be able to do if they believe it's in the national security interest.
NNAMDIAnd the government says that those confessions of a personal nature that do come up are those that people simply voluntarily blurt out. You have two polygraphers you named in your series and several who were not named, who said that there were, in fact, incentives at the National Reconnaissance Office for extracting personal confessions during lie detector tests. What were those supposed incentives?
TAYLORIt included -- they included cash bonuses. And after covering the federal government for many years, I found this to be a surprise. I didn't realize that actually employees can get bonuses -- federal employees. And in this case, I was told the polygraphers were rewarded with bonuses, thousands of dollars a year, if they collected many confessions. And they're -- the agency was very interested in documenting exactly how many confessions were collected so they could track the progress of each polygrapher. And those who didn't collect enough were said to have been punished.
NNAMDIWell, the skeptics would say what proof is there of that because we're talking cash bonuses here. Does that mean that it's very difficult to find a record of these cash bonuses?
TAYLORFrom what I've been told, it's just part of the routine performance evaluation, that is it -- there's a bureaucracy where you are told annually this is what you'll receive for your performance. And as a result, it's seen as a reward for performing well. And in this case, it's collecting as many confessions as possible.
NNAMDIOn to the telephones. We'll start with Ken in Gaithersburg, Md. Ken, you're on the air. Go ahead, please.
KENGood afternoon, Kojo. Thank you for taking my call. This is a subject that's very near to my heart. I used to work as an analyst at Fort Meade and was regularly required to take polygraphs. They were not optional. It was very clear that if you didn't take a polygraph that your career was dead in the water. Hello.
NNAMDIYes, we're listening to you.
KENOkay. And sometimes they would resort to what were called stress polygraphs which were where they would do good cop, bad cop or where they would be yelling at you during the polygraph all in the attempt to essentially make the security people look good. But it was really frankly harassment of the workforce. I went through several that were horrific. Came through with no problem but the experience was really just dreadful.
KENAnd all of this was in the context at the time of a recent report, a longitudinal study that had been done at (word?) which said that there was no scientific basis and no point to using these techniques. They were simply an intimidation device. So I'm glad to hear that this is coming out.
NNAMDII'm glad you called, Ken. Marisa, Ken also said that it was clear to him that if he did not take the polygraph test, it was a career killer. Yet it is my understanding that, A, these tests are supposed to be voluntary and, B, that there are regulations that state specifically that no adverse action can be taken against an employee who refuses to take such a test.
TAYLORExactly. It is supposed to be voluntary and there -- the agencies have agreed that they're not relying entirely on these tests. But I'm told that the reality is that, in practice, these tests weigh heavily in the decision-making in terms of whether you're going to get a clearance or not. It may not be -- the entire decision may not be made based on a polygraph test or your refusal to undergo one, but it becomes a big part of the decision by the officials who make these decisions, which they're called adjudicators.
TAYLORAnd the concern becomes that this is something that if -- there are regulations. I think people who support the use of polygraphs say that polygraph can be very useful if agencies follow the regulations that are imposed on them. And that's the check on any abuses. And, you know, in this case, the people who were inside the agency say that that was not the case. The agency was not checked by those regulations.
NNAMDIWe did contact the National Reconnaissance Office to participate in today's show but the NRO declined to participate. Ken, thank you very much for your call. We move on now to John in Washington D.C. John, your turn.
JOHNJohn -- this is -- hey, Kojo Nnamdi, this is John. I just wanted to call because I'm a federal law enforcement officer. I've taken several polygraphs in the course of time to get federal law enforcement jobs. In the process of taking the polygraph, it seems like they were mostly just fishing expeditions rather than an actual scientific thing where the polygrapher would say a thing like I think you're lying to me about how you've never stolen anything in trying to get me to admit something that I hadn't actually ever done.
JOHNIt seemed like it was a -- just basically a psychological ploy rather than any kind of real wanting to know one (unintelligible) because one of the things he was questioning about I knew for certain that I had never done. And also, I know of only one agency, federal law enforcement agency that doesn't use them in the hiring process and that's the diplomatic security service because they don't think they're scientific.
NNAMDICare to comment, Marisa?
TAYLORThat's interesting. I think there are some agencies that have scaled back because of concerns that they don't know enough about the reliability of these tests. The Department of Energy at one point had a very aggressive polygraph program -- broad program and has since scaled back and only chooses a very select number of employees who have access to highly, highly sensitive information to go through these and they are very clear about only wanting to know whether somebody is a spy or a terrorist.
TAYLORAnd I think there is some hesitancy among some agencies, but on the whole, I think since 9/11, there has been concern that in most federal that they weren't doing enough before 9/11 to make sure that someone didn't slip through, and there were spies who have been caught after the fact, and I think the justification for using this is that we have to do everything possible to make sure we don't have someone spying on us. And I think on the whole the agencies also can point to these confessions where some people confess to crimes that were never disclosed.
NNAMDIWe're going to get to that in a second, because I want to read you the statement that the National Reconnaissance Office posted in response to your series of articles. It said, "The National Reconnaissance Office directs, manages, and oversees appropriate investigative inquiries including polygraph for the purposes of rendering informed security access determinations. Such inquiries and determinations are in full compliance with the law and provide the security compliance required to best protect and further intelligence community program activities and objectives.
NNAMDI"If adverse information is disclosed during the administration of a polygraph examination, the information is evaluated and forwarded to the appropriate authorities. For Privacy Act purposes, the NRO has a policy of not commenting on specific cases. The National Center for Credibility Assessment Quality Assurance Program conducted an onsite inspection of the NRO polygraph program on November 15 through 17, 2011. During that inspection, a 118 criteria in nine primary areas were reviewed. Upon conclusion of the inspection, the NRO polygraph program was found to be in full compliance with their policies and procedures, and met or exceeded all standards required of a federal government polygraph program."
NNAMDIWe're going to take a short break. When we come back, some questions raised coming out of that statement, with Marisa Taylor. She's an investigative reporter for McClatchy Newspapers. If you've called, stay on the line, we'll get to your call. If the lines are busy, go to our website, kojoshow.org, join the conversation there, or send us a tweet @kojoshow. I'm Kojo Nnamdi.
NNAMDIWelcome back. We're talking with Marisa Taylor. She's an investigative reporter for McClatchy Newspapers. We're talking about alleged government misuse of polygraphs. Just before we took that break, I read the statement from the National Reconnaissance Office, and it said specifically if adverse information is disclosed during the administration of a polygraph examination, the information is evaluated and forwarded to the appropriate authorities. It's my understanding that from what you learned, confessions that polygraphers collected were criminal in nature.
TAYLORThey were. And some of them very, very serious. They range from minor --more minor criminal confessions to very serious ones.
NNAMDIWere these criminal admissions reported and acted upon?
TAYLORI know in some cases they weren't reported to local authorities who would have had jurisdiction. For example, cases where people confessed to molesting children, and the local jurisdictions when I called them where the crime occurred told me that they were never notified.
NNAMDISo -- and in this case, it's my understanding that it was a former substitute teacher who had confessed to molesting children, and no local jurisdictions were notified. Let's get back to the phones, and talk with Stanley in Washington D.C. Stanley, you're on the air. Go ahead, please.
STANLEYYes. I think people would be more willing to take the tests if they called it by a different name. They call it the lie detector test, and aside from whether you're telling the truth or not, you could still be afraid that you'd get caught by some mistake.
NNAMDIAnd that'll make you nervous if they call it a lie detector test?
NNAMDIThat makes you nervous if they call it a lie detector test?
STANLEYWell, just the test itself is intimidating. A person may feel that there could be some, you know, some error, and he's caught. Now, if you call it a lie detector test, if you fail it, they say, mm-hmm, we detected a lie. If they don't detect it, if you pass the test, then they say, well, you could have told a lie, we just didn't detect it. Now, if you called it a truth confirmer, then if you pass the test, it confirms that you told the truth. If you fail, it doesn't mean you weren't telling the truth, they just failed to confirm it. So it reverses the burden of proof.
NNAMDIInteresting formulation. Thank you very much for sharing that with us, Stanley. I can't go further than interesting formulation. But I do have an email from someone who asked to remain anonymous who said, "Over the past ten years, I have lost out on four different jobs over one question I've been asked on a lifestyle polygraph. I am, and have been, telling the truth." What's a lifestyle polygraph?
TAYLORA lifestyle polygraph is exactly what the CIA and NSA are authorized to conduct, which are -- they are allowed to ask a limited number of questions that have to do with more personal information such as have you done drugs.
NNAMDIWell, let me continue. "Over the past ten years, I've lost out on four different jobs over one question I've been asked on a lifestyle polygraph. I am, and have been, telling the truth. I have another polygraph coming up and anticipate a physiological reaction to the question on this one as well, but I'm telling the truth. Now I feel totally hopeless." Any suggestion on how this can be mitigated? What kind of thing can this person do?
TAYLORYou know, I don't personally any suggestions because I can understand why people would feel nervous, because there's a whole psychology about this, and that's exactly what experts talk about when they say, you know, that well, it may be true that there's no scientific evidence that this is reliable in terms of detecting a lie, but there's enormous psychological power to this technique, and that is also one reason why these programs are often -- where polygraphers describe having the programs shrouded in secrecy allows them to have sort of this psychological power over people where they feel like they don't know what's going to happen, they don't know what they'll be asked, and that kind of mystery can have this powerful effect on people to the point where they may confess to something, or sometimes they just may merely get nervous, and there are cases where people have appealed the revocation of their clearance based on a polygraph test because they were able to insist and maintain that they weren't hiding anything.
TAYLORThe problem is that it is very difficult to challenge this, and it's very difficult -- it's bureaucracy that depends on the idea that it's effective, and as a result, the people who oversee these programs defend it as something that should be conducted.
NNAMDIWe placed a link on our website, kojoshow.org, to that National Academy of Sciences study that told the federal government -- advised the federal government not to use polygraphs because they're too unreliable, but the agencies that do polygraphs are guided by the Privacy Act of 1974. Can you tell us a little bit about what that law says and what is the guidance on how it should be interpreted?
TAYLORWell, very -- there are actually a number of regulations and laws that could apply to the conducting of polygraph programs like the Privacy Act, and the government is supposed to have a responsibility when collecting this information. It's supposed to protect it and make sure that if someone provides personal information that it is not disclosed without their permission, and then also, that they're not supposed to seek out highly personal information without a good reason, and in these cases, the good reason is supposed to national security.
TAYLORAnd what was happening at this agency, and also I've heard there have been questions at other agencies that the national security rationale is actually not the true reason, that it's just the mere collection of confessions to justify the existence of these programs.
NNAMDIDo we have much oversight, Congressional or otherwise of agencies that run these kinds of tests and gather this information?
TAYLORTen years after that report that you refer to by the National Academy, that said that the government shouldn't rely on polygraph, the Congress has less oversight than they did, and now at this point, the Pentagon, which has, as you said, nine programs, is no longer required to file a public accounting of what their programs achieved, and as a result, there is no public accounting before Congress of those programs, and, you know, there is -- occasionally there has been congressional interest, and when there is, there's more scrutiny and there have been more reforms, like the case of the Department of Energy.
TAYLORThere was a lot of push back by scientists at the Department of Energy a number of years ago. There were congressional hearings, and there was, as a result, the Department of Energy scaled its program back.
NNAMDIHere's James in Silver Spring, Md. James, you're on the air. Go ahead, please.
JAMESHow you doing?
JAMESOkay. I recently retired from the State Department, and the State Department does allow polygraphs that can be conducted (unintelligible) in a criminal investigation and they also conducted overseas at embassies of either embassy employees or contract personnel. However, they are voluntary.
NNAMDIAnd they are voluntary. What happens if you refuse to take them?
NNAMDIAbsolutely nothing? So why do you take them?
JAMESA lot of people just take them to either try to show their innocence in an investigative matter, or...
JAMES...they try to do it to beat the polygraph because they have no other way out.
NNAMDIOkay. Thank you very much. You wanted to comment on that, Marisa?
TAYLORSure. Just to clarify something. What I'm talking about is a clearance process, so this is purely an employment screening. This is the use of polygraph for screening potential employees or current employees for -- generally for top secret jobs, but now it's broadening to other types of jobs. There is also, of course, the use of polygraph during criminal investigations, or internal investigations that might turn into criminal investigations and that's very different because there are very clear requirement in terms of Miranda rights that people have, whereas with this kind of screening, it is seen as voluntary and, therefore, Miranda rights don't have to be read.
TAYLORSo I think there is a big difference between the use of polygraph during criminal matters and the use of it during employee…
NNAMDIThanks for your call, James. We got two emails from two different people asking to be anonymous who said their tests asked, "Have you participated in bestiality or other kinky sex questions." Any reason why these would be legitimate questions?
TAYLORI think the agencies that -- and I'm not sure whether those types of questions are asked. I've heard that they perhaps are, but these programs are very secretive, and I heard that they were asked at some agencies in the past, but perhaps are no longer asked. I am -- I think what agencies would say is that -- that believe that these questions should be asked would say that it could indicate whether someone would be a security risk.
TAYLORNow, of course, those who are concerned about the use of this say that -- doubt that it would be of any use to an agency when the agency is merely trying to protect national security. And the, you know, the interesting thing is that these questions have changed over time. It used to be that some agencies asked if someone was homosexual. That is no longer the case as I understand it at some agencies.
NNAMDIRunning out of time very quickly. What are the next steps for the two men, whistleblowers who came forward to you with their story?
TAYLOROne is -- has filed a complaint with the inspector general's office for the Pentagon and that his complaint of retaliation, and also his Complaint alleging that NRO was violating the law, is being investigated, and the other had his clearance revoked right around the time when the agency found out that I was doing a story.
NNAMDIMarisa Taylor is an investigative reporter for McClatchy Newspapers. Thank you so much for joining us.
TAYLORThank you very much.
NNAMDI"The Kojo Nnamdi Show" is produced by Brendan Sweeney, Michael Martinez, Ingalisa Schrobsdorff and Tayla Burney, with assistance from Kathy Goldgeier and Elizabeth Weinstein. Our managing producer is Diane Vogel. The engineer is Timmy Olmstead. Natalie Yuravlivker is on the phones. Podcasts of all shows, audio archives, CDs and free transcripts are available at our website, kojoshow.org. We encourage you to share questions or comments with us by emailing us email@example.com, by joining us on Facebook, or by tweeting @kojoshow. Thank you all for listening. I'm Kojo Nnamdi.
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