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Tuesday, October 05, 1999
Douglas J Hinckley
Office of Counterintelligence, CN-1
Docket No. CN-RM-99-POLY
U.S. Department of Energy
1000 Independence Avenue SW
Washington, DC 20585
Subject: Proposed Polygraph Examination Regulation (CN-RM-99-POLY)
This proposed rule should be withdrawn for both substantive and
procedural reasons as described below. No change or modification
can salvage it. The problems are not just in the specifics of
the proposed rule, but are inherent in the entire rule.
The use of the polygraph in a screening role is unsupported by
scientific studies. Because of its high error rate when used in
a screening role (see below), it will not find actual spies or
security risks but will destroy the reputations and careers of
a significant number of honest and dedicated researchers. As a
result, it will damage national security rather than enhancing
it. This will damage the reputation of the Department of Energy
by showing that the Department shirks its responsibilities and
takes easy actions instead of identifying appropriate actions.
Each of these reasons is sufficient to require that the proposed
rule be rejected.
The rule should also be withdrawn for procedural reasons. Contradictory
statements made by the members of the polygraph hearing panel
at different hearing sites demonstrated that either the panel
members were dishonest or the proposed rule is so vague that meaningful
interpretation and comment are not possible. The actions of the
Department of Energy and its hearing panel also demonstrate that
the hearings' outcome was decided before the hearings were held,
since the Department took concrete steps to implement the rule
-- including hiring the polygraph examiners, according to the
news reports -- before beginning the hearings. The Department
and the panel were only willing to consider extremely minor changes
in the details of the proposed rule's implementation -- the functional
equivalent of rearranging the deck chairs on the Titanic. This
prejudgment made a sham of the hearings, violated the hearing
requirements of federal law, and therefore requires that this
proposal be withdrawn on procedural grounds.
The Department and the panel members have repeatedly cited an
expected error rate of one in a thousand -- 0.1%. This figure
is based on unreviewed extrapolation from uncontrolled data; no
professional group supports it. The American Polygraph Association
cites an 85% accuracy for the polygraph used in an investigatory
role. The federal Office of Technology Assessment cites an accuracy
figure of 55% (after excluding "inconclusive" results)
-- barely better than flipping a coin -- for screening polygraphs,
which are inherently less reliable. Given these error rates, the
polygraph clearly cannot perform its intended role. Thus, the
proposed rule should be withdrawn.
Even if the 0.1% error rate figure were correct, there would be
a number of false positive results each year -- honest and dedicated
individuals falsely labeled as involved in espionage activities.
Panel members stated at one of the hearings that such individuals
would be removed from their jobs (moved to other duties) until
these nonspecific accusations are disproven. (The panel said at
another hearing that this would not be done. Laboratory personnel
have no way of knowing which statement -- if either -- is true.)
Aside from the permanent damage that will be done to these individuals'
careers by these false accusations, separating them from their
work and their peers, this policy turns the most basic principle
of American jurisprudence on its head and makes these individuals
guilty until proven innocent.
All three branches of the federal government have made clear that
the polygraph is unsuitable for this proposed use. Congress prohibited
general polygraph use on the grounds of its unreliability and
its inherent potential for abuse; a partial exemption of the federal
government from this law's provisions was intended to avoid a
long debate over the conditions (if any) in which the use of the
polygraph might be appropriate. The Office of Technology Assessment
(OTA) has supported the use of the polygraph in an investigatory
role, but has identified the accuracy of the polygraph as just
55% when used in a screening role. The Supreme Court has gone
further, stating in a case this summer that any use of the polygraph
is inherently too unreliable to have its results admitted as evidence
in a court of law.
The key issue is evidence. Polygraph results are not evidence.
At best, the polygraph is a tool to assist an examiner or investigator
in close observation of a subject during questioning. The finding
of truthfulness or deception is the same whether that finding
results from an investigator's instincts or from the movement
of the polygraph's needles. The OTA report's support for the use
of investigatory polygraphs is largely because such use is part
of a broader investigation, with its results based on evidence
rather than on the polygraph results. Taking any action against
any individual on the basis of polygraph results alone, without
actual evidence, as is allowed by the proposed rule, is a major
violation of both the basic principles of American jurisprudence
and the individual's due process rights.
I do not believe that panel members and DOE officials are pushing
the use of screening polygraphs with malicious intent. I believe
they are just trying to do the job they have been given, and that
they may have begun this process believing the claims of those
who initiated this proposal. As such, I think they deserve fair
warning: If they impose this plan, they and the Department should
begin setting money aside now for the billion dollar damage settlements
that will occur in cases where actions are taken against individuals
on the basis of polygraph results alone -- without supporting
evidence. In addition, the panel members have been warned in the
hearings of the screening polygraph's lack of scientific validity.
The case can therefore be made that imposing this rule, having
reason to know that it will not find spies but will damage innocent
people, constitutes negligence in the performance of their duties.
A finding of negligence would allow for verdicts holding them
individually and personally liable for damage awards. "I
was just following orders" has not been a legally acceptable
excuse for more than fifty years.
Scientific validity has not been established for screening polygraphs.
Even if they are valid, and even if they could be shown to have
as high an accuracy rate as that claimed by the American Polygraph
Association for investigatory polygraphs (85%), their accuracy
would be insufficient to perform their function under this rule.
Even if they were capable of performing this function, any action
taken against individuals solely on the basis of polygraph results
would be constitutionally invalid. In addition, the hearings on
this rule were irretrievably flawed, their results preordained
and major actions taken to implement this rule before the hearings
even began.
The proposed rule should be withdrawn on substantive and procedural
grounds. For whichever reasons you choose, I urge you to reject
this proposal in its entirety.
Gary D Cable
P. O. Box 304
Peralta, NM 87042
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