Comments from the hearing in Los Alamos, New Mexico.
September 17, 1999

NORMAN D. DELAMATER

My name is Norman D. Delamater. I'm a technical Staff Member in X-Division at Los Alamos National Laboratory. Thus, the proposed polygraph regulations will affect me personally. However, the following comments are my personal opinion and do not reflect Laboratory policy.

Employees of the DOE national laboratories at Livermore, Los Alamos and Albuquerque would be subject to polygraph examinations on a scale which would be unprecedented in our nation's history. The proposed DOE rule would permit blanket testing of thousands of employees with no
determination of probable cause. This would appear to be in violation of the Fourth Amendment to the U.S. Constitution. Laboratory employees would also be denied legal counsel during any phase of the polygraph interrogations (section 709.22). The DOE rule should allow access to legal counsel if an employee desires. Laboratory and University of California policy (AM 702.09) would require employees to waive all legal rights against the University upon volunteering for any polygraph examination. Thus innocent employees would not be able to seek redress in the courts in the event of "false positive" negative consequences of the polygraph. These polygraph examinations, which are known to be inaccurate from past experience at the CIA and from academic studies conducted for the American Psychological Association, nonetheless could have the effect of ruining the careers of hundreds of loyal citizens and employees at the national
laboratories.

The DOE acknowledges in section II. that polygraphs are inaccurate. The scientific literature in this area quotes "false positive" rates as high as 10-50%. The literature also suggests that while polygraph examination may be helpful in criminal investigations, it's use as a screening tool is not at all valid or proven to be accurate. It is highly probable that hundreds of loyal Laboratory employees will be facing false positive results and the consequences. This is reminiscent of the McCarthy era when careers were ruined on unfounded charges and allegations. The position of the government appears to be that one is guilty of espionage until proven innocent by the unreliable polygraph. I am extremely concerned that my constitutional rights as a citizen of this country are being abused by the proposed polygraph policy of the DOE. Trampling on the constitutional rights of citizens is a serious matter, even in the name of national security. The DOE has not struck an appropriate balance between protecting citizen's rights and protecting national security with these proposed rules and regulations. At the very least, DOE should request a serious academic study on the effectiveness of polygraphs in screening situations. The National Academy of Sciences should be commissioned to perform this study as soon as possible.

The DOE claims in section 709.23 that consenting to a polygraph examination is "voluntary". This is an example of legal nonsense. The examinations are obviously not truly voluntary since the DOE proposes to require the examination to maintain an individual's security clearance. If
an employee would refuse the examination as a matter of principle, the result would be loss of clearance and eventually loss of job. This is a violation of University of California policy as set forth in the administrative manual section AM 702.08 which states that refusal to take
any ploygraph examination could not result in an "adverse" job consequence. Section 709.25 should be modified to very clearly state that no individual's Q clearance could be suspended or revoked due only to the results of, or a refusal to take a polygraph examination. Rather, other
evidence must be gathered by DOE to justify suspending anyone's clearance on counterintelligence concerns.

The proposed regulations in section 709.21 states that 48 hours notice will be provided an individual prior to the polygraph examination. I would suggest that this time period is simply inadequate. Rather a two week period should be allowed so that personal schedules can be arranged to suit the polygraph schedule and so that an individual, should he desire, can obtain adequate legal advice and make proper preparations prior to the exam to protect his constitutional rights.

The proposed regulations in sections 709.4 are too broad in describing who would be subject to the polygraph examinations. According to these proposed rules, virtually everyone with a DOE Q clearance would be subject to the polygraph. I would suggest that the rule should be rewritten to
include only those with required access to Top Secret National Security Information and not all those with Q clearances.

The proposed regulations in sections 709.11 and 709.12 do not suitably restrict the question subject areas during the polygraph examinations and show that DOE is truly on a "fishing expedition" to unfairly interrogate employees under unfair and intimidating conditions, i.e. no legal counsel is allowed for the employee. Section 709.12 allows different questions for
each individual based on pre test interrogations. If there is not a standardized set of questions to properly calibrate the test, how can the claim possibly be made that these exams are fair to the employee? How can one expect a very low false positive rate of 1% when everyone takes a
different test?

Regarding sections 709.31-32, training of polygraph examiners: It is stated that polygraphers will have at least 40 hours training. Am I to understand that the continuation of my longstanding career as a loyal employee of Los Alamos National Laboratory will be in the hands of someone
with as little as 1 week's training as a polygrapher? Is this fair to loyal long-time Laboratory employees? Is this fair to anyone?

Finally, in Section II, DOE acknowledges that approval of these polygraph regulations may make it more difficult for the Laboratory to recruit and maintain competent and qualified employees. You bet it will! I and some of my colleagues have already stopped recruiting new Ph.Ds
precisely because of the new conditions of official distrust and intimidation at the Laboratory. Passage of these regulations regarding polygraph examinations of DOE employees will not improve national security, rather the opposite will be true, national security will suffer as the
national laboratories become mediocre institutions while the best and brightest scientists leave to find work in more hospitable environments. A credible stockpile stewardship program is a grand technical challenge requiring the most capable scientists to achieve its goals. Real
improvement in national security occurs as a result of the great science our national labs produce. Not from more security lectures, more barbed wire to isolate us and not from polygraphs.

A final personal statement: I am outraged at the humiliating and insulting treatment I am receiving from my government! I find myself being labeled a traitor by my government with no supporting evidence and being forced to prove my innocence to Secretary Richardson via the unreliable
polygraph technique. This is not the American way, this is nothing less than police state tactics. History will be the judge of your actions today. Make the right decision and reject polygraphs.

RHON KEINIGS

My name is Rhon Keinigs. I'm a technical Staff Member in X-Division at LANL. My statement to you here today is as follows:

The work we do at Los Alamos is vital to national security, and we work hard to ensure that certain information is not compromised. However, Congress is searching for a foolproof method of ensuring security, and none exists.

Polygraph screening is being implemented in the hope of improving security when, in fact, logic indicates the opposite will result. I have found no one who thinks polygraphing is a credible approach. Personally, I believe it will fail, for several reasons: (1) Widespread polygraphing will seriously degrade the science base necessary to ensure the continuance of a reliable, nuclear deterrent. (2) Polygraphing is an infringement of our constitutional rights to protection from unreasonable search. (3) Such a program has little, if any, scientific merit.

If polygraphing proceeds it will certainly erode the relationship between D.O.E. and the laboratory, a relationship that has been based upon trust and, historically, a unified sense of mission. Degrading this environment will do unforeseen damage to our ability to ensure the reliability and safety of the nuclear stockpile. If polygraphing is widespread, many committed employees will terminate their relationship with LANL. Many others who stay will no longer feel a sense of duty and purpose. Recruitment of new staff, particularly in the weapons programs, will be seriously jeopardized. Such trends will weaken the science base that supports the primary mission of the Laboratory. These very issues were emphasized in a letter authored by the chairman of the U.C. President's Council on the National Laboratories, and unanimously endorsed by the Council. In this letter it was strongly recommended that widespread polygraphing not be pursued.

Agreeing to a polygraph is not part of the terms of employment at Los Alamos. Testing of this sort is an infringement of our constitutional rights as citizens to protection against unreasonable searches. Polygraphing is unreasonable in that it basically entails a probe of the nervous system, it is unscientific, and it could be considered a form of trial by machine. Certainly a just cause for administering widespread polygraphs has not been presented.

A preponderance of scientific evidence indicates that polygraphing used as a widespread screening tool is without merit. In testimony given before the U.S. Senate Committee on the Judiciary, Dr. Drew Richardson of the FBI Science laboratory recommended the FBI abandon widespread polygraphing. This was based upon several factors, including nearly universal agreement among scientists that polygraph screening is invalid. Another reason was the associated monetary costs of such a program. Prof. David Lyken, of the University of Minnesota, writing in the scientific journal, NATURE, cites several credible field studies of the Control Question Test that indicate false-positive results of nearly 33% . This test is a standard technique in specific issue situations such as espionage. Yet, we have been informed by Mr. David Renzelman, polygraph coordinator for D.O.E., that results obtained at the Polygraph Institute indicate false-positives of less than 1 %. Obviously, polygraphing requires further validation. I ask, would Congress be satisfied if the stockpile was so poorly validated?. Los Alamos, Livermore, and Sandia National Labs, have been entrusted to certify the stockpile for the next 30 years. But we are being told to accept standards that are far lower than the standards by which we are expected to perform our jobs. Members of Congress should rethink this problem, and explore finding a truly viable solution to improving security. The price tag of the proposed program will be the undermining of the science base required to maintain the strongest national defense, and the immeasurable damage that could be done to many of the government's most conscientious employees. The mission of the Stockpile Stewardship Program has as its ultimate and underlying purpose, the protection of the freedoms shared by all U.S. citizens, and that includes those of us working at the weapons laboratories. As loyal Americans, we deserve better.

KEN LAGATTUTA

My name is Ken LaGattuta. I'm a Technical Staff Member in X-Division, here at LANL, where I've worked for the past 13 years. My views concerning the DOE's proposed polygraphing initiative for the three weapons labs, as described in the entries labeled 10 CFR Parts 709, 710, and 711 for August 18, 1999 of the Federal Register, are negative --- very negative!

First, the justication offered as motivation for this drastic change in investigative procedure is unconvincing to me; viz., the current security flap surrounding the POSSIBLE compromise of design information by unknown sources somewhere inside the US weapons complex does not seem suffucient motivation for this change. Indeed, as admitted by the Rudman Committee, this breach (if it occurred at all) did not necessarily happen at LANL, or at any one of its two sister labs, LLNL and SNL.

Second, the DOE's polygraphing initiative, as currently described, is not fully defined within a very important area. In particular, the actual extent of the proposed program is uncertain as it affects individuals falling into category 6, of section 709.4. These are people holding: "Positions that DOE has determined have a need-to-know or access to information specifically designated by the Secretary or his delegatee regarding the design and operation of nuclear weapons and associated use and control features." It is unclear whether this is interpretable as a blanket category for all of X-Division, or even for all Q-cleared individuals. However, it does appear that this category will include people beyond those in special access programs (SAP), since these were specifically mentioned earlier in 709.4, under category 3. (Of course, people already in special access programs have previously signed statements acknowledging their willingness to be polygraphed, as a condition of their obtaining access.)

Third, and most importantly, the polygraphing PROTOCOL described in the Federal Register entry is unacceptably invasive of privacy. To wit, Section 709.15, part (a) states: "If following the completion of the polygraph test there are any unresolved issues, the polygraph examiner must conduct an in-depth interview of the individual to address those unresolved issues." This smacks to me of an interrogation, and indeed this is just how the usually many hour-long post-polygraph interview has often been described.

It appears to me that the post-polygraph interview is the crux of the entire polygraph protocol, and is the part which is the most offensive. During this interview (or interrogation) the interviewee (or suspect) is held in isolation by the examiner and induced to provide whatever information that the examiner suggests will "help him to understand the nature of the suspect's polygraph responses". The suspect may be induced to reveal embarassing information, painful personal information, or information which may even compromise his 5th Amendment rights against self- incrimination. This induced information being open-ended, and therefore unpredictable at the outset, the suspect is also being asked, generally, to give up his 4th Amendment rights prohibiting unreasonbable searches. And he is also asked to do this voluntarily. Furthermore, according to present entries in LANL's personnel policy manual, he will be required to sign a statement absolving LANL of any legal liability should there be negative consequences to himself as a result of having submitted to the polygraph examination. He must also sign this legal waiver of LANL's financial responsibility to himself, voluntarily.

I emphasize that the post-polygraph interview is probably usually the most effective part of the entire polygraph protocol, insofar as it might be expected to produce the most security related information. But, one imagines too that essentially always this information would be of only microscopic significance, relating to the most trivial of transgressions, and containing nothing of real importance to national security. It is unfortunate, therefore, that the DOE proposes to use such a large stick to beat such a small dog.

In conclusion, the interview or interrogation part of the polygraph protocol seems to me to be, by far, the most obnoxious element in their proposal. So much do I object to this interrogation, or potential interrogation that, at this late date in my career, and after already having spent 13 years at this Laboratory, I will likely refuse to be polygraphed under this protocol, should I be asked.

JOHN LONGER

I will not waste your time today trying to convince you that your polygraph machines are useless. No, you have already made up your mind these precious little machines are just absolutely wonderful. However, I will make a few comments.

In reading over the proposed regulation I missed the part where members of congress are going to take your polygraph test along with us at the nuclear labs. If it's good enough for the little guy isn't it good enough for our bosses? Why aren't the members of congress taking the test? Everyday, in the news, I hear the Republicans and Democrats accuse each other of selling out our national interests. Well your little box could clear the air once and for all. Since you believe these tests to be so great can we now save the taxpayers money by just giving new hires the polygraph test and forget about background investigations. Why, let's take it another step forward and go for true justice in this country. Take the polygraph to the federal prisons and release everyone who passes the test. If they pass, they are innocent aren't they? Surely the 99 point something percent accuracy that you claim is a better rate than our court system can produce.

It is my understanding, from statements made by proponents of the test, that if an employee passes the polygraph test they are in the clear. But of course passing the test really doesn't mean much in light of past events? As an example I offer the reported story that Wen Ho Lee passed a polygraph test in November 1998. If this reported story is true why did you continue your investigation of this man? Didn,t you trust your own machine? I have also read accounts that other reported spy's have passed a polygraph test to include Aldrich Ames, a CIA operative. Let me tell you what I think these tests will accomplish.

ERIC M. NELSON

My name is Eric M. Nelson. I'm a Technical Staff Member in X-Division at LANL. My statement here today is as follows:

In cooperation with DOE, Los Alamos has made a commitment to strive for zero security and safeguard violations. This commitment is part of LANL's "six zeros" policy, which includes similar goals for safety, environmental and ethics incidents. It is an excellent policy which recognizes that perfection cannot be obtained instantly; that training, practice and continuing education are the tools to achieve these goals; and that disciplinary action is a last resort for those individuals that fundamentally refuse to cooperate.

Unfortunately, recent actions by DOE and lab management have turned LANL's laudable "six zeros" policy into a policy of zero credibility.

For example, two of my colleagues have cooperated with recent DOE and LANL security investigations concerning apparently minor infractions. Despite their cooperation, they were harassed, threatened and intimidated by DOE and LANL. You revoked both of their clearances. Distinguished, productive careers--careers important to our nation's security and prosperity--have been ruined unfairly, unnecessarily, and to our nation's detriment.

I wish I could be more specific about these cases, but I cannot. When the time arrives to share with the staff lessons learned from security incidents involving our loyal colleagues, we are told "we have no need to know." Imagine that. We, the individuals most responsible for improving and maintaining security, including avoidance of past mistakes, have no need to know. This by itself is another glaring example of LANL and DOE's incredibility. Not only are we injured and insulted, but we are also rendered ineffective in reducing the security incidents for which we are responsible.

This shameless behavior must be rectified before security policies can have a positive impact. Allow me to suggest how this shameless behavior adversely affects the proposed polygraph examinations.

Numerous individuals have good cause to doubt statements that DOE is only looking for spies and saboteurs, that admissions of "stupid mistakes" will not be held against polygraph subjects, and that DOE and LANL will be equitable in its subsequent treatment of employees.

Many of these individuals will be cited for "unresolved issues" in the polygraph examination. At this point such an individual will likely cooperate only superficially with the polygraph examiner's attempt to resolve the unresolved issues. The examiner can threaten dire consequences for lack of significant cooperation, but the individual is no longer motivated to participate. He or she is damned regardless of any further cooperation. It is likely better to be cited for unresolved issues and the superficial charges manufactured during the subsequent investigation than to face certain prosecution for admissions made in an attempt to appease the polygraph examiner.

In this situation both parties lose. The concerned but loyal and trustworthy individual is merely trying to minimize his or her losses. DOE loses the talent and experience of the individual. DOE further erodes its own credibility. Finally, DOE likely knows no more than it did before the polygraph investigation.

This situation strikes at the heart of the proposed polygraph tests. You are depending on the cooperation of trustworthy and loyal individuals in order to ferret out a few spies and saboteurs. In the best of circumstances this is merely a suspect strategy. Under current circumstances, it is simply untenable because you will be burdened with concerned individuals--those individuals who consider DOE untrustworthy. I have no confidence that you will be able to identify an actual spy in their midst. I am confident that you will cause extensive and irreparable damage to the nation's common defense and security.

There are alternatives. It is possible for both DOE and its various stakeholders to win. Regardless of the decision on polygraphs, DOE should abandon its adversarial attitude toward the national labs and its employees. Adopt an open and candid atmosphere for discussion of security issues. Refrain from seeking disciplinary action for every violation or infraction. Turn them instead into lessons and reminders for the rest of us--the rest of us who do have a need to know.

The number of reported incidents may increase because the environment will be conducive to fair and accurate reporting of incidents, but the number of reported and actual incidents will surely fall as we learn from our mistakes and develop effective strategies and habits.

In the likely event that you do not heed the numerous warnings about the dangers of polygraphy, I suggest the following additions to section 709.15 as a first step.

(1) DOE will not seek disciplinary action for admissions of security infractions or minor security violations during the polygraph examination.
(2) DOE will compile such admissions and combine them with other sources such as security audits in order to educate the authorized workforce about the frequency, severity and manner of various security infractions and violations. (3) DOE will use such admissions only as a basis for developing effective strategies to mitigate the risk of security incidents.

Thank you for your attention.

 

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