Ask the Director
Special Polygraph Edition
The Report of the House Select Committee on U.S. National Security and Military/Commercial Concerns with the People's Republic of China (known as the Cox Committee) concluded that China was able to obtain US nuclear weapons secrets and, in particular, information on the Los Alamos-designed W-88 warhead. They strongly implied that China obtained this information from Los Alamos. A damage assessment by the CIA, a blue ribbon panel chaired by Admiral Jeremiah, and a review by the President's Foreign Intelligence Advisory Board (PFIAB) agreed with the conclusion that China had obtained U.S. nuclear secrets but were unable to conclude from where. The overwhelming response to this situation by the Administration and the Congress has been to tighten security and counter-intelligence efforts at all DOE nuclear weapon sites to prevent a repeat of this situation. The most contentious of the new requirements is the proposed institution of an extensive polygraph program within the DOE nuclear weapons community.
The issue of requiring federal (DOE) and contractor (nuclear weapons labs and production plants) employees that have "need to know" access to critical nuclear weapons information to undergo polygraph examinations has created great anxiety within the laboratory. Since implementation of this requirement will have a long term effect on present and potential future employees, and ultimately our institution, it is important that we openly discuss the questions surrounding the use of polygraphs as a deterrent to espionage or the illegal disclosure of classified information.
For the past 56 years our system has been based on the principle of trust, reinforced by security background investigations and, since 1987, by a formal counter-intelligence program. DOE has used polygraphs only in limited circumstances, i.e., for investigatory purposes, for people in special access programs, and for granting of clearances on an accelerated basis. In these cases, the administration of polygraph examinations has been voluntary. This system has served the government and the laboratory well with few exceptions. However, it has not been fool-proof since there have been cases of espionage going back to Klaus Fuchs and Ted Hall up to the more recent case of Peter Lee that became public in 1997.
Other agencies, most notably NSA, CIA, and part of DoD, have used the same principle of trust, and background investigations augmented with polygraph testing either on a full or limited basis. Their experience suggests that the polygraph does not prevent espionage from occurring since they also had some notable cases. However, there is a strong belief within the government (particularly the Congress) that polygraphs serve as a strong deterrent to espionage.
Our Counter-intelligence Director, Ken Schiffer, who had close to 30 years of experience in the FBI, views the polygraph as one of a set of tools that can assist in the investigation of individuals who are suspected of illegal activities as determined by other means. In such investigations, the polygraph can be focused on very specific questions that can indicate if further investigation is required. The polygraph alone can not determine a person's guilt or innocence. This is one of the reasons why polygraphs are not accepted in courts of law.
This special edition of "Ask the Director" is being published because I have received so many questions on the polygraph issue. Some were submitted through future@lanl.gov, some have been asked of me directly, while others have been asked of members of the management team. Many of my answers here are based on DOE's draft Notice of Proposed Rulemaking on Polygraph Examination Regulations. This document is still evolving, and I expect more complete information to become available as the rulemaking progresses.
Q #1: Dr. Browne: Is polygraphing Lab employees something that Laboratory management is proposing? If not, what are the drivers?
A: This question comes up often. In February 1998, President Clinton issued Presidential Decision Directive 61 (PDD-61) that created the DOE Office of Counter intelligence. PDD-61 directed DOE to implement measures to reduce the threat to classified and sensitive information, including the use of polygraph examinations. In the wake of recent hearings on the espionage allegations, both houses of Congress also included polygraph examinations in their respective versions of the FY00 Defense Authorization Bill. Further details await the final version of the Bill after reconciliation by the House-Senate conference committee. However, since both the House and Senate bills included polygraph requirements, it's reasonable to expect that the final Bill will as well.
In addition, the DOE is preparing to publish a draft Notice of Proposed Rulemaking (NPR) in the Federal Register ("Polygraph Examination Regulations" 10 CFR Part 709). The proposed polygraph program has gathered a lot of momentum and I think that the probability of it being implemented for at least some Lab employees is high.
Q #2: Why are the Congress and DOE doing this?
A: It is clear that there is an overwhelming opinion within the Congress that "something has to be done" to address the findings of the Cox Commission and President's Foreign Intelligence Advisory Board regarding security within the DOE and the labs. Many of these people firmly believe that polygraphs will deter potential spies. Our resistance to the use of polygraphs would be interpreted as just one more example of our "arrogance" and "denial" of security problems, as mentioned in the PFIAB report "Science at its Best; Security at its Worst".
Q #3: Dr. Browne: It seems that the basic underlying issue here is one of trust. Do Congress and the DOE not trust us? Do you trust us?
A: You've put your finger on the key issue. I think that many people in the Congress and DOE do not trust us, or at least have serious concerns about our ability to protect the nation's nuclear secrets. However, I do believe that our employees are trustworthy and loyal to their country. I have not observed anything over my 29 years with the UC that would indicate otherwise.
Q #4: Do you think that it would be possible for a laboratory employee, with or without a polygraph program to violate this trust?
A: The answer is obviously yes, and the individual might not be detected if he/she has been well trained in polygraph countermeasures. This is the so-called "false negative" result.
Q #5: Do you think we have some security problems, particularly in computer security that are serious and need to be fixed?
A: The answer is most clearly yes and we are working hard to fix them. We have created an INFOSEC Policy Board, chaired by my Deputy, Bill Press, and we are implementing the Tri-Lab computer security plan.
Q #6: If the polygraph program is inevitable, who will be subject to it?
A: The DOE draft NPR foresees six categories of employee who would be subjected to counterintelligence-scope (CI) polygraph examinations:
(1) positions that DOE has determined include counterintelligence activities or access to CI sources and methods;
(2) positions that DOE has determined include intelligence activities or access to intelligence sources and methods;
(3) positions requiring access to information that is protected within a non-intelligence special access program (SAP);
(4) positions that are subject to PSAP;
(5) positions that are subject to PAP;
(6) positions that have a need-to-know regarding "the design and operation of nuclear weapons and associated use control features."We pointed out to DOE that these six categories result in large estimates of how many people would be covered at Los Alamos (see table below). From my discussions with several DOE officials late last week I expect that category 6 will be defined more precisely, resulting in a much smaller covered population.
Category
Estimated Number of Employees
Counterintelligence 10
Intelligence 510
SAP 150-250
PAP 45
PSAP 1550
Weapons Need-to-Know 2,000-3,000
Total (Approximate) 4,200-5,400
In addition, the draft NPR includes provisions for polygraphing those who elect the Accelerated Access Authorization Program (AAAP) clearance fast track; and positions where the applicant or incumbent has requested a polygraph examination to respond to questions that have arisen in the context of counterintelligence investigations or personnel security issues referred to as "exculpatory polygraph examinations".
Q# 7: What is a "counterintelligence-scope" polygraph and how is it different than other kinds of polygraph? Can a CI-scope polygraph go into lifestyle issues?
A: Counterintelligence-scope polygraphs are limited to questions concerning the examinee's involvement in espionage, sabotage, terrorism, unauthorized disclosure of classified information, and unauthorized foreign contacts. Because of their limited focus, CI polygraphs use only three or four questions. According to the NPR, DOE may not ask questions that "probe a person's thoughts or beliefs, concern conduct that has no security implications, or concern conduct that has no direct relevance to an investigation."
Q #8: My understanding is that California law forbids polygraphing employees unless it is voluntary. Is this true and, if so, what will happen to those who do not volunteer? Is there a New Mexico law on this subject?
A: As I understand it, California law permits employee polygraph examinations under two conditions: (1) if they are voluntary, in the sense that no adverse personnel action arises from refusal to take an exam, and (2) if there is a compelling government interest supporting the need for the exam. It is questionable whether the California law applies at LANL, and there is no New Mexico law on this subject.
The proposed DOE regulations say that the polygraph program will be voluntary, and defines adverse personnel action with regard to contractor employees as "discharge, discipline, or denial of employment or promotion or any other discrimination in regard to hire or tenure of employment or any term or condition of employment." If employees in positions subject to polygraph testing refuse an examination, they will likely be denied further access to the information or activity that caused the need for the test. They will apparently not be terminated because of declining the exam but they are likely to be transferred or reassigned. This approach may satisfy the California voluntariness test. A strong argument can easily be made that there is a compelling national interest to justify DOE's establishment of a polygraph program, and it is virtually certain that we will have some form of polygraph testing at Los Alamos. However, the DOE rulemaking process is in an early phase so we can still avail ourselves of the opportunity to contribute constructively to shaping the polygraph examination regulations.
Q #9: Dear Dr. Browne: We hear a lot about the "false positive" findings that the polygraph examination occasionally produces, i.e., where an innocent person is falsely judged by the polygraph examiner as being deceptive. What is the rate of false positives and what measures are foreseen to protect those falsely accused?
A: This is the issue I hear about more than any other. The peer-reviewed polygraph literature reports false positive rates for "high-quality" field studies as low as 2%, ranging up to 20%. The much simpler and shorter CI polygraph, conducted by a highly-qualified polygraph examiner, would be expected to have a lower false positive rate, perhaps as low as 1% or even less. Even so, if we assume that the Laboratory might have a covered population of some 4,000 people, there still might be somewhere between a handful and a few tens of innocent people judged as "deceptive indicated" or "no opinion".
According to the DOE NPR, people judged to be in one of these two categories would be given the opportunity to take a second CI-scope polygraph examination. If the second polygraph doesn't "clear" them, the DOE Office of Counterintelligence Evaluation will conduct an eligibility evaluation, which considers the examination results, the person's personnel security file, and other pertinent information. After the eligibility evaluation is completed a decision will be made as to whether the individual will continue to have access to sensitive information, etc. In the extreme case where there is a question of loyalty, DOE would likely refer the matter to the FBI, as required under the Atomic Energy Act.
I would like to be able to be more specific, but it's too early for that. I hope that the CI-scope polygraph false-positive rate will turn out to be much lower than the estimate given here. For example, General Habiger has stated that the false-positive rate for CI polygraphs should be as low as 0.1%. If this is the case, a person would have to score badly on two such examinations, and then would still have the benefit of the eligibility evaluation looking at the polygraph results in the light of the totality of the individual's history.
The important point here is that lab management will work with the individual and the DOE to ensure that nobody will suffer any adverse consequence based solely on the results of a polygraph examination. I will make every effort to ensure that the overall process is fair.
Q #10: Is the Laboratory doing anything to try to stop the polygraphy program, or at least to influence its design?
A: As I said in my answer to an earlier question, I think a polygraph examination program is all but certain. It has gathered so much momentum that I see no way that it won't happen. However, the Lab is providing input to DOE that we hope will help to shape the program. DOE invited us to comment on their draft NPR before its publication in the Federal Register. Our comments include a suggestion that the covered population be more precisely defined so that a smaller population would be covered by the polygraph program. Further, we proposed that consideration be given to basing the polygraph program on random sampling of this smaller covered population rather than polygraphing every member of it on a regular basis. This approach should provide the deterrent effect that the Congress and the DOE want to achieve.
Q 11: What can employees do to at least try to influence the proposed polygraph program?
A: DOE's NPR foresees two public hearings on the polygraph examination regulations to be held within 30 days of its publication in the Federal Register, one in Washington and the other in Albuquerque. Lab employees are free to signup to address the panel, or to submit written comments, in their capacity as private citizens. As private citizens Lab employees can also make their views known to their Congressional delegation.
Q #12: Are there standards for the polygraph examiners? What qualifications will be required of the examiners who polygraph us.
A: Your question about standards and quality control is a valid one. The NPR proposes that DOE adhere to the procedures outlined in the Federal Psychological Detection of Deception (DODPI) Examiner's Handbook and the Department of Defense Polygraph Institute Quality Control Manual. Further, among other qualifications not repeated here, examiners are required to have received basic Forensic Psychophysiological Detection of Deception training from the DODPI, or equivalent, and be certified by the DOE Psychophysiological Detection of Deception Polygraphy Program Quality Control Official. The DoD Polygraph Institute is considered to be the best in the country, if not the world.
Q #13: Dear John: I am a 20-year veteran of the Lab. I have had a Q-clearance and worked on classified programs for my entire career. I understand and obey classification rules and requirements. I have never given information to a foreign country and never intend to. I am a loyal U.S. citizen. Yet I am one of the 0.1% to 20% false positives. What is Lab Management going to do to protect my career, my integrity, and my income?
A: Very important question! DOE has had eight years experience of administering CI-scope polygraphs in the AAAP Program and they have had an overall "inconclusive" rate of about 0.3%, so we shouldn't have to worry about numbers in the 20% range that are based on completely different kinds of application. But let's assume that the examiner judged you to be "deceptive" after your first exam. You have the right to a second polygraph examination. If you also have trouble on the second exam, your case will be subjected to an eligibility evaluation that will look at your polygraph results in the context of your employment history, etc. Lab management will work closely with the employee and DOE to help protect people's careers. No one will suffer adverse consequences on the basis of a polygraph examination alone.
Finally, I will do everything in my power to ensure that all Lab employees receive fair and equitable treatment.
Q #14: What happens if someone doesn't "pass" a polygraph exam?
A: As I stated above, the major problem that the laboratory and the employee face is what happens if the person is not able to pass the examination, even after several attempts to resolve the issues that are giving trouble. The DOE is required to inform the FBI of the situation. If the DOE and the FBI find that there is no other evidence that points to illegal activities, the DOE can decide to prevent continued access to classified information for that person.
Although the individual is not fired, the laboratory must make every effort to find a position for the person that does not require access to the classified information that is subject to the polygraph requirement. As you might imagine, this can be difficult proposition since the large majority of our jobs require Q clearances. However, if DOE accepts our proposal to administer polygraphs to a random sample of employees, say about 100/year, and the DOE's 0.3% "inconclusive" rate applies, then I would only have to deal with this situation about once every three years on average. You can be sure that management will work closely with those affected to resolve any difficult situations that may arise on a case-by-case basis.
Q #15: Do you think that the polygraph program will affect our ability to retain existing employees and attract new employees?
A: It is not yet clear, but the initial response suggests that there will most likely be a very strong impact. It is my hope that we not lose any people before the final decisions on polygraph procedures have been made.
Q #16: What will laboratory and UC management do if DOE maintains that a very large number of employees must take polygraphs to remain in the nuclear weapons program?
A: The DOE folks working this issue are not unreasonable people. I'm confident that the final definition of the polygraph program's covered population will be acceptable. However, it is important that the polygraphy requirements specified in the new regulations allow us to maintain the right balance between ensuring the security of our information and nurturing the world-class science so necessary to the success of our national security mission. If this should not be possible, then all parties would have to re-assess their positions and options. As long as UC remains the contractor, UC and LANL management will ensure that ALL employees receive fair and equitable treatment. In the case of negative polygraph results, UC and the Laboratory will work closely with the individual and the DOE to help resolve the issue. If it cannot be resolved, the Laboratory will make every effort to find the person a different assignment at the lab.
Q #17: Will you and the senior executives of the laboratory take a polygraph if this new law is enacted?
A: Yes, we will take the polygraph exam FIRST before any other employees are required to do so.