MCT EXCLUSIVE: As polygraph screening flourishes, critics say oversight abandoned

McClatchy NewspapersDecember 6, 2012 

Editor’s note: In a story published in The Telegraph in July, McClatchy reporter Marisa Taylor wrote that The National Reconnaissance Office, one of the nation’s most secretive intelligence agencies, was pressuring its polygraphers to obtain intimate details of the private lives of thousands of job applicants and employees, pushing the ethical and legal boundaries of a program intended to catch spies and terrorists. Today, Taylor reports that a growing number of U.S. agencies are asking employees and job applicants to undergo such screening despite the fact polygraph testing is mostly banned by private employers and scientists consider it unreliable.

WASHINGTON -- For more than three decades, CIA polygraphers collected what they hoped would be damning evidence that Michael Pillsbury should be barred from seeing government secrets.

As the dossier on him grew, the China expert nonetheless advised three Republican presidents, got countless security clearances, was a top defense official under President George W. Bush and did sensitive work for the CIA.

The extent of the allegations against him finally came spilling out two years ago, when Pillsbury discovered that he was accused of making multiple confessions during polygraph tests that he later said he’d never made. When he demanded to refute the accusations, CIA security officials politely demurred. Agency officials informed his attorneys that the constitutional right to due process didn’t apply to polygraph screening.

“Polygraphers have no accountability,” Pillsbury wrote this week in a letter to James Clapper, the director of national intelligence. “This is wrong and needs to be corrected.”

The tens of thousands of Americans who now undergo federal polygraph screening every year for jobs or security clearances face entrenched secrecy and daunting legal hurdles if they challenge their tests. Most federal employees are barred from suing in court, forced instead to seek recourse from the agencies that denied their jobs or security clearances in the first place.

As a result, critics say, polygraph abuses go unchecked. Allegations of anti-Semitism and discrimination against Muslims have percolated throughout the intelligence world over the years without ever being aired in court, because the government successfully argues that it would jeopardize national security if the cases proceed.

Congress, meanwhile, has relinquished oversight despite concerns about the scientific reliability of the tests. Before the Sept. 11, 2001, terrorist attacks, lawmakers held hearings to debate the wisdom of polygraph screening. Since then, Congress has dropped a reporting requirement for the Pentagon and required Customs and Border Protection to polygraph all law enforcement applicants.

Federal polygraph programs have flourished, targeting a growing number of private contractors with more intensely personal questions than ever before. More than 70,000 people are now screened yearly.

Yet thousands of people a year could be identified as lying in polygraph screenings when they’re not, according to statistical models by the National Academies, which advises the federal government on scientific matters. Under the current system, many of them would have no way to legally challenge polygraphers’ conclusions, especially in the intelligence world.

With the help of some of Washington’s top lawyers, Pillsbury realized he was a rare exception. Despite the CIA’s insistence he couldn’t appeal outside the agency, he discovered that as a government consultant he could turn to an obscure board of administrative judges. After an almost two-year dispute, backed by the law firm Williams & Connolly, he was able to rebut the statements attributed to him and a judge granted him the top-secret access he’d requested.

The board, the Defense Office of Hearings and Appeals, is mainly set up for contractors and consultants, but even those who fall into those categories often discover they’re barred for other reasons.

Pillsbury, who was most recently a Mitt Romney adviser, declined to comment on the ruling, which hasn’t previously been revealed. A controversial foreign-policy hawk, his propensity for talking to the news media prompted a leak investigation in the late 1980s. His lawyers cited his fear of being wrongfully targeted again. The CIA accepted the board’s ruling but didn’t investigate the polygraphers.

The CIA said it couldn’t comment on any specific allegations because it was legally prohibited from speaking about individuals under privacy laws. The agency, however, defended its polygraphers as “highly trained” and “among the best in their profession.”

The 40-page ruling in Pillsbury’s 2010 appeal remains unpublished. In his letter to Clapper, obtained by McClatchy, Pillsbury said his team of lawyers, which included former Air Force Secretary F. Whitten Peters, mounted an elaborate defense to demonstrate that polygraphers from several agencies had distorted his statements.

The CIA, however, refused to give Pillsbury’s lawyers tape recordings of his alleged admissions during six polygraph tests over his career. Security officials from the CIA also declined to appear before the judges to detail the allegations that he’d leaked sensitive information. His lawyers called 14 witnesses to rebut the alleged admissions, including three senior CIA officials.

“More than 1,000 pages of documents were introduced to prove that I had not made the alleged admissions or even known what I supposedly `admitted’ to,” Pillsbury wrote in the letter.

One of the polygraphers accused of distorting Pillsbury’s statements previously faced allegations of wrongdoing.

When Army engineer David Tenenbaum lost his security clearance after a polygraph, he accused the Defense Department polygrapher, along with others, of targeting him because he’s an Orthodox Jew. The Justice Department persuaded the federal judge that the lawsuit couldn’t proceed because it would jeopardize national security.

The Pentagon inspector general, however, concluded in 2008 that Tenenbaum had been singled out for “unusual and unwelcome scrutiny because of his faith” and wrongly investigated as a suspected Israeli spy. His treatment from 1992 to 1997, the inspector general’s report concluded, amounted to discrimination, “whether actionable or not.”

Tenenbaum got his clearance back, but he’s since filed a new complaint with the Army alleging that he still faces retaliation.

“There was no question he was a victim of discrimination,” said Dan Harold, one of his lawyers. “Yet to this day, there is no justice in his case.”

Ilana Greenstein, a decorated former CIA officer, said the CIA told her outright that federal anti-discrimination laws didn’t apply to national security clearances.

Greenstein said that during her first polygraph screenings, she was asked questions related to her Jewish faith, including whether she’d visited any synagogues overseas. Although she had no ties to Israel, she thinks it was assumed that she could be a spy.

“They asked me how I felt about Mossad,” she recalled. “I remember being confused and thinking, `Is this because I’m Jewish? I haven’t even been to Israel.’ “

Soon after, she attended a talk by a top polygraph official, and she asked about the line of questioning.

“He made a joke out of it,” she said. “He told me to write it down on a piece of paper and put it in the suggestion box.”

Greenstein, who was with the agency from 2002 to 2008, contends that what she describes as anti-Semitism became more intense years later, when she raised concerns internally about mismanagement in Iraq, where she served. During what was supposed to be a routine five-year review of her security clearance, the polygraph screening became a full-blown interrogation, she said. When she described her experiences to officials who handle discrimination complaints, they told her that her claims of anti-Semitism appeared valid.

“They seemed very sympathetic,” she said. “But they told me that they couldn’t help me.”

The CIA denies that it considers itself immune from discrimination complaints. In a response to Congress’ inquiries about another case, the agency said such allegations were false.

“The agency does not discriminate . . . in granting, denying or revoking security clearances,” one official wrote in a 2010 letter obtained by McClatchy.

John Sullivan, a retired longtime CIA polygrapher who testified on Pillsbury’s behalf, said he’d often discovered that people had exaggerated or lied about mistreatment when he reviewed tapes of their sessions. But in the 1980s, the agency discovered that seven polygraphers had rigged the tests so that applicants and employees would pass, and it fired them. Another polygrapher falsely claimed that two people had failed. While she also was fired, she did not lose her security clearance.

Sullivan said the problem was that the polygraph division was left to police itself.

“That is similar to asking the fox to guard the chicken coop,” he said, adding that one top agency official told polygraphers, “If you aren’t getting complaints, you are not doing your job.”

All polygraphers are trained at the same federal academy and are warned against engaging in unethical and discriminatory behavior. The academy also routinely inspects polygraph programs to ensure that their practices are in line with federal standards.

But critics say the inspections are cursory and often miss major problems. The academy inspected the National Reconnaissance Office, yet it didn’t appear to pick up on a major internal controversy. McClatchy earlier this year detailed allegations by current and former polygraphers that they were pushed to collect intensely personal information in violation of Pentagon rules and were rewarded with bonuses for doing so. The spy satellite agency is supposed to be sticking to national security questions under Pentagon rules, but in one of the violations a former polygrapher said he was pressured to interrogate a woman about her molestation as a child.

Such allegations aren’t isolated to intelligence agencies. Ten contracted court translators allege that they were required to be screened by Drug Enforcement Administration polygraphers in violation of federal law, which prohibits the government from polygraphing certain contracted workers. The translators describe in court records how they were asked bizarre personal questions such as whether they’d engaged in bestiality. When some of them failed, they were fired, according to the lawsuit, first reported by the weekly publication San Diego CityBeat. The DEA declined to comment on the case.

In a recent letter to Clapper, Rep. Rush Holt, a New Jersey Democrat, urged the director to “move us beyond the use of such an unreliable instrument as the polygraph,” citing the alleged abuses at the National Reconnaissance Office as reason for alarm.

“Such voyeuristic interrogation” brings to mind “tactics employed by our former Soviet enemies,” the retired Princeton University physicist wrote.

In his letter, Pillsbury, a former Republican congressional staffer, said agencies didn’t have to do away with polygraph, just ensure better accountability. He recommended setting up an independent ombudsman to assess polygraph complaints and expanding the right to appeal to more employees and contractors.

Many agree that decisions based on polygraph screening at all agencies would have more credibility if employees or job applicants could get taped copies of their interrogations. Mark Zaid, a lawyer who handles security clearance appeals, said he was surprised to discover that a client’s experience wasn’t as invasive as he’d thought when, on one rare occasion, he received a copy of a taped session.

“He told me that the polygrapher had accused him of lying and screamed at him, but when I heard the tape it was clear that the polygrapher had done no such thing,” Zaid said. “I think he was so upset he genuinely felt he was being yelled at.”

The federal government fends off attempts to acquire detailed information about polygraph screening. With few exceptions, employees and applicants aren’t permitted copies of taped interrogations or allowed to see the polygraph charts used to determine whether they’re lying. The secrecy can be intimidating.

“You’re often told that a national security clearance is a privilege, not a right,” said Kel McClanahan, a lawyer who challenges the government’s decisions in such cases. “That argument persuades people to keep quiet, because they’re terrified of going up against the government.”

One intelligence analyst was denied details about what he was alleged to have admitted during his polygraph despite his persistent inquiries over years.

The CIA and Defense Intelligence Agency, the two agencies who rejected the analyst’s application, refused to say. He tried to enlist Congress’ help, but was ignored. Under the pseudonym John Doe, he sued in federal court for access to his employment file and encountered more resistance, led by the Justice Department.

“It is a grave injustice for me to be denied any opportunity to correct these misconceptions,” the intelligence analyst wrote in a complaint to the CIA inspector general that went unheeded. “It is tantamount to someone mistyping my Social Security number into the national crime database ... and refusing any appeals, despite the fact that it was a documentable mistake.”

To this day, the applicant hasn’t been given all the details. As part of a rare court settlement, the CIA agreed to insert into its official records his statement that some of the allegations -- all minor infractions -- were inaccurate. The CIA, however, refuses to remove information that he disputes.

Another CIA applicant tried to get copies of her polygraph tapes so she could appeal findings that she was a risk to national security due to “personal conduct,” according to records obtained by McClatchy. She was denied them, although she felt that polygraphers had interrogated her about her reported rape and miscarriage without cause. Left without a record of her polygraph tests, she tried to appeal inside the CIA twice and lost.

The woman, who asked not to be named, also attempted to file a complaint with the polygraph division. But her letters came back to her twice, after two different addresses she was told to send them to were wrong, according to copies of documents obtained by McClatchy. In 2010, she tried to go to the office that handles complaints of discrimination against the CIA but was referred to the polygraph division.

When she turned to lawmakers, they told her they could do nothing, after the CIA denied to Congress that it had handled her case improperly.

“In the area of security clearances, under current law the opportunities for review are limited,” Democratic Senator Dianne Feinstein of California wrote in response to the complaint.

After five years without a result, the applicant gave up.

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